Cite as 2020 Ark. 299 SUPREME COURT OF ARKANSAS No. CR-96-428
LARRY RAYFORD Opinion Delivered: October 1, 2020 PETITIONER
V. PETITION FOR WRIT OF CERTIORARI OR MOTION TO RECALL MANDATE; STATE OF ARKANSAS PRO SE MOTION TO AMEND RESPONDENT PETITION FOR CERTIORARI OR MOTION TO RECALL THE MANDATE [ASHLEY COUNTY CIRCUIT COURT, NO. 02CR-93-18]
PETITION AND MOTION DENIED; MOTION TO AMEND DENIED.
COURTNEY RAE HUDSON, Associate Justice
Petitioner Larry Rayford brings this pro se petition for a writ of certiorari and,
alternatively, a motion to recall the mandate. Also pending before this court is Rayford’s
motion to amend his petition and motion. Because Rayford has failed to demonstrate
entitlement to the issuance of a writ of certiorari or to the recall of the mandate, we deny
his petition and the alternative request to recall the mandate. Rayford’s motion to amend
is likewise denied.
A jury found Rayford guilty of capital murder and sentenced him to life
imprisonment without parole. This court affirmed the judgment. Rayford v. State, 326 Ark.
656, 934 S.W.2d 496 (1996). Subsequently, Rayford sought postconviction relief without
success under Arkansas Rule of Criminal Procedure 37.1 (1996), and in multiple error coram nobis and habeas corpus proceedings.1 Rayford’s petition for certiorari and motion
to recall the mandate likewise fail to state a claim for relief.
In his petition for certiorari and motion to recall the mandate, Rayford contends
that there was a defect in his criminal proceedings in that Judge Sam Pope entered a
posttrial order on October 18, 1995, over a year after Rayford’s judgment of conviction was
entered in January 1994. Judge Pope’s order directed the court reporter to produce the
record for direct appeal at public expense because Rayford was indigent and there had
been an unusual delay in lodging the record. The order also reflects that Judge Pope had
recused himself from any other matters pertaining to Rayford’s conviction and appeal.
Rayford contends that because Judge Pope was the prosecutor who had signed the
information charging Rayford with the crime, the posttrial order signed by Judge Pope was
void, and as a result, this court should quash the judgment of conviction or recall the
mandate due to a defect in the appellate process. According to Rayford, Judge Pope did
not have the authority to enter any orders in connection with Rayford’s criminal
proceedings in accordance with the Arkansas Code of Judicial Conduct.
1 Rayford v. State, 2018 Ark. 183, 546 S.W.3d 475; Rayford v. Kelley, 2016 Ark. 462, 507 S.W.3d 483; Rayford v. Hobbs, 2014 Ark. 244; Rayford v. State, 2011 Ark. 86; Rayford v. State, CR-96-428 (Ark. Feb. 14, 2008) (unpublished per curiam); Rayford v. State, CR-07-651 (Ark. Nov. 8, 2007) (unpublished per curiam); Rayford v. Norris, CV-04-1171 (Ark. June 23, 2005) (unpublished per curiam) (original docket no. CR 04-1171); Rayford v. State, CR-96- 428 (Ark. Mar. 4, 2004) (unpublished per curiam); Rayford v. State, CR-98-1322 (Ark. May 18, 2000) (unpublished per curiam).
2 Two requirements must be satisfied for this court to grant a writ of certiorari.
Pedraza v. Circuit Court of Drew Cty., 2013 Ark. 116, 426 S.W.3d 441. First, there can be no
other adequate remedy but for the writ of certiorari. Id. Second, a writ of certiorari lies only
where (1) it is apparent on the face of the record that there has been a plain, manifest,
clear, and gross abuse of discretion, or (2) there is a lack of jurisdiction, an act in excess of
jurisdiction on the face of the record, or the proceedings are erroneous on the face of the
record. Id.
Certiorari will not be used for the correction of mere error when the right of other
remedies has been lost due to the fault of the petitioner. Gran v. Hale, 294 Ark. 563, 745
S.W.2d 129 (1988); see also Cooper Communities, Inc. v. Circuit Court of Benton Cty., 336 Ark.
