Lewis v. State

2015 Ark. 213

• Court: Supreme Court of Arkansas
• Decided: May 14, 2015
• Docket: CR-14-492
• Status: Published

Opinion

Cite as 2015 Ark. 213

SUPREME COURT OF ARKANSAS No. CR-14-492

ALBERT LEWIS, JR. Opinion Delivered May 14, 2015 APPELLANT PRO SE APPEAL FROM THE V. CRITTENDEN COUNTY CIRCUIT COURT [NO. 18CR-08-600] STATE OF ARKANSAS APPELLEE HONORABLE JOHN N. FOGLEMAN, JUDGE

AFFIRMED.

PER CURIAM

In 2008, appellant Albert Lewis, Jr., was found guilty by a jury in the Crittenden County

Circuit Court of kidnapping and rape. He was sentenced as a habitual offender to consecutive

terms of 360 months’ imprisonment for kidnapping and life imprisonment for rape. We

affirmed. Lewis v. State, 2010 Ark. 209. Appellant subsequently filed a petition for

postconviction relief in the circuit court pursuant to Arkansas Rule of Criminal Procedure 37.1

(2008), and, by per curiam order entered January 27, 2011, we ultimately dismissed the appeal

from the circuit court’s order denying Rule 37.1 relief. Lewis v. State, CR-10-1172 (Ark. Jan. 27,

2011).

In 2014, appellant filed in the circuit court a pro se petition for writ of habeas corpus

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).1 In the petition, appellant sought scientific

1 While the title of the habeas petition filed below indicates that it was filed pursuant to Arkansas Code Annotated section 16-112-102 to -123, the body of the petition invokes Act Cite as 2015 Ark. 213

testing of a jacket, two pairs of men’s underwear, couch pillows, and two knives that he contends

were found at the scene of the crime. The results of testing said items, he contended, would

establish his actual innocence. He further averred that evidence of his DNA was never found

at the scene of the crime. The circuit court denied the petition on the ground that appellant

failed to present any new scientific evidence, and appellant timely lodged an appeal from the

order in this court.

In appeals of postconviction proceedings, we will not reverse a circuit court’s decision

granting or denying postconviction relief unless it is clearly erroneous. Pankau v. State, 2013 Ark.

162. A finding 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 committed. Id.

Any argument regarding the only issue that we may review has been abandoned by

appellant on appeal. Waller v. Banks, 2013 Ark. 399 (per curiam) (“All arguments made below

but not raised on appeal are abandoned.”). In his brief-in-chief, appellant fails to set forth any

allegations of error against the circuit court in denying habeas relief. Rather, appellant’s

argument on appeal consists mostly of a summary of the testimony presented at his trial and also

raises claims of trial error and ineffective assistance of trial counsel. The arguments now raised

on appeal by appellant were not raised in the petition below; therefore, they not preserved for

1780, and the petition was filed, in accordance with section 16-112-203(c)(2), in the circuit court in which appellant’s judgment of conviction was entered. Thus, the petition was properly treated as one seeking scientific testing of certain evidence pursuant to Act 1780. See Mhoon v. State, 369 Ark. 134, 251 S.W.3d 244 (2007) (“[C]ourts should not be guided blindly by titles but should look to the substance of motions to ascertain what they seek.”).

2 Cite as 2015 Ark. 213

appellate review. Allegations raised for the first time on appeal could not have been considered

by the lower court and will not be addressed by this court. Green v. State, 2013 Ark. 455 (per

curiam).

Moreover, claims of trial error and ineffective assistance of counsel are not cognizable

in a petition filed under Act 1780. Turner v. State, 2013 Ark. 421 (per curiam). Petitions under

the Act are limited to claims related to scientific testing of evidence. Slocum v. State, 2013 Ark.

406 (per curiam). The Act does not provide an opportunity to raise issues outside the purview

of the Act, and it is not a substitute for pursuing other remedies that may be available to the

convicted defendant to address errors of constitutional dimension. Barton v. State, 2014 Ark. 418

(per curiam).

Because appellant has failed to demonstrate any error in the circuit court’s denial of his

Act 1780 petition, we affirm.