Cite as 2014 Ark. 188
SUPREME COURT OF ARKANSAS No. CV-13-531
Opinion Delivered April 24, 2014
PRO SE APPELLANT’S MOTION FOR EARNEST CHAMBLISS APPOINTMENT OF COUNSEL APPELLANT [LEE COUNTY CIRCUIT COURT, NO. 39CV-13-27] v. HONORABLE L.T. SIMES, JUDGE STATE OF ARKANSAS APPELLEE APPEAL DISMISSED; MOTION MOOT.
PER CURIAM
In 2007, appellant Earnest Chambliss was found guilty by a Pulaski County jury of two
counts each of aggravated robbery and theft of property arising from the aggravated robbery of
two different banks, two days apart. The charges were joined for trial. The sentences on all
counts were enhanced for use of a firearm pursuant to Arkansas Code Annotated section 16-90-
120 (Repl. 2006). An aggregate term of 672 months’ imprisonment was imposed. The Arkansas
Court of Appeals affirmed. Chambliss v. State, CR-08-210 (Ark. App. Oct. 1, 2008) (unpublished)
(original case No. CACR-08-210).
After the judgment was affirmed, appellant timely filed in the trial court a pro se petition
for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2007). Relief was
denied, and we affirmed the order. Chambliss v. State, 2011 Ark. 12 (per curiam).
In 2013, appellant, who was incarcerated at a unit of the Arkansas Department of
Correction located in Lee County, filed a pro se petition for writ of habeas corpus in the Lee Cite as 2014 Ark. 188
County Circuit Court.1 In the petition, he raised the following claims: the felony information
failed to specify the brand name, model, and caliber of the firearm used in commission of the
offenses, and the State failed to prove beyond a reasonable doubt that a firearm was used; the
charges should have been severed for trial, and his trial attorney was ineffective for failure to
obtain a severance; the testimony of several witnesses varied from the witnesses’ original
statements to police, and the witnesses’ identifications of appellant as the perpetrator of the
offenses were unreliable and inaccurate and should not have been admitted into evidence; the
prosecutor used improper methods to obtain a conviction.
The circuit court denied the habeas petition, and appellant lodged an appeal of that order
in this court. Now before us is appellant’s motion for appointment of counsel to represent him
on appeal.
We dismiss the appeal, and the motion is moot inasmuch as it is clear from the record
that appellant could not prevail on appeal. An appeal of the denial of postconviction relief,
including an appeal from an order that denied a petition for writ of habeas corpus, will not be
permitted to go forward where it is clear that the appeal is without merit. Davis v. Hobbs, 2014
Ark. 45 (per curiam); Lukach v. State, 369 Ark. 475, 255 S.W.3d 832 (2007) (per curiam).
A writ of habeas corpus is proper only when a judgment of conviction is invalid on its
face or when a trial court lacked jurisdiction over the cause. Glaze v. Hobbs, 2013 Ark. 458 (per
curiam); Abernathy v. Norris, 2011 Ark. 335 (per curiam); Davis v. Reed, 316 Ark. 575, 873 S.W.2d
524 (1994). The burden is on the petitioner in a habeas-corpus petition to establish that the trial
1 As of the date of this opinion, appellant remains incarcerated in Lee County.
2 Cite as 2014 Ark. 188
court lacked jurisdiction or that the judgment-and-commitment order was invalid on its face;
otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Young v.
Norris, 365 Ark. 219, 226 S.W.3d 797 (2006) (per curiam). The petitioner must plead either the
facial invalidity or the lack of jurisdiction and make a “showing by affidavit or other evidence
[of] probable cause to believe” that he is illegally detained. Id. at 221, 226 S.W.3d at 798.
The allegations raised by appellant that were claims of trial error and insufficiency of the
evidence could have been, or were, raised at trial. The allegations did not call into question the
trial court’s jurisdiction or the facial validity of the judgment-and-commitment order entered in
appellant’s case. See Daniels v. Hobbs, 2011 Ark. 192 (per curiam) (holding that allegations of an
illegal search and insufficiency of the evidence were not grounds for issuance of the writ).
Assertions of trial error, including claims pertaining to due process and equal protection, are not
sufficient to implicate the facial validity of the judgment or the jurisdiction of the trial court. Hill
v. State, 2013 Ark. 413 (per curiam); see also Smith v. Smith, 2013 Ark. 481 (per curiam) (Due-
process claims are not cognizable in a habeas proceeding.); Bliss v. Hobbs, 2012 Ark. 315 (per
curiam); McHaney v. Hobbs, 2012 Ark. 361 (per curiam); Craig v. Hobbs, 2012 Ark. 218 (per
curiam) (Attacks on the sufficiency of the evidence and the admissibility of evidence are not
cognizable in a habeas proceeding.).
With respect to the sufficiency of the felony information, we have consistently held that
the proper time to object to the form or sufficiency of a charging instrument is prior to trial.
Jones v. State, 2014 Ark. 37 (per curiam); Murry v. Hobbs, 2013 Ark. 29 (per curiam); see also Davis
v. State, 2011 Ark. 88 (per curiam); Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991); England
3 Cite as 2014 Ark. 188
v. State, 234 Ark. 421, 352 S.W.2d 582 (1962). We have declined to review the sufficiency of an
information on appeal when there was no proper objection in the court below. Prince, 304 Ark.