136, 984 S.W.2d 429 (1999) (Certiorari will not lie when petitioners have failed to avail
themselves of other adequate remedies at law.). Certiorari will not be used to reverse a trial
court’s discretionary authority, and a decision of recusal is a discretionary one. Manila Sch.
Dist. No. 15 v. Wagner, 357 Ark. 20, 159 S.W.3d 285 (2004).
Rayford contends that Judge Pope’s failure to recuse himself in a posttrial matter
that was extraneous to the underlying judgment of conviction rendered the order signed by
Judge Pope void and, in turn, invalidated the judgment of conviction. Rayford is mistaken.
Judge Pope entered an order favorable to Rayford for the purpose of preserving
Rayford’s right to appeal his conviction and recused himself from any further proceedings
in Rayford’s criminal appeal. Judge Pope’s action in the matter was discretionary and is not
subject to certiorari—–particularly when the issue is raised years after the fact. 3 Disqualification is discretionary with the judge himself, and the decision will not be
reversed absent some abuse of that discretion. Woods v. State, 278 Ark. 271, 644 S.W.2d
937 (1983). Judge Pope did not commit a gross and manifest abuse of discretion by
entering an order designed to preserve Rayford’s rights on appeal. Pedraza, 2013 Ark. 116,
426 S.W.3d 441. In any event, Rayford could have objected when Judge Pope entered the
order. The disqualification of a judge may be waived by the failure to timely object. Worth
v. Benton Cty. Circuit Court, 351 Ark. 149, 89 S.W.3d 891 (2002).
Finally, Rayford has presented no authority or convincing argument that a posttrial
order pertaining to the preparation of a record on appeal and entered over a year after the
judgment of conviction was entered and executed had any impact on the validity of that
judgment. This court does not address arguments that are not supported by authority or
convincing argument. Montgomery v. State, 367 Ark. 485, 241 S.W.3d 753 (2006).
The standard to recall a mandate is set out in Nooner v. State, 2014 Ark. 296, 438
S.W.3d 233, and that standard indicates that the three-factor test set out in Robbins v. State,
353 Ark. 556, 114 S.W.3d 217 (2003), remains relevant even though strict satisfaction is
not required because this court has the inherent authority to recall its mandate in
extraordinary circumstances. The three Robbins factors are as follows: (1) the presence of a
defect in the appellate process, (2) a dismissal of proceedings in federal court because of
unexhausted state-court claims, (3) an appeal in a death case that required heightened
scrutiny. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771. This court will recall the mandate
and reopen a case only in extraordinary circumstances that may be established through 4 consideration of these three factors. Ward v. State, 2015 Ark. 62, 455 S.W.3d 830. These
factors are not necessarily to be strictly applied but serve as a guide in determining whether
to recall a mandate. Id.
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Cite as 2020 Ark. 299 SUPREME COURT OF ARKANSAS No. CR-96-428
LARRY RAYFORD Opinion Delivered: October 1, 2020 PETITIONER
V. PETITION FOR WRIT OF CERTIORARI OR MOTION TO RECALL MANDATE; STATE OF ARKANSAS PRO SE MOTION TO AMEND RESPONDENT PETITION FOR CERTIORARI OR MOTION TO RECALL THE MANDATE [ASHLEY COUNTY CIRCUIT COURT, NO. 02CR-93-18]
PETITION AND MOTION DENIED; MOTION TO AMEND DENIED.
COURTNEY RAE HUDSON, Associate Justice
Petitioner Larry Rayford brings this pro se petition for a writ of certiorari and,
alternatively, a motion to recall the mandate. Also pending before this court is Rayford’s
motion to amend his petition and motion. Because Rayford has failed to demonstrate
entitlement to the issuance of a writ of certiorari or to the recall of the mandate, we deny
his petition and the alternative request to recall the mandate. Rayford’s motion to amend
is likewise denied.
