MARCHELLO PORTER v. STATE OF ARKANSAS

2018 Ark. 22

• Court: Supreme Court of Arkansas
• Decided: January 25, 2018
• Docket: CR-17-597
• Status: Published

Opinion

Cite as 2018 Ark. 22 SUPREME COURT OF ARKANSAS No. CR-17-597

Opinion Delivered January 25, 2018 MARCHELLO PORTER APPELLANT PRO SE APPEAL FROM THE V. FAULKNER COUNTY CIRCUIT COURT [NO. 23CR-15-586] STATE OF ARKANSAS APPELLEE HONORABLE CHARLES E. CLAWSON, JR., JUDGE

AFFIRMED.

COURTNEY HUDSON GOODSON, Associate Justice

Appellant Marchello Porter filed a pro se petition for writ of habeas corpus in the

trial court. The petition challenged a judgment reflecting Porter’s conviction on a robbery

charge pursuant to a negotiated plea of nolo contendere under which he received 120

months’ imprisonment in the Arkansas Department of Correction, and the prosecution

nol-prossed a charge of third-degree battery. The trial court denied the habeas petition,

finding that Porter had not demonstrated that his conviction should be dismissed or that

he was being illegally detained, and Porter appealed. Because Porter established no basis

for postconviction relief, we affirm.

The habeas petition that Porter filed in the trial court specifically referenced Act

1780 of 2001 Acts of Arkansas, as amended by Act 2250 of 2005 and codified as Arkansas

Code Annotated sections 16-112-201 to -208 (Repl. 2016). Although the petition alleged that there was scientific evidence to support Porter’s innocence, Porter did not identify any

scientific evidence for testing. Instead, Porter alleged prosecutorial misconduct in that the

prosecution had withheld a security videotape that showed Porter did not have the stolen

items when he left the scene of the crime. Porter contends that the videotape

demonstrated his innocence in that it showed he was not the individual who left the scene

of the crime with the stolen property.

In appeals of postconviction proceedings, this court 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. The same standard of review

applies when a trial court denies scientific testing under Act 1780. Id.

Porter’s petition failed as one under Act 1780. The Act provides that a writ of

habeas corpus may be issued based on new scientific evidence proving a person actually

innocent of the offense for which he or she was convicted. Ark. Code Ann. § 16–112–

201. Porter identified no scientific evidence and did not request testing or identify any

testing to be performed.

Under the statute, when a petitioner fails to provide factual support for the claim

that there is scientific evidence that bears on his or her case, the petitioner has failed to

2 demonstrate that he or she is entitled to relief. Marshall v. State, 2017 Ark. 208, 521

S.W.3d 456. Arkansas Code Annotated section 16–112–202 requires that a petitioner

who requests relief and who seeks scientific testing to provide the basis for relief must

identify evidence for testing that meets specific criteria set out in the statute, and the

evidence identified must meet certain predicate requirements under the statutes. Id. If the

petitioner does not state the specific scientific evidence to be tested, then the petition is

wholly without merit under the statute. Id.

The trial court appeared to treat the petition as a request for habeas relief not under

Act 1780, in spite of Porter’s specific identification of the Act as his basis for relief. The

Act does not provide an opportunity for the petitioner to raise issues outside the purview

of the Act, and a petition under the Act does not serve as a substitute for the pursuit of

other remedies.1 Id. The trial court reached the correct result, even if it used the wrong

analysis, and we therefore affirm. Id.

Marchello Porter, pro se appellant.

1 In his brief on appeal, Porter cites cases concerned with the issuance of a writ of error coram nobis. Those cases are inapplicable because he did not request issuance of that writ, and he proceeded in the trial court under Act 1780 alone. We do note that an affidavit submitted with the information charging Porter with robbery alleged that co- defendants took the property while Porter was beating the victim.

3 Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., for appellee.