Cite as 2015 Ark. 401
SUPREME COURT OF ARKANSAS No. CV-15-586
Opinion Delivered October 29, 2015
WAYNE FREDERICK POLAND PRO SE MOTION FOR EXTENSION APPELLANT OF TIME TO FILE BRIEF AND MOTION FOR APPOINTMENT OF V. COUNSEL [CHICOT COUNTY CIRCUIT COURT, WENDY KELLEY, DIRECTOR, NO. 09CV-15-42] ARKANSAS DEPARTMENT OF CORRECTION HONORABLE ROBERT BYNUM APPELLEE GIBSON, JUDGE
APPEAL DISMISSED; MOTIONS MOOT.
PER CURIAM
In 2003, appellant Wayne Frederick Poland was charged with 40 counts of rape, 20
counts of possession of child pornography, and one count of failure to appear. In 2009, he
pleaded guilty to all the counts of rape, possession of child pornography, and failure to appear
for which he was sentenced to 300 months’, 120 months’, and 72 months’ imprisonment,
respectively.
On April 30, 2015, Poland filed in the circuit court a pro se petition for writ of habeas
corpus alleging over one hundred paragraphs of grounds supporting issuance of the writ,
including, but not limited to, concerns about his food and dietary requirements, medically and
religiously, while in the county jails; claims of a speedy-trial violation; questions regarding the
excessive amount of bail-bond money ordered; claims of ineffective assistance of counsel;
issues regarding the admissibility of his computer and computer-expert testimony during a Cite as 2015 Ark. 401
pretrial hearing; arguments regarding the law-enforcement officers’ failure to question him
during their investigation and reliance on the victims’ statements; complaints about the lack
of a law library at his disposal; a myriad of complaints regarding the conditions of his
confinement, including disregard of his physical well-being and lack of medical care and
attention; the circuit court’s denial of a motion for change of venue; lack of an evidentiary
hearing regarding the location that his plea was taken; and claims that his guilty plea was not
knowingly, intelligently, and voluntarily made due to the loss of his mental and physical
fortitude while being detained. The circuit court denied Poland’s petition for writ of habeas
corpus, finding he made no allegation that his judgment and commitment was invalid on its
on face or that the trial court lacked jurisdiction. Poland filed a timely notice of appeal from
the denial.
Now before us are Poland’s motion for extension of time to file a brief and motion for
appointment of counsel. Because it is clear from the record that Poland could not prevail on
appeal, we dismiss the appeal, and the motions are therefore moot. An appeal from an order
that denied a petition for postconviction relief, including a petition for writ of habeas corpus,
will not be permitted to go forward where it is clear that the appellant could not prevail. Daniels
v. Hobbs, 2011 Ark. 192 (per curiam).
A circuit court’s denial of habeas relief will not be reversed unless the court’s findings are
clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it,
the appellate court after reviewing the entire evidence is left with a definite and firm conviction
that a mistake has been committed. Hobbs v. Gordon, 2014 Ark. 225, at 5, 434 S.W.3d 364, 367.
2 Cite as 2015 Ark. 401
Here, the circuit court correctly determined that Poland did not allege grounds in his petition
on which the writ could be granted.
A writ of habeas corpus is proper when a judgment of conviction is invalid on its face
or when a trial court lacked jurisdiction over the cause. Fields v. Hobbs, 2013 Ark. 416. The
burden is on the petitioner in a habeas-corpus petition to establish that the trial court lacked
jurisdiction or that the judgment-and-commitment order was invalid on its face; otherwise, there
is no basis for a finding that a writ of habeas corpus should issue. Young v. Norris, 365 Ark. 219,
226 S.W.3d 797 (2006) (per curiam). The petitioner must plead either the facial invalidity or the
lack of jurisdiction and make a “showing by affidavit or other evidence [of] probable cause to
believe” that he is illegally detained. Id. at 221, 226 S.W.3d at 798.
As to Poland’s argument, that a hearing may be necessary to determine “where he signed
the plea bargain and entered his nolo-contendere plea on September 2, 2009,” the record before
this court does not contain Poland’s plea statement or judgment-and-commitment order, nor
were those documents before the circuit court for consideration when it denied his request for
habeas relief. Thus, we cannot reach the merits of Poland’s jurisdictional argument because he
has failed to supply us with the pleadings, documents, and testimony necessary to review the
issue. See, e.g., Cloird v. State, 352 Ark. 190, 195, 99 S.W.3d 419, 423 (2003) (referencing Cloird
v. State, CR-00-166 (Ark. Oct. 11, 2001) (per curiam) (stating this court was “unable to determine
whether the trial court lacked jurisdiction over the criminal offense”)).
