Cite as 2014 Ark. 328
SUPREME COURT OF ARKANSAS
No. CV-13-50
EARNEST BROWN Opinion Delivered July 31, 2014
APPELLANT
PRO SE APPEAL FROM THE
V. JEFFERSON COUNTY CIRCUIT
COURT
[NO. 35CV-12-442]
RAY HOBBS