Saba K. Makkali v. State of Arkansas

2022 Ark. 24, 638 S.W.3d 280

• Court: Supreme Court of Arkansas
• Decided: February 10, 2022
• Status: Published

Opinion

Cite as 2022 Ark. 24 SUPREME COURT OF ARKANSAS No. CV-21-357

SABA K. MAKKALI Opinion Delivered: February 10, 2022 APPELLANT PRO SE APPEAL FROM THE V. JEFFERSON COUNTY CIRCUIT COURT STATE OF ARKANSAS APPELLEE [NO. 35CV-21-191] HONORABLE JODI RAINES DENNIS, JUDGE

AFFIRMED.

COURTNEY RAE HUDSON, Associate Justice

Appellant Saba K. Makkali, formerly known as Gary Cloird, appeals the trial court’s

denial and dismissal of his pro se petition for writ of habeas corpus pursuant to Act 1780 of

2001, codified at Arkansas Code Annotated sections 16-112-201 to -208 (Repl. 2016). In

the petition, Makkali sought scientific testing of evidence from his 1992 criminal case. It

was the third such petition filed by Makkali. Because Makkali failed to establish a ground

for additional scientific testing under the Act and the petition was not timely filed, we affirm.

Makkali was found guilty in 1992 of rape and theft of a van and sentenced to an

aggregate term of thirty-five years’ imprisonment. We affirmed. Cloird v. State, 314 Ark.

296, 862 S.W.2d 211 (1993). Evidence adduced at trial established that the victim had been

abducted and taken to a trailer where two men raped her orally, vaginally, and anally. Makkali joined the men and raped her orally. With respect to Makkali, the victim testified

at trial that only oral rape had occurred.

Makkali filed his current petition in March 2021. We do not reverse the denial of a

petition under Act 1780 unless the trial court’s findings are clearly erroneous. McClinton v.

State, 2017 Ark. 360, 533 S.W.3d 578. 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 made. Id.

Act 1780 of 2001, codified at Arkansas Code Annotated sections 16-112-201 to -208

(Repl. 2016) (as amended by Act 2250 of 2005), provides that a writ of habeas corpus can

issue on the basis of new scientific evidence proving a person actually innocent of the offense

for which he was convicted. Gipson v. State, 2019 Ark. 310, 586 S.W.3d 603. DNA testing

of evidence is authorized under this statute if testing or retesting can provide materially

relevant evidence that will significantly advance the defendant’s claim of innocence in light

of all the evidence presented to the jury. Johnson v. State, 2019 Ark. 391, 591 S.W.3d 265.

In addition, under section 16-112-202, the petition must identify specific evidence for

testing that was secured as a result of petitioner’s conviction; the evidence must have been

maintained subject to a chain of custody; and the petitioner must identify a theory of defense

based on the new evidence that the requested testing would provide and that would establish

petitioner’s actual innocence. Furthermore, it must be shown that the proposed testing of

the specific evidence would raise a reasonable probability that the petitioner did not commit

the offense. Ark. Code Ann. § 16-112-202(8); Mills v. State, 2020 Ark. 193, 600 S.W.3d

539. Finally, a number of other predicate requirements must be met before a court can order

2 testing under the Act. McArty v. State, 2020 Ark. 68, 594 S.W.3d 54. One of these predicate

requirements applies to those petitioners who file a motion for testing more than thirty-six

months after the entry of the judgment of conviction. Ark. Code Ann. § 16-112-202(10)(B).

Makkali filed his first petition for habeas relief under the Act in 2015, more than

twenty years after the judgment had been entered and more than ten years after Act 1780

was first enacted. Therefore, a rebuttable presumption arose that the petition was untimely.

Under section 16-112-202(10)(B), Makkali was therefore required to rebut this

presumption by showing the following: (1) that the petitioner was or is incompetent, and

the incompetence substantially contributed to the delay; (2) that the evidence to be tested

is newly discovered; (3) that the motion is not based solely upon the petitioner’s own

assertion of innocence, and a denial of the motion would result in a manifest injustice; (4)

that a new method of technology exists that is substantially more probative than was the

testing available at the time of the conviction; or (5) other good cause. Rayfield, 2020 Ark.

40, 592 S.W.3d 237; see Ark. Code Ann. § 16-112-202(10)(B). This court found that

Makkali’s petition contained nothing more than his own assertion of innocence and that his

conclusory allegation of incompetence was belied by his history of litigation. Likewise, there

was no showing that newly discovered evidence, manifest injustice, new testing methods,

or good cause prevented Makkali from filing his petition within the thirty-six-month time

limitation. Makkali v. State, 2017 Ark. 46, 510 S.W.3d 240.

We further held when the first petition was denied that, notwithstanding Makkali’s

failure to rebut the presumption that his petition was untimely, he had failed to establish

that additional testing would significantly advance his claim of innocence. The evidence

3 presented at trial established that Makkali entered the trailer and orally raped the victim.

Makkali, 2017 Ark. 46, 510 S.W.3d 240. We held that Makkali had failed to establish that

DNA testing of vaginal swabs would provide evidence material or relevant to his claim of

innocence. We further noted this court’s previous holding that tests on vaginal swabs at the

time of his trial would not have been determinative of any oral contact between Makkali

and the victim. See Cloird, 357 Ark. at 454, 182 S.W.3d at 478. Thus, any additional DNA

testing of a vaginal swab recovered from the victim would not give rise to a reasonable

probability that Makkali did not commit the offense for which he was convicted. See Ark.

Code Ann. § 16-112-202(8)(B). Makkali had already raised his claim to the trial court, and

it was rejected on appeal.

Makkali also sought DNA testing of a shotgun, a handgun, screwdrivers, a toilet roll,

and a bedsheet. We held that Makkali had not demonstrated that the other items were in

the possession of the State and had been retained under conditions ensuring that the

evidence had been preserved in a proper chain of custody. It was further noted that Makkali

had failed to show that testing of those items, even if collected and properly retained by the

State, would have provided evidence to substantially advance his claim of innocence in light

of all the evidence presented to the jury.

Makkali again claimed in his second petition under the Act that he was actually

innocent on the same grounds raised in the first petition. This court affirmed the order

because Makkali was not entitled to relief on the same allegations raised in a prior petition.

Makkali v. State, 2020 Ark. 188.

4 In the third petition under the Act, which is the subject of this appeal, Makkali argued

at length that the evidence was insufficient to sustain the judgment of conviction for rape.

The strength of the evidence adduced at trial, however, is not an issue cognizable under Act

1780 because the Act does not afford a petitioner an opportunity to retry his case. Rayfield,

2020 Ark. 40, 592 S.W.3d 237. Act 1780 does not require that a court reevaluate and

reweigh the credibility of evidence presented at trial when considering a petition under the

Act. See Johnson, 2019 Ark. 391, 591 S.W.3d 265.

Makkali also contended that there is now DNA testing not available at the time of

trial that could establish his actual innocence. In support of the claim, Makkali asserted that

testimony taken at a hearing1 on a petition for writ of error coram nobis he had filed in

2002 demonstrated that the State did not provide the defense with all the DNA evidence

available in violation of Brady v. Maryland, 373 U.S. 83 (1963). Whether there was a Brady

violation at Makkali’s trial was a matter to be settled in the coram nobis proceeding.

Makkali’s coram nobis petition was denied, and we affirmed. Cloird v. State, 357 Ark. 446,

182 S.W.3d 477 (2004). The Brady claim does not establish that a new method of

technology exists that is substantially more probative than was the testing available at the

time of the conviction.

Makkali further alleged that DNA testing is available that would conclusively show

that he was excluded as a contributor to the DNA on the vaginal swab and other evidence

from the crime scene. He argued that the new technology could definitely identify the

1 This court granted Makkali’s 2002 petition to reinvest jurisdiction in the trial court to consider a coram nobis petition. Cloird v. State, 349 Ark. 33, 76 S.W.3d 813 (2003) (per curiam). 5 contributors to the DNA and rule him out as having raped the victim, but Makkali failed

to identify any new, generally accepted scientific technology or method that would produce

new evidence to establish that he was innocent of rape. Moreover, the trial court correctly

noted that the evidence Makkali sought to test had not been used to convict him because

the victim’s testimony that she was orally raped provided substantial evidence of rape. In

the case of sexual assault, DNA evidence may or may not have been left at a crime scene,

and even if a DNA test would establish with absolute certainty that Makkali’s DNA was not

recovered, it would not significantly advance his claim of actual innocence in light of the

victim’s testimony that he had orally raped her.

Makkali challenged the DNA testing in each of the prior proceedings, and the court

concluded that the absence of Makkali’s DNA on the vaginal swab was not proof of actual

innocence. Act 1780 was not intended to do away with finality in judgments. See Johnson,

2019 Ark. 391, 591 S.W.3d 265. In each of his petitions under the Act, Makkali has, in

essence, raised the same unproven claims with no facts to establish that further scientific

testing would raise a reasonable probability that he is actually innocent. Makkali’s reassertion

of claims that have already been considered amounts to an abuse of the writ.

As with his first two petitions under the Act, Makkali’s third petition was not timely

filed. As stated, when a petition is not filed within thirty-six months of the entry of the

judgment of conviction, it is presumed to be untimely. This presumption against timeliness

may be rebutted by showing that the petitioner was or is incompetent, and the

incompetence substantially contributed to the delay; that the evidence to be tested is newly

discovered; that the motion is not based solely upon the petitioner’s own assertion of

6 innocence, and a denial of the motion would result in a manifest injustice; that a new

method of technology exists that is substantially more probative than was the testing

available at the time of the conviction; or for other good cause. Ark. Code Ann. § 16-112-

202(10)(B)(i)–(v). The trial court did not err in holding that Makkali met none of those

requirements.

Finally, with his petition, Makkali filed a motion to stipulate certain facts and expand

the record and another motion seeking DNA testing of evidence. The trial court did not

enter a separate ruling on those motions, and Makkali argues in his brief that the motions

were meritorious and should have been granted. After the appeal was lodged here, Makkali

filed a motion for completion, correction, and modification of the record that reiterated the

claims raised in the first motion that the record was incomplete and should be supplemented

with a transcript of his trial. He further asked this court to find that “false evidence” was

introduced at trial. Both motions were denied, and Makkali has not stated good cause for

this court to reconsider those decisions.

WOOD, WOMACK, and WEBB, JJ., concur.

SHAWN A. WOMACK, Justice, concurring. I agree with the majority’s decision

to affirm the circuit court’s dismissal of Makkali’s habeas petition. But I believe his petition

should be summarily dismissed as a successive writ.

This is Makkali’s third habeas petition alleging there is new DNA testing technology

that would establish his actual innocence. Makkali v. State, 2020 Ark. 188 (Makkali II);

Makkali v. State, 2017 Ark. 46, 510 S.W.3d 240 (Makkali I). A circuit court may summarily

7 dismiss successive petitions for new scientific testing if they seek the same or similar relief

and raise issues that this court has previously decided. Ark. Code Ann. § 16-112-205(d)

(Repl. 2016). Makkali’s two earlier petitions sought, among other things, additional DNA

testing of a vaginal swab taken from his victim. Makkali II, 2020 Ark. 188, at 2; Makkali I,

2017 Ark. 46, at 2–3, 510 S.W.3d at 241–42. In those cases, this court found that additional

DNA testing would not give rise to a reasonable probability that Makkali did not rape his

victim. Makkali II, 2020 Ark. 188, at 2; Makkali I, 2017 Ark. 46, at 2–3, 510 S.W.3d at

241–42.

Makkali again requests DNA testing “of all the sperm, hairs, and blood” collected as

evidence, which he claims will prove he did not rape his victim. Because we have twice

found that Makkali is ineligible for relief on these claims, we need not consider the merits

of his petition for a third time. Our analysis of Makkali’s current petition should end here.

We should summarily dismiss successive writs without further discussion to discourage the

filing of repetitive, meritless petitions.

For these reasons, I respectfully concur.

WOOD and WEBB, JJ., join.

Saba K. Makkali, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.