Edward Cave v. State of Arkansas

2020 Ark. 156, 598 S.W.3d 506

• Court: Supreme Court of Arkansas
• Decided: April 23, 2020
• Status: Published

Opinion

Cite as 2020 Ark. 156 SUPREME COURT OF ARKANSAS No. CV-19-321

Opinion Delivered April 23, 2020 EDWARD CAVE APPELLANT PRO SE APPEAL FROM THE LEE V. COUNTY CIRCUIT COURT [NO. 39CV-19-21] STATE OF ARKANSAS APPELLEE HONORABLE E. DION WILSON, JUDGE

AFFIRMED.

JOSEPHINE LINKER HART, Associate Justice

Appellant Edward Cave appeals the denial by the circuit court of his pro se petition

for writ of habeas corpus. On appeal, Cave argues that the circuit court erred because it

denied his petition without citing any case law. We affirm.

I. Standard of Review

A circuit court’s decision on a petition for writ of habeas corpus will be upheld

unless it is clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. A decision

is clearly erroneous when, although there is evidence to support it, the appellate court,

after reviewing the entire evidence, is left with the definite and firm conviction that a

mistake has been made. Id.

II. Nature of the Writ Cave seeks a writ of habeas corpus pursuant to Ark. Code Ann. § 16-112-103. This

statute states in pertinent part:

The writ of habeas corpus shall be granted forthwith by any of the officers enumerated in § 16-112-102(a) to any person who shall apply for the writ by petition showing, by affidavit or other evidence, probable cause to believe he or she is detained without lawful authority, is imprisoned when by law he or she is entitled to bail, or who has alleged actual innocence of the offense or offenses for which the person was convicted.

Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016).

III. Cave’s Habeas Petition

In his habeas petition, Cave asserts that he is being unlawfully detained because his

arrest and conviction was based on the false testimony of Suzen Cooper, who had a lengthy

criminal history. He asserts that Cooper set him up and that he was actually innocent.

Cave also argues that there was a case number on the “Information Sheet” that was

different from other court documents. He concedes that the error was corrected, but

argues that the proceedings under the erroneous case number were “fruit of the poisonous

tree.” Cave also refers to a belated Rule 37 petition and the supporting record, but does

not actually connect an allegation of ineffective assistance of counsel to his allegation that

he was unlawfully detained.

IV. Background

Cave was committed to the Arkansas Department of Correction after a Grant

County Circuit Court jury found Cave guilty of two counts of delivery of a controlled

substance and one count of maintaining a drug premises. An aggregate sentence of 720

2 months’ imprisonment was imposed. The Arkansas Court of Appeals affirmed. Cave v.

State, 2017 Ark. App. 212, 518 S.W.3d 134. The charges against Cave arose out of a

“controlled buy” wherein a confidential informant, who was Cave’s neighbor, purchased

drugs from Cave at Cave’s residence. The buy was part of a multicounty drug task-force

operation under the supervision of Agent Eddie Keathley. Cave argued on direct appeal

that the State failed to establish substantial evidence of the three offenses, contending,

among other arguments, that Keathley did not observe the delivery of the drugs to the paid

informant, Suzie Cooper, and that the informant was not credible. Cave specifically raised

Cooper’s credibility as an issue in his direct appeal wherein he discussed her criminal

history. The court of appeals held that there was substantial evidence to sustain the

judgment on each charge. Id.

V. Argument on Appeal

Cave first argues that he is actually innocent because his arrest and conviction was

based on the false testimony of Cooper, who should not have been believed. We reject this

argument.

The claims that Cave makes regarding Cooper’s credibility do not constitute a valid

assertion that he is being unlawfully detained. Cooper’s credibility was challenged in his

jury trial and again on direct appeal. A habeas action does not afford a petitioner the

opportunity to retry his or her case. Watkins v. Kelley, 2018 Ark. 215, 549 S.W.3d 908.

The legality of Cave’s detention was established at his trial and affirmed in his direct

appeal. 3 Cave next argues that the writ should issue because he was not afforded effective

assistance of counsel. We note, however, that while Cave refers to a “belated” Rule 37

petition in his habeas petition, he does not assert that it was the reason for his unlawful

detention. On appeal, he attempts to make that claim. However, he acknowledges that his

Rule 37 petition was denied due to a procedural default. Cave attributes this procedural

default to his taking the legal advice of “a jailhouse lawyer/helper for inmates for the

ADC” who advised him that “he could not file Rule 37 against an attorney that handled

both jury trial and direct appeal because [the] attorney would not file against himself.”

Accordingly, the failure to get his ineffective-assistance-of-counsel claim is attributable to

Cave’s own improvident decision.

By our adoption of Rule 37, we have required that any allegation Cave desired to

raise pertaining to the adequacy of counsel should have been raised in a timely petition

pursuant to Rule 37.1. See State v. Tejeda-Acosta, 2013 Ark. 217, 427 S.W.3d 673. A

habeas proceeding is not a substitute for a timely petition under the Rule or an

opportunity to argue issues that are properly raised under the Rule. See Gardner v. Kelley,

2018 Ark. 300.

Finally, Cave makes no argument on appeal with regard to the apparent scrivener’s

error on some of the court documents. We deemed this issue to have been abandoned on

appeal.

WOOD and WOMACK, JJ., concur without opinion.

4 Edward Cave, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Adam Jackson, Ass’t Att’y Gen., for appellee.