A jury found Rayford guilty of capital murder and sentenced him to life
imprisonment without parole. This court affirmed the judgment. Rayford v. State, 326 Ark.
656, 934 S.W.2d 496 (1996). Subsequently, Rayford sought postconviction relief without
success under Arkansas Rule of Criminal Procedure 37.1 (1996), and in multiple error coram nobis and habeas corpus proceedings.1 Rayford’s petition for certiorari and motion
to recall the mandate likewise fail to state a claim for relief.
In his petition for certiorari and motion to recall the mandate, Rayford contends
that there was a defect in his criminal proceedings in that Judge Sam Pope entered a
posttrial order on October 18, 1995, over a year after Rayford’s judgment of conviction was
entered in January 1994. Judge Pope’s order directed the court reporter to produce the
record for direct appeal at public expense because Rayford was indigent and there had
been an unusual delay in lodging the record. The order also reflects that Judge Pope had
recused himself from any other matters pertaining to Rayford’s conviction and appeal.
Rayford contends that because Judge Pope was the prosecutor who had signed the
information charging Rayford with the crime, the posttrial order signed by Judge Pope was
void, and as a result, this court should quash the judgment of conviction or recall the
mandate due to a defect in the appellate process. According to Rayford, Judge Pope did
not have the authority to enter any orders in connection with Rayford’s criminal
proceedings in accordance with the Arkansas Code of Judicial Conduct.
1 Rayford v. State, 2018 Ark. 183, 546 S.W.3d 475; Rayford v. Kelley, 2016 Ark. 462, 507 S.W.3d 483; Rayford v. Hobbs, 2014 Ark. 244; Rayford v. State, 2011 Ark. 86; Rayford v. State, CR-96-428 (Ark. Feb. 14, 2008) (unpublished per curiam); Rayford v. State, CR-07-651 (Ark. Nov. 8, 2007) (unpublished per curiam); Rayford v. Norris, CV-04-1171 (Ark. June 23, 2005) (unpublished per curiam) (original docket no. CR 04-1171); Rayford v. State, CR-96- 428 (Ark. Mar. 4, 2004) (unpublished per curiam); Rayford v. State, CR-98-1322 (Ark. May 18, 2000) (unpublished per curiam).
2 Two requirements must be satisfied for this court to grant a writ of certiorari.
Pedraza v. Circuit Court of Drew Cty., 2013 Ark. 116, 426 S.W.3d 441. First, there can be no
other adequate remedy but for the writ of certiorari. Id. Second, a writ of certiorari lies only
where (1) it is apparent on the face of the record that there has been a plain, manifest,
clear, and gross abuse of discretion, or (2) there is a lack of jurisdiction, an act in excess of
jurisdiction on the face of the record, or the proceedings are erroneous on the face of the
record. Id.
Certiorari will not be used for the correction of mere error when the right of other
remedies has been lost due to the fault of the petitioner. Gran v. Hale, 294 Ark. 563, 745
S.W.2d 129 (1988); see also Cooper Communities, Inc. v. Circuit Court of Benton Cty., 336 Ark.
136, 984 S.W.2d 429 (1999) (Certiorari will not lie when petitioners have failed to avail
themselves of other adequate remedies at law.). Certiorari will not be used to reverse a trial
court’s discretionary authority, and a decision of recusal is a discretionary one. Manila Sch.
Dist. No. 15 v. Wagner, 357 Ark. 20, 159 S.W.3d 285 (2004).
Rayford contends that Judge Pope’s failure to recuse himself in a posttrial matter
that was extraneous to the underlying judgment of conviction rendered the order signed by
Judge Pope void and, in turn, invalidated the judgment of conviction. Rayford is mistaken.