692, 805 S.W.2d 46. If we considered the issue to be jurisdictional, we could have overlooked
the failure to object and reversed the conviction, if necessary, on our own motion. See Jones v.
State, 297 Ark. 485, 763 S.W.2d 81 (1989). Accordingly, appellant here did not establish that the
trial court lacked jurisdiction by virtue of a defective information.
Jurisdiction is the power of the court to hear and determine the subject matter in
controversy. Bliss, 2012 Ark. 315; Culbertson v. State, 2012 Ark. 112 (per curiam). Appellant
offered nothing to demonstrate that the trial court in his case did not have subject-matter
jurisdiction to hear and determine cases involving violations of criminal statutes. Id. We will
treat allegations of void or illegal sentences similarly to the way we treat problems of subject-
matter jurisdiction. Friend v. State, 364 Ark. 315, 219 S.W.3d 123 (2005) (per curiam)(citing Taylor
v. State, 354 Ark. 450, 125 S.W.3d 174 (2003)). However, a habeas-corpus proceeding does not
afford a prisoner an opportunity to retry his case, and it is not a substitute for direct appeal or
postconviction relief. Bliss, 2012 Ark. 315; Van v. Hobbs, 2011 Ark. 287 (per curiam); Meny v.
Norris, 340 Ark. 418, 420, 13 S.W.3d 143, 144 (2000) (per curiam).
As to the claims raised by appellant that were assertions, or could have been construed
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Cite as 2014 Ark. 188
SUPREME COURT OF ARKANSAS No. CV-13-531
Opinion Delivered April 24, 2014
PRO SE APPELLANT’S MOTION FOR EARNEST CHAMBLISS APPOINTMENT OF COUNSEL APPELLANT [LEE COUNTY CIRCUIT COURT, NO. 39CV-13-27] v. HONORABLE L.T. SIMES, JUDGE STATE OF ARKANSAS APPELLEE APPEAL DISMISSED; MOTION MOOT.
PER CURIAM
In 2007, appellant Earnest Chambliss was found guilty by a Pulaski County jury of two
counts each of aggravated robbery and theft of property arising from the aggravated robbery of
two different banks, two days apart. The charges were joined for trial. The sentences on all
counts were enhanced for use of a firearm pursuant to Arkansas Code Annotated section 16-90-
120 (Repl. 2006). An aggregate term of 672 months’ imprisonment was imposed. The Arkansas
Court of Appeals affirmed. Chambliss v. State, CR-08-210 (Ark. App. Oct. 1, 2008) (unpublished)
(original case No. CACR-08-210).
After the judgment was affirmed, appellant timely filed in the trial court a pro se petition
for postconviction relief under Arkansas Rule of Criminal Procedure 37.1 (2007). Relief was
denied, and we affirmed the order. Chambliss v. State, 2011 Ark. 12 (per curiam).
In 2013, appellant, who was incarcerated at a unit of the Arkansas Department of
Correction located in Lee County, filed a pro se petition for writ of habeas corpus in the Lee Cite as 2014 Ark. 188
County Circuit Court.1 In the petition, he raised the following claims: the felony information
failed to specify the brand name, model, and caliber of the firearm used in commission of the
offenses, and the State failed to prove beyond a reasonable doubt that a firearm was used; the
charges should have been severed for trial, and his trial attorney was ineffective for failure to
obtain a severance; the testimony of several witnesses varied from the witnesses’ original
statements to police, and the witnesses’ identifications of appellant as the perpetrator of the
offenses were unreliable and inaccurate and should not have been admitted into evidence; the
prosecutor used improper methods to obtain a conviction.
The circuit court denied the habeas petition, and appellant lodged an appeal of that order
in this court. Now before us is appellant’s motion for appointment of counsel to represent him
on appeal.
We dismiss the appeal, and the motion is moot inasmuch as it is clear from the record
that appellant could not prevail on appeal. An appeal of the denial of postconviction relief,
including an appeal from an order that denied a petition for writ of habeas corpus, will not be
permitted to go forward where it is clear that the appeal is without merit. Davis v. Hobbs, 2014
Ark. 45 (per curiam); Lukach v. State, 369 Ark. 475, 255 S.W.3d 832 (2007) (per curiam).
A writ of habeas corpus is proper only when a judgment of conviction is invalid on its
face or when a trial court lacked jurisdiction over the cause. Glaze v. Hobbs, 2013 Ark. 458 (per
curiam); Abernathy v. Norris, 2011 Ark. 335 (per curiam); Davis v. Reed, 316 Ark. 575, 873 S.W.2d
524 (1994). The burden is on the petitioner in a habeas-corpus petition to establish that the trial
1 As of the date of this opinion, appellant remains incarcerated in Lee County.
2 Cite as 2014 Ark. 188
court lacked jurisdiction or that the judgment-and-commitment order was invalid on its face;
otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Young v.
Norris, 365 Ark. 219, 226 S.W.3d 797 (2006) (per curiam). The petitioner must plead either the
facial invalidity or the lack of jurisdiction and make a “showing by affidavit or other evidence
[of] probable cause to believe” that he is illegally detained. Id. at 221, 226 S.W.3d at 798.
The allegations raised by appellant that were claims of trial error and insufficiency of the
evidence could have been, or were, raised at trial. The allegations did not call into question the
trial court’s jurisdiction or the facial validity of the judgment-and-commitment order entered in
appellant’s case. See Daniels v. Hobbs, 2011 Ark. 192 (per curiam) (holding that allegations of an
illegal search and insufficiency of the evidence were not grounds for issuance of the writ).
Assertions of trial error, including claims pertaining to due process and equal protection, are not
sufficient to implicate the facial validity of the judgment or the jurisdiction of the trial court. Hill
v. State, 2013 Ark. 413 (per curiam); see also Smith v. Smith, 2013 Ark. 481 (per curiam) (Due-
process claims are not cognizable in a habeas proceeding.); Bliss v. Hobbs, 2012 Ark. 315 (per
curiam); McHaney v. Hobbs, 2012 Ark. 361 (per curiam); Craig v. Hobbs, 2012 Ark. 218 (per
curiam) (Attacks on the sufficiency of the evidence and the admissibility of evidence are not
cognizable in a habeas proceeding.).
With respect to the sufficiency of the felony information, we have consistently held that
the proper time to object to the form or sufficiency of a charging instrument is prior to trial.
Jones v. State, 2014 Ark. 37 (per curiam); Murry v. Hobbs, 2013 Ark. 29 (per curiam); see also Davis
v. State, 2011 Ark. 88 (per curiam); Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991); England
3 Cite as 2014 Ark. 188
v. State, 234 Ark. 421, 352 S.W.2d 582 (1962). We have declined to review the sufficiency of an
information on appeal when there was no proper objection in the court below. Prince, 304 Ark.
692, 805 S.W.2d 46. If we considered the issue to be jurisdictional, we could have overlooked
the failure to object and reversed the conviction, if necessary, on our own motion. See Jones v.
State, 297 Ark. 485, 763 S.W.2d 81 (1989). Accordingly, appellant here did not establish that the
trial court lacked jurisdiction by virtue of a defective information.
Jurisdiction is the power of the court to hear and determine the subject matter in
controversy. Bliss, 2012 Ark. 315; Culbertson v. State, 2012 Ark. 112 (per curiam). Appellant
offered nothing to demonstrate that the trial court in his case did not have subject-matter
jurisdiction to hear and determine cases involving violations of criminal statutes. Id. We will
treat allegations of void or illegal sentences similarly to the way we treat problems of subject-
matter jurisdiction. Friend v. State, 364 Ark. 315, 219 S.W.3d 123 (2005) (per curiam)(citing Taylor
v. State, 354 Ark. 450, 125 S.W.3d 174 (2003)). However, a habeas-corpus proceeding does not
afford a prisoner an opportunity to retry his case, and it is not a substitute for direct appeal or
postconviction relief. Bliss, 2012 Ark. 315; Van v. Hobbs, 2011 Ark. 287 (per curiam); Meny v.
Norris, 340 Ark. 418, 420, 13 S.W.3d 143, 144 (2000) (per curiam).
As to the claims raised by appellant that were assertions, or could have been construed
as assertions, that he was denied effective assistance of counsel for failure to properly address
the issues at trial, allegations of ineffective assistance of counsel are not cognizable in a habeas
proceeding. Rodgers v. State, 2011 Ark. 443 (per curiam); Willis v. State, 2011 Ark. 312; Tryon v.
State, 2011 Ark. 76 (per curiam); Grimes v. State, 2010 Ark. 97 (per curiam). Claims concerning
4 Cite as 2014 Ark. 188
counsel’s effectiveness are properly raised pursuant to Arkansas Rule of Criminal Procedure 37.1
(2013). Rodgers, 2011 Ark. 443; Christopher v. Hobbs, 2011 Ark. 399 (per curiam); Moore v. Hobbs,
2010 Ark. 380 (per curiam); Hill v. Norris, 2010 Ark. 287 (per curiam). A petition for writ of
habeas corpus is not a substitute for proceeding under Rule 37.1. Rodgers, 2011 Ark. 443; Tryon,
2011 Ark. 76; see also Johnson v. Hobbs, 2010 Ark. 459 (per curiam); Rickenbacker v. Norris, 361 Ark.
291, 206 S.W.3d 220 (2005) (per curiam).
When a petitioner in a habeas proceeding fails to raise a claim within the purview of a
habeas action, the petitioner fails to meet his burden of demonstrating a basis for a writ of
habeas corpus to issue. Benton v. Hobbs, 2013 Ark. 385 (per curiam); Henderson v. White, 2011 Ark.
361 (per curiam). Appellant clearly did not meet his burden, and, therefore, he could not prevail
on appeal. See Glaze, 2013 Ark. 458; see also Smith v. Hobbs, 2013 Ark. 400 (per curiam).
Appeal dismissed; motion moot.
Earnest Chambliss, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.