Clemmons v. State

2013 Ark. 420

• Court: Supreme Court of Arkansas
• Decided: October 24, 2013
• Docket: CR-13-462
• Status: Published

Opinion

Cite as 2013 Ark. 420

SUPREME COURT OF ARKANSAS No. CR-13-462

Opinion Delivered October 24, 2013 TIMOTHY MACK CLEMMONS PRO SE MOTION FOR A STAY AND APPELLANT ABEYANCE PENDING OUTCOME v. OF MOTION FOR NEW TRIAL; PRO SE MOTION FOR COPIES OF STATE OF ARKANSAS LODGED RECORD; PRO SE MOTION APPELLEE FOR EXTENSION OF TIME TO FILE BRIEF [PULASKI COUNTY CIRCUIT COURT, 60CR-07-1305, HON. WENDELL L. GRIFFEN, JUDGE]

APPEAL DISMISSED; MOTIONS MOOT.

PER CURIAM

In 2009, appellant Timothy Mack Clemmons was found guilty of multiple counts of

unlawful discharge of a firearm from a vehicle for firing shots from his vehicle at the home of

his ex-girlfriend. He was sentenced to a total of 864 months’ imprisonment, which included a

term of 96 months imposed as a firearm enhancement. The Arkansas Court of Appeals

affirmed. Clemmons v. State, 2010 Ark. App. 810.

In 2012, appellant filed a pro se petition for writ of habeas corpus in the trial court

pursuant to Act 1780 of 2001, as amended by Act 2250 of 2005 and codified at Arkansas Code

Annotated sections 16-112-201 to -208 (Repl. 2006), in which he contended that he is actually

innocent of the charges for which he was convicted. Appellant further argued that he was

entitled to habeas relief because no firearm linking him to the crime was found, and the offenses

for which he was convicted require proof that a firearm was readily accessible for use. He also Cite as 2013 Ark. 420

argued that he was entitled to relief based on claims of ineffective assistance of counsel,

insufficient evidence to support the finding of guilt, and violations of due process. The trial

court denied the motion, and appellant lodged this appeal. Now before us are appellant’s

motions for stay, for copies of lodged records, and for extension of time to file brief.

We need not consider appellant’s motions because it is clear that the habeas petition was

wholly without merit. An appeal from an order that denied a petition for postconviction relief,

including a petition under Act 1780 of 2001, will not be allowed to proceed where it is clear that

an appellant could not prevail. Cooper v. State, 2013 Ark. 180 (per curiam); Fields v. State, 2013

Ark. 154 (per curiam); King v. State, 2013 Ark. 133 (per curiam); Foster v. State, 2013 Ark. 61 (per

curiam).

The claims raised by appellant in his petition seeking relief under Act 1780 of 2001, as

amended by Act 2250, are not cognizable under the Act. Pursuant to Act 1780, a writ of habeas

corpus can issue based on new scientific evidence proving a person actually innocent of the

offense for which he was convicted. Ark. Code Ann. § 16-112-201; King, 2013 Ark. 133; Foster,

2013 Ark. 61; Garner v. State, 2012 Ark. 271 (per curiam) (citing Strong v. State, 2010 Ark. 181, 372

S.W.3d 758 (per curiam)). Appellant’s claims of a failure of proof because a gun was not

recovered, insufficiency of the evidence, ineffective assistance of counsel, and a violation of due

process are not grounds for a writ under the Act.1 See Mitchael v. State, 2012 Ark. 256 (per

curiam); Strong, 2010 Ark. 181, 372 S.W.3d 758. An Act 1780 petition is limited to issues based

1 Although appellant summarily sought “testing of the weapon,” he stated in the petition that the weapon was not recovered, and he failed to provide any explanation as to the type of testing that he was seeking.

2 Cite as 2013 Ark. 420

on newly discovered scientific evidence. Strong, 2010 Ark. 181, 372 S.W.3d 758. Accordingly,

the trial court correctly determined that the relief sought fell outside the statute’s scope.2 Because

it is clear that appellant cannot prevail on appeal, we dismiss the appeal, and the motions are moot.

Timothy Mack Clemmons, pro se appellant.

No response.

2 Because the record conclusively shows that appellant is not entitled to habeas relief, the trial court was not required to hold an evidentiary hearing. See Ark. Code Ann. § 16-112-205(a); King, 2013 Ark. 133.