Judge Pope entered an order favorable to Rayford for the purpose of preserving
Rayford’s right to appeal his conviction and recused himself from any further proceedings
in Rayford’s criminal appeal. Judge Pope’s action in the matter was discretionary and is not
subject to certiorari—–particularly when the issue is raised years after the fact. 3 Disqualification is discretionary with the judge himself, and the decision will not be
reversed absent some abuse of that discretion. Woods v. State, 278 Ark. 271, 644 S.W.2d
937 (1983). Judge Pope did not commit a gross and manifest abuse of discretion by
entering an order designed to preserve Rayford’s rights on appeal. Pedraza, 2013 Ark. 116,
426 S.W.3d 441. In any event, Rayford could have objected when Judge Pope entered the
order. The disqualification of a judge may be waived by the failure to timely object. Worth
v. Benton Cty. Circuit Court, 351 Ark. 149, 89 S.W.3d 891 (2002).
Finally, Rayford has presented no authority or convincing argument that a posttrial
order pertaining to the preparation of a record on appeal and entered over a year after the
judgment of conviction was entered and executed had any impact on the validity of that
judgment. This court does not address arguments that are not supported by authority or
convincing argument. Montgomery v. State, 367 Ark. 485, 241 S.W.3d 753 (2006).
The standard to recall a mandate is set out in Nooner v. State, 2014 Ark. 296, 438
S.W.3d 233, and that standard indicates that the three-factor test set out in Robbins v. State,
353 Ark. 556, 114 S.W.3d 217 (2003), remains relevant even though strict satisfaction is
not required because this court has the inherent authority to recall its mandate in
extraordinary circumstances. The three Robbins factors are as follows: (1) the presence of a
defect in the appellate process, (2) a dismissal of proceedings in federal court because of
unexhausted state-court claims, (3) an appeal in a death case that required heightened
scrutiny. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771. This court will recall the mandate
and reopen a case only in extraordinary circumstances that may be established through 4 consideration of these three factors. Ward v. State, 2015 Ark. 62, 455 S.W.3d 830. These
factors are not necessarily to be strictly applied but serve as a guide in determining whether
to recall a mandate. Id. The inherent power of an appellate court to recall its mandate
should therefore be used sparingly as a last resort and is to be held in reserve against grave,
unforeseen contingencies. Nooner, 2014 Ark. 296, 438 S.W.3d 233.
Rayford does not establish the criteria set forth in Robbins that would establish
extraordinary circumstances sufficient to recall the mandate, most notably because the
death penalty, which invokes a heightened scrutiny. was not imposed. Turner v. State, 2012
Ark. 357. A motion to recall the mandate is applicable to redress errors that this court
made or overlooked while reviewing a case in which the death penalty was imposed. Ward,
2015 Ark. 61, 455 S.W.3d 818; see also Bienemy v. State, 2016 Ark. 312, 498 S.W.3d 288.
Again, Rayford was not sentenced to death.
Furthermore, Rayford has not shown that this court overlooked an error during the
appellate process that would have prejudiced the outcome of his case. Here, the order
entered by Judge Pope was not the order of conviction that was the subject of his direct
appeal; rather, it addressed an administrative matter regarding the preparation of the
record on direct appeal and was not an order to be reviewed by this court as part of the
appellate process. Finally, the harmless-error rules adopted by this court embody the
principle that appellate courts should ignore errors that do not affect the essential fairness
of the trial. Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984) (citing Kotteakos v. United
States, 328 U.S. 750, 759–60 (1946)). The order signed by Judge Pope did not in any way 5 affect Rayford’s trial and conviction. Rayford has failed to demonstrate a defect in the
appellate process because the order signed by Judge Pope was not the subject of the appeal
and no prejudicial errors were overlooked by this court.
As stated above, Rayford has also filed a motion to amend his petition for certiorari
and motion to recall the mandate. In his motion, Rayford contends that on direct appeal,
this court was obligated to raise sua sponte the issue of Judge Pope’s required recusal
pursuant to Canon 2 of the Arkansas Code of Judicial Conduct. According to Rayford,
this court’s failure to raise the issue sua sponte represents a defect in the appellate process.
Because the order signed by Judge Pope was not reviewed on direct appeal, this court was
not obligated to raise an issue sua sponte with respect to an order that was not under
appellate review.
Larry Rayford, pro se petitioner.
Leslie Rutledge, Att’y Gen., by: Vada Berger, Sr. Ass’t Att’y Gen., for respondent.