Stanley Norton Mahmoud v. State of Arkansas

2022 Ark. 164

• Court: Supreme Court of Arkansas
• Decided: September 22, 2022
• Status: Published

Opinion

Cite as 2022 Ark. 164 SUPREME COURT OF ARKANSAS No. CV-21-610

Opinion Delivered: September 22, 2022 STANLEY NORTON MAHMOUD APPELLANT PRO SE APPEAL FROM THE JEFFERSON COUNTY CIRCUIT V. COURT [NO. 35CV-20-834]

STATE OF ARKANSAS HONORABLE JODI RAINES DENNIS, APPELLEE JUDGE

AFFIRMED.

ROBIN F. WYNNE, Associate Justice

Appellant Stanley Norton Mahmoud appeals from the trial court’s dismissal of his

pro se petition for writ of habeas corpus filed pursuant to Act 1780 of 2001, codified at

Arkansas Code Annotated sections 16-112-201 to -208 (Repl. 2016). In the petition, which

was filed in the county where he was convicted, Mahmoud sought scientific testing of

evidence from his 1996 criminal case. Because Mahmoud has not rebutted the presumption

against timeliness, has not shown that the evidence he claims should be tested is in the

possession of the State, or shown that the identity of the perpetrator was at issue, we affirm.

On December 13, 1996, Mahmoud entered a plea of guilty to residential burglary,

attempted murder in the first degree, and rape, and an aggregate sentence of 480 months’

imprisonment was imposed. In 2003, Mahmoud filed a petition for postconviction relief

pursuant to Rule 37.1 of the Arkansas Rules of Criminal Procedure. We affirmed the denial of the petition because it was untimely. Norton v. State, No. CR-03-1200 (Ark. Jan. 29, 2004)

(unpublished per curiam). In his brief-in-chief, Mahmoud concedes that he pleaded guilty

to the crimes that are the subject of his habeas petition.

We do not reverse the denial of a petition under Act 1780 unless the circuit 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.

Mahmoud filed a habeas petition more than twenty years after he was convicted,

contending that he is innocent and asking for fingerprint testing of the gun used in the crime

and DNA testing of blood and hair samples recovered from the victim. Act 1780 of 2001,

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. Pankau v. State, 2013 Ark. 162.

A petitioner seeking testing under Act 1780 must present a prima facie case that

identity was an issue at trial. Ark. Code Ann. § 16-112-202(7); Leach v. State, 2019 Ark. 238,

580 S.W.3d 871. When a defendant enters a plea of guilty, the guilty plea is the trial. Leach,

2019 Ark. 238, 580 S.W.3d 871. By entering his plea of guilty, Mahmoud admitted that he

committed the offense; therefore, identity was not in question. Id. Furthermore, Mahmoud

must demonstrate that the evidence to be tested is in possession of the State and has been

subject to a chain of custody and retained in a manner sufficient to ensure that the evidence

2 was not contaminated or altered. Ark. Code Ann. § 16-112-202(4). Mahmoud has not

demonstrated that the items he asks to be tested have remained in the possession of the State

and are capable of being tested. In sum, Mahmoud fails to make a prima facie showing that

he is entitled to new scientific testing because he has not demonstrated that identity was at

issue or that there is any evidence in the State’s possession capable of being tested. Ark.

Code Ann. §§ 16-112-202(4) & 16-112-202(7).

Furthermore, under section 16-112-202(10)(B), there is a rebuttable presumption that

a petition filed more than 36 months after the entry of judgment is untimely. To rebut this

presumption, a petitioner must establish one of the following: (1) the petitioner was or is

incompetent, and the incompetence substantially contributed to the delay; (2) there is newly

discovered evidence; (3) the motion is more than an assertion of innocence, and a denial of

the motion would cause a manifest injustice; (4) new technology exists that is substantially

more probative than the prior testing; or (5) other good cause. Hooper v. State, 2021 Ark.

110, 622 S.W.3d 641. Mahmoud’s petition and arguments on appeal contain nothing more

than his own assertion of innocence, and there was no showing that newly discovered

evidence, manifest injustice, or good cause prevented Mahmoud from filing his petition

within the 36-month time limitation.

Stanley Norton-Mahmoud, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.