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SUPREME COURT OF ARKANSAS
No. CV-11-777
Opinion Delivered September 19, 2013
MARCUS LEWIS PRO SE APPEAL FROM THE LEE
APPELLANT COUNTY CIRCUIT COURT, 39CV-11-
76, HON. RICHARD L. PROCTOR,
V. JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED.
PER CURIAM
In 1997, appellant Marcus Lewis was convicted of murder in the first degree and battery
in the third degree in the Faulkner County Circuit Court, and he was sentenced to serve a total
of 720 months’ imprisonment. The Arkansas Court of Appeals affirmed. Lewis v. State, CA CR
98-635 (Ark. App. Oct. 6, 1999) (unpublished). Subsequently, appellant filed a pro se petition
for relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (1997) based on a claim of
ineffective assistance of counsel, and the trial court denied the petition.
On May 20, 2011, appellant filed a pro se petition for writ of habeas corpus in the Lee
County Circuit Court, the county in which he was imprisoned.1 In the petition, appellant alleged
that his due-process rights were violated based on the constructive denial of counsel,
prosecutorial misconduct, and judicial abuse of discretion. The circuit court found the
allegations to be without merit and dismissed the petition, and appellant brings this appeal. We
find no error and affirm.
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At the time of this decision, appellant remains incarcerated in Lee County.
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We note that appellant failed to direct his petition to the proper party. Arkansas Code
Annotated section 16-112-105 (Repl. 2006) requires that certain procedural requirements be met
by a petitioner seeking a court to issue a writ of habeas corpus. The writ must be directed to the
person in whose custody the prisoner is detained. Borum v. State, 2011 Ark. 415 (per curiam);
State Dep’t of Pub. Welfare v. Lipe, 257 Ark. 1015, 521 S.W.2d 526 (1975). Such person having
custody of the prisoner may be designated in the petition by either their name or office. Ark.
Code Ann. § 16-112-105(c)(1). Thus, by naming the State of Arkansas as the appellee, appellant
failed to direct the writ to the custodian of his person.
On appeal, appellant first claims that he is “actually innocent.” Apparently based on
arguments also raised in his Rule 37.1 petition, appellant then contends that he is entitled to
habeas relief based on ineffective assistance of counsel. In an apparent attempt to present an
argument based on prosecutorial misconduct, appellant next summarily states that he has
presented proof of a Brady violation based on the State’s failure to call a material witness. See
Brady v. Maryland, 373 U.S. 83, 87 (1963) (“[T]he suppression by the prosecution of evidence
favorable to the accused upon request violates due process where the evidence is material to guilt
or punishment, irrespective of the good faith or bad faith of the prosecution.”). Finally,
appellant summarily refers to judicial abuse of discretion as grounds for habeas relief.
A writ of habeas corpus is only proper when a judgment of conviction is invalid on its
face or when a circuit court lacked jurisdiction over the cause. Girley v. Hobbs, 2012 Ark. 447
(per curiam); Abernathy v. Norris, 2011 Ark. 335 (per curiam). The burden is on the petitioner
in a habeas-corpus petition to establish that the trial court lacked jurisdiction or that the
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commitment 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).
Under our statute, a petitioner who does not allege his actual innocence must plead either the
facial invalidity or the lack of jurisdiction by the trial court and make a showing by affidavit or
other evidence of probable cause to believe that he is illegally detained. Ark. Code Ann. § 16-
112-103(a)(1) (Repl. 2006); Murry v. Hobbs, 2013 Ark. 64 (per curiam).
A purely conclusory allegation with no facts to establish the merit of the claim is not
grounds for a writ of habeas corpus. Washington v. Norris, 2010 Ark. 104 (per curiam). To the
extent that appellant has stated his allegations with sufficient specificity, his arguments are
without merit.
A claim of actual innocence does not question the jurisdiction of the court or the facial
validity of the judgment and commitment order.2 Hooper v. Hobbs, 2013 Ark. 31 (per curiam).
Further, even assuming that appellant stated an argument for relief based on prosecutorial
misconduct and judicial abuse of discretion, this contention has no merit as these allegations do
not call into question the trial court’s jurisdiction or the facial validity of the judgment-and-
commitment order. Assertions of trial error and due-process claims do not implicate the facial
validity of the judgment or the jurisdiction of the trial court. Hill v. State, 2013 Ark. 143 (per
curiam); Bliss v. Hobbs, 2012 Ark. 315 (per curiam); see also Tryon v. Hobbs, 2011 Ark. 76 (per
2
Additionally, a petitioner who seeks a writ of habeas corpus and alleges actual innocence
must do so in accordance with Act 1780 of 2001 Acts of Arkansas, codified as Arkansas Code
Annotated sections 16-112-201 to -208 (Repl. 2006). Ark. Code Ann. § 16-112-103(a)(2) (Repl.
2006). Appellant did not seek to invoke Act 1780 in his petition.
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curiam) (Due process and prosecutorial misconduct are matters of trial error not cognizable in
a habeas proceeding.).
With respect to appellant’s contention that he was denied effective assistance of counsel,
this court has consistently held that allegations of ineffective assistance of counsel are not
cognizable in a habeas proceeding. Hooper, 2013 Ark. 31; McHaney v. Hobbs, 2012 Ark. 361 (per
curiam); Robinson v. State, 2012 Ark. 356 (per curiam); Smith v. Hobbs, 2012 Ark. 360 (per curiam);
Hill v. State, 2012 Ark. 309 (per curiam); McConaughy v. Lockhart, 310 Ark. 686, 840 S.W.2d 166
(1992). A habeas-corpus proceeding does not afford a prisoner a means to revisit the merits of
matters that could have been addressed, and settled, in the trial court, on appeal, or in a
postconviction proceeding. Murphy v. State, 2013 Ark. 155 (per curiam); Hooper, 2013 Ark. 31.
Because appellant has failed to show that the judgment of conviction was invalid on its
face or that the trial court lacked jurisdiction, the circuit court properly determined that the writ
should not issue. Thus, we affirm the denial of appellant’s petition.
Affirmed.
Marcus Lewis, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Ashley Argo Priest, Ass’t Att’y Gen., for appellee.
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