Even if Poland raises the argument on appeal, he cannot append or supplement the
record or his yet-to-be filed brief to include the necessary pleadings, documents, or testimony,
3 Cite as 2015 Ark. 401
as this court cannot, in the exercise of its appellate jurisdiction, receive testimony or consider
anything outside the record below. See, e.g., Smith v. Hobbs, 2015 Ark. 312, at 2, ___ S.W.3d ___,
___ (per curiam) (stating that a pretrial hearing and affidavit were not referenced in the circuit
court’s orders which were the subject of the appeal, and, in the exercise of its appellate
jurisdiction, this court cannot receive testimony or consider anything outside the record).
As to Poland’s argument that the writ should issue on the ground that he was denied a
speedy trial, speedy-trial issues are not cognizable in a habeas proceeding. Davis v. State, 2011
Ark. 6 (per curiam) (citing Barker v. Wingo, 407 U.S. 514 (1972)). Assertions of trial error, such
as allegations of speedy-trial violations, do not implicate the facial validity of the judgment or
the jurisdiction of the trial court, and those claims are not cognizable in proceedings for the writ.
Murphy v. State, 2013 Ark. 155 (per curiam).
All of Poland’s claims that his trial counsel was ineffective are also not cognizable in a
habeas proceeding. Woodson v. Hobbs, 2015 Ark. 304, 467 S.W.3d 147 (per curiam) (citing
McConaughy v. Lockhart, 310 Ark. 686, 840 S.W.2d 166 (1992)). In the same vein, Poland’s claims
regarding the computer evidence and the computer-expert testimony are not claims cognizable
in a habeas-proceeding, as they do not implicate the facial validity of the judgment or the
jurisdiction of the court. Watson v. State, 2014 Ark. 147 (per curiam).
Regarding Poland’s claim that his plea was not knowingly, intelligently, or voluntarily
made, a habeas-corpus proceeding does not afford a prisoner an opportunity to retry his case.
Hobbs v. Turner, 2014 Ark. 19, 431 S.W.3d 283. When a defendant enters a plea of guilty, the
plea is his or her trial. Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984). Claims of trial
4 Cite as 2015 Ark. 401
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Cite as 2015 Ark. 401
SUPREME COURT OF ARKANSAS No. CV-15-586
Opinion Delivered October 29, 2015
WAYNE FREDERICK POLAND PRO SE MOTION FOR EXTENSION APPELLANT OF TIME TO FILE BRIEF AND MOTION FOR APPOINTMENT OF V. COUNSEL [CHICOT COUNTY CIRCUIT COURT, WENDY KELLEY, DIRECTOR, NO. 09CV-15-42] ARKANSAS DEPARTMENT OF CORRECTION HONORABLE ROBERT BYNUM APPELLEE GIBSON, JUDGE
APPEAL DISMISSED; MOTIONS MOOT.
PER CURIAM
In 2003, appellant Wayne Frederick Poland was charged with 40 counts of rape, 20
counts of possession of child pornography, and one count of failure to appear. In 2009, he
pleaded guilty to all the counts of rape, possession of child pornography, and failure to appear
for which he was sentenced to 300 months’, 120 months’, and 72 months’ imprisonment,
respectively.
On April 30, 2015, Poland filed in the circuit court a pro se petition for writ of habeas
corpus alleging over one hundred paragraphs of grounds supporting issuance of the writ,
including, but not limited to, concerns about his food and dietary requirements, medically and
religiously, while in the county jails; claims of a speedy-trial violation; questions regarding the
excessive amount of bail-bond money ordered; claims of ineffective assistance of counsel;
issues regarding the admissibility of his computer and computer-expert testimony during a Cite as 2015 Ark. 401
pretrial hearing; arguments regarding the law-enforcement officers’ failure to question him
during their investigation and reliance on the victims’ statements; complaints about the lack
of a law library at his disposal; a myriad of complaints regarding the conditions of his
confinement, including disregard of his physical well-being and lack of medical care and
attention; the circuit court’s denial of a motion for change of venue; lack of an evidentiary
hearing regarding the location that his plea was taken; and claims that his guilty plea was not
knowingly, intelligently, and voluntarily made due to the loss of his mental and physical
fortitude while being detained. The circuit court denied Poland’s petition for writ of habeas
corpus, finding he made no allegation that his judgment and commitment was invalid on its
on face or that the trial court lacked jurisdiction. Poland filed a timely notice of appeal from
the denial.
Now before us are Poland’s motion for extension of time to file a brief and motion for
appointment of counsel. Because it is clear from the record that Poland could not prevail on
appeal, we dismiss the appeal, and the motions are therefore moot. An appeal from an order
that denied a petition for postconviction relief, including a petition for writ of habeas corpus,
will not be permitted to go forward where it is clear that the appellant could not prevail. Daniels
v. Hobbs, 2011 Ark. 192 (per curiam).
A circuit court’s denial of habeas relief will not be reversed unless the court’s findings are
clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it,
the appellate court after reviewing the entire evidence is left with a definite and firm conviction
that a mistake has been committed. Hobbs v. Gordon, 2014 Ark. 225, at 5, 434 S.W.3d 364, 367.
2 Cite as 2015 Ark. 401
Here, the circuit court correctly determined that Poland did not allege grounds in his petition
on which the writ could be granted.
A writ of habeas corpus is proper when a judgment of conviction is invalid on its face
or when a trial court lacked jurisdiction over the cause. Fields v. Hobbs, 2013 Ark. 416. The
burden is on the petitioner in a habeas-corpus petition to establish that the trial court lacked
jurisdiction or that the judgment-and-commitment order was invalid on its face; otherwise, there
is no basis for a finding that a writ of habeas corpus should issue. Young v. Norris, 365 Ark. 219,
226 S.W.3d 797 (2006) (per curiam). The petitioner must plead either the facial invalidity or the
lack of jurisdiction and make a “showing by affidavit or other evidence [of] probable cause to
believe” that he is illegally detained. Id. at 221, 226 S.W.3d at 798.
As to Poland’s argument, that a hearing may be necessary to determine “where he signed
the plea bargain and entered his nolo-contendere plea on September 2, 2009,” the record before
this court does not contain Poland’s plea statement or judgment-and-commitment order, nor
were those documents before the circuit court for consideration when it denied his request for
habeas relief. Thus, we cannot reach the merits of Poland’s jurisdictional argument because he
has failed to supply us with the pleadings, documents, and testimony necessary to review the
issue. See, e.g., Cloird v. State, 352 Ark. 190, 195, 99 S.W.3d 419, 423 (2003) (referencing Cloird
v. State, CR-00-166 (Ark. Oct. 11, 2001) (per curiam) (stating this court was “unable to determine
whether the trial court lacked jurisdiction over the criminal offense”)).
Even if Poland raises the argument on appeal, he cannot append or supplement the
record or his yet-to-be filed brief to include the necessary pleadings, documents, or testimony,
3 Cite as 2015 Ark. 401
as this court cannot, in the exercise of its appellate jurisdiction, receive testimony or consider
anything outside the record below. See, e.g., Smith v. Hobbs, 2015 Ark. 312, at 2, ___ S.W.3d ___,
___ (per curiam) (stating that a pretrial hearing and affidavit were not referenced in the circuit
court’s orders which were the subject of the appeal, and, in the exercise of its appellate
jurisdiction, this court cannot receive testimony or consider anything outside the record).
As to Poland’s argument that the writ should issue on the ground that he was denied a
speedy trial, speedy-trial issues are not cognizable in a habeas proceeding. Davis v. State, 2011
Ark. 6 (per curiam) (citing Barker v. Wingo, 407 U.S. 514 (1972)). Assertions of trial error, such
as allegations of speedy-trial violations, do not implicate the facial validity of the judgment or
the jurisdiction of the trial court, and those claims are not cognizable in proceedings for the writ.
Murphy v. State, 2013 Ark. 155 (per curiam).
All of Poland’s claims that his trial counsel was ineffective are also not cognizable in a
habeas proceeding. Woodson v. Hobbs, 2015 Ark. 304, 467 S.W.3d 147 (per curiam) (citing
McConaughy v. Lockhart, 310 Ark. 686, 840 S.W.2d 166 (1992)). In the same vein, Poland’s claims
regarding the computer evidence and the computer-expert testimony are not claims cognizable
in a habeas-proceeding, as they do not implicate the facial validity of the judgment or the
jurisdiction of the court. Watson v. State, 2014 Ark. 147 (per curiam).
Regarding Poland’s claim that his plea was not knowingly, intelligently, or voluntarily
made, a habeas-corpus proceeding does not afford a prisoner an opportunity to retry his case.
Hobbs v. Turner, 2014 Ark. 19, 431 S.W.3d 283. When a defendant enters a plea of guilty, the
plea is his or her trial. Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984). Claims of trial
4 Cite as 2015 Ark. 401
error are not within the purview of a writ of habeas corpus. See Mackey v. Lockhart, 307 Ark. 321,
819 S.W.2d 702 (1991). Habeas proceedings are also not a means to challenge the sufficiency
of the evidence in a case. Griffis v. Hobbs, 2015 Ark. 121, 458 S.W.3d 703 (per curiam). Claims
of an involuntary plea or of improper plea procedures do not raise a question of facial invalidity
or the court’s jurisdiction such as may be addressed in a habeas-corpus proceeding. Id.
Essentially, the remainder of Poland’s claims contest the conditions of his detention or
confinement pending disposition of his case. None of Poland’s contentions reference the
validity of his judgment or the jurisdiction of the court. When a petitioner in a habeas
proceeding fails to raise a claim within the purview of a habeas action, the petitioner fails to meet
his burden of demonstrating a basis for a writ of habeas corpus to issue. Benton v. State, 2013
Ark. 385 (per curiam). Poland clearly did not meet his burden; therefore, he could not prevail
on appeal. See Quezada v. Hobbs, 2014 Ark. 396, 441 S.W.3d 910 (per curiam).