Penn v. State

Cite as 2013 Ark. 409

SUPREME COURT OF ARKANSAS
No. CR-13-312

Opinion Delivered October 10, 2013

ALLEN LYNN PENN PRO SE MOTION FOR RULE ON
PETITIONER CLERK OR, IN THE ALTERNATIVE,
MOTION FOR BELATED APPEAL
v. AND PRO SE AMENDMENT TO
MOTION FOR RULE ON CLERK
STATE OF ARKANSAS OR, IN THE ALTERNATIVE,
RESPONDENT MOTION FOR BELATED APPEAL
[PULASKI COUNTY CIRCUIT
COURT, 60CR-83-441, HON. LEON
JOHNSON, JUDGE]

MOTION DENIED.

PER CURIAM

In 1983, petitioner Allen Lynn Penn was found guilty of capital murder and sentenced

to life imprisonment without parole on charges related to the robbery of a service station and

convenience store during which the store clerk was shot and killed. He appealed to this

court. Prior to our decision on appeal, petitioner filed a petition for writ of error coram nobis

based on a confession to the crime made by an inmate at the Arkansas Department of

Correction. We granted the petition and reinvested jurisdiction in the trial court to

determine whether a writ was in order. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984).

The prisoner refused to testify at the hearing, and the trial court held that petitioner was not

entitled to a new trial. Petitioner did not appeal that decision, and we affirmed the judgment

of conviction in Penn v. State, 284 Ark. 234, 681 S.W.2d 307 (1984).
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In 2004, petitioner filed a pro se petition for writ of habeas corpus pursuant to Act

1780 of 2001, codified at Arkansas Code Annotated sections 16-112-201 to -207 (Supp.

2003), in which he requested DNA testing of blood samples that he claimed had been

collected from the crime scene. The trial court denied the petition. While petitioner’s appeal

from the order was pending, petitioner filed a petition requesting that this court reinvest

jurisdiction in the trial court to consider a petition for writ of error coram nobis. In the

petition for writ of error coram nobis, petitioner asserted a violation of his right to due process

based on his contention that the police withheld and then destroyed these same blood

samples. We denied the petition because the issues raised in petitioner’s request were

addressed in his trial. Penn v. State, CR-84-43 (Ark. Oct. 20, 2005) (unpublished per curiam).

We subsequently affirmed the trial court’s denial of habeas relief on the basis that petitioner

failed to establish that a blood sample existed to be tested. Penn v. State, CR-05-942 (Ark.

Oct. 5, 2006) (unpublished per curiam).

On April 27, 2012, petitioner again filed in the trial court a pro se petition for writ of

habeas corpus pursuant to Act 1780 of 2001, as amended by Act 2250 of 2005, seeking the

use of the Automated Fingerprint Identification System (AFIS), a database allowing the

submission of fingerprints for comparison with a large number of prints. Appellant sought the

use of AFIS to compare prints lifted from the crime scene to the prints of three individuals

that he argues may have committed the crime for which he was convicted. Petitioner also

sought an evidentiary hearing. On May 31, 2012, the trial court denied the petition on the

basis that petitioner could have included the claim in the petition filed in 2004. On June 21,

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2012, petitioner filed a motion styled, “Motion for Reconsideration of Order Denying

Petitioner’s Writ of Habeas Corpus Pursuant to Act 1780 of 2001; A.C.A. § 16-112-202 Or

In the Alternative, Notice of Intent to Appeal Same Order to Arkansas Supreme Court,” in

which he restated his previously raised arguments and further contended that he could not

have sought fingerprint testing in his 2004 petition for habeas relief because he did not have

access to the fingerprint cards at that time. In the motion, petitioner also stated that if the

motion was not granted, he was requesting, in the alternative, that the trial court accept his

notice of appeal and order the circuit clerk to prepare the record and forward it to this court.

On September 10, 2012, the trial court denied the motion for reconsideration based on its

finding that testing did not satisfy the requirements of Arkansas Code Annotated section 16-

112-202(3) and (8). Specifically, the trial court found that when the jury found petitioner

guilty, it was aware that the fingerprints lifted from the scene were not his such that

reexamination of the fingerprints would not raise a reasonable probability that he did not

commit the offense. The trial court further found that any advancements in fingerprint

technology could not provide new evidence to support petitioner’s claim of innocence

because his trial counsel addressed the issue of fingerprint evidence at trial and elicited

testimony from law-enforcement witnesses that the fingerprints obtained from the scene did

not match petitioner’s prints. Finally, the trial court found that petitioner failed to rebut the

presumption against timeliness pursuant to Arkansas Code Annotated section 16-112-

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202(10).1 Petitioner then filed a notice of appeal on December 14, 2012. The record on

appeal was tendered to this court on March 4, 2013. Our clerk declined to lodge the

tendered record because the notice of appeal was not timely filed. Now before us is

petitioner’s motion for rule on clerk or, in the alternative, motion for belated appeal and

amendment to the motion in which he asks this court to order the clerk to lodge the record.

We need not consider petitioner’s motion because it is clear that the habeas petition

and motion for reconsideration were wholly without merit. An appeal from an order that

denied a petition for postconviction relief, including a petition under Act 1780 of 2001, will

not be allowed to proceed where it is clear that an appellant could not prevail. Cooper v. State,

2013 Ark. 180 (per curiam); Fields v. State, 2013 Ark. 154 (per curiam); King v. State, 2013

Ark. 133 (per curiam); Foster v. State, 2013 Ark. 61 (per curiam). The generally applicable

standard of review of an order denying postconviction relief dictates that this court does not

reverse unless the trial court’s findings are clearly erroneous. King, 2013 Ark. 133; Cooper v.

State, 2012 Ark. 123 (per curiam). 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. King, 2013 Ark. 133; Cooper,

2012 Ark. 123.

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

1
It is petitioner’s obligation to obtain a ruling with respect to any arguments raised below
in order to preserve those issues for our review. Pitts v. State, 2011 Ark. 322 (per curiam).
Accordingly, we decline to address any issues raised by petitioner that were not ruled on by the
trial court.

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Annotated sections 16-112-201 to -208 (Repl. 2006), in effect on the date that petitioner filed

his petition, provides that a writ of habeas corpus can issue based on new scientific evidence

proving a person actually innocent of the offense for which he was convicted. Ark. Code

Ann. § 16-112-201; King, 2013 Ark. 133; Foster, 2013 Ark. 61; Garner v. State, 2012 Ark. 271

(per curiam) (citing Strong v. State, 2010 Ark. 181, 372 S.W.3d 758 (per curiam)). Before a

circuit court can order testing under this statute, however, there are a number of predicate

requirements that must be met. King, 2013 Ark. 133; Foster, 2013 Ark. 61; Douthitt v. State,

366 Ark. 579, 237 S.W.3d 76 (2006) (per curiam); see Ark. Code Ann. §§ 16-112-201 to -

203.

One of these requirements is that if the specific evidence was previously subjected to

testing, the petitioner must request testing that uses a new method or technology that is

substantially more probative than prior testing. Ark. Code Ann. § 16-112-202(3). Also, the

Act requires that the proposed testing of the specific evidence may produce new material

evidence that would both support the theory of defense presented at trial and raise a

reasonable probability that the person making a motion under this section did not commit the

offense. Ark. Code Ann. § 16-112-202(8). Finally, the motion seeking testing must be made

in a timely fashion subject to certain conditions. Ark. Code Ann. § 16-112-202(10).

At trial, the investigating officer testified that good and partial prints were lifted from

the crime scene and sent to the Arkansas State Crime Laboratory for comparison with the

prints of petitioner and other individuals suspected by law enforcement prior to trial. He

further testified that none of these lifted prints matched the prints of either petitioner or other

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suspects. Contending that AFIS is a new method or technology that is substantially more

probative than the fingerprint testing done at the time of his trial, petitioner summarily stated

in his petition that AFIS constitutes new technology that has the potential to enhance partial

and smudged prints and make comparisons to prints in its database. However, petitioner

failed to demonstrate how comparing the collected and previously tested fingerprints against

the AFIS database constitutes a new method or technology or that its use is substantially more

probative than prior testing. Testing must yield fresh evidence that petitioner did not commit

the offense. Utilizing AFIS would only result in a comparison of any latent fingerprints found

at the scene to a wider database of suspects for identification purposes. The system allows the

fingerprint examiner to then use the computer to select a small number of potential matches,

which can then be examined manually to determine whether a match does exist. As the

fingerprints found at the scene were collected and previously sent for identification, the

requirement of section 16-112-202(3) cannot be met. To the extent that petitioner argued

that new testing methods or technologies are available, he did not provide any evidence to

demonstrate that the technology was substantially more probative than testing that was

available at the time of his trial.

Petitioner also failed to meet the requirement of section 16-112-202(8). The

utilization of AFIS would not produce new material evidence to support the theory of the

defense presented at trial or raise a reasonable probability that petitioner did not commit the

offense. Because AFIS is a database that allows the comparison of fingerprints to a large

number of suspects, petitioner’s argument that AFIS would produce new evidence based on

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the comparison of the lifted prints to the prints of three individuals must fail. Prior to finding

petitioner guilty, the jury heard evidence that the fingerprints lifted from the scene were

identified as not belonging to either petitioner or other suspects. Thus, expanding the

database of prints for comparison would present no new issues for the jury’s consideration.

Dismissal of the petition is also proper because it was not timely filed. A petitioner

who files a petition more than thirty-six months after the entry of the judgment of conviction

must rebut a presumption that his petition is untimely. Ark. Code Ann. § 16-112-

202(10)(B). 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 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. Id.

Petitioner filed his petition almost twenty-nine years after the judgment of conviction

had been entered against him. In his petition for habeas relief, petitioner attempted to rebut

the presumption against timeliness by contending that AFIS is a new testing method that is

substantially more probative than the fingerprint testing done at the time of his trial.

However, as held herein, petitioner failed to demonstrate that utilizing AFIS constitutes a new

method of technology that is substantially more probative than prior testing.

Finally, petitioner contended that he is entitled to a hearing on his habeas petition

because the files and record in his case fail to conclusively show that no relief is warranted, and

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he raised a number of issues that he urged could be addressed if a hearing was held.2 Arkansas

Code Annotated section 16-112-205(a) provides that the court is not required to hold an

evidentiary hearing if the petition, files, and records conclusively show that the petitioner is

entitled to no relief. It is clear from the petition and motion for reconsideration as well as the

trial court’s orders that petitioner failed to rebut the presumption against timeliness pursuant

to Arkansas Code Annotated section 16-112-202(10)(B). Further, he failed to satisfy the

requirements of section 16-112-202(3) & (8). The trial court’s decision to deny the requested

relief without a hearing was not clearly erroneous. Petitioner could not prevail if his appeal

was allowed to proceed, and his motion is accordingly denied.

Motion denied.

2
In support of his claim that he is entitled to an evidentiary hearing, petitioner cites
Rucker v. State, CR-02-145 (Ark. June 10, 2004) (unpublished per curiam), in which this
court, considering the appeal of the denial of a habeas petition on a claim of actual innocence
pursuant to Act 1780 of 2001, held that appellant was entitled to an evidentiary hearing
primarily to allow for the presentation of evidence on the technology and capabilities of AFIS
to determine if it involved testing that would satisfy the requirements of Act 1780. However,
since our decision in Act 1780 of 2001 has been amended by Act 2250 of 2005, which sets
out a number of additional requirements that must be met before a trial court can order
scientific testing pursuant to the Act. Because these requirements were not at issue in Rucker,
CR-02-145, our holding in the case does not support petitioner’s argument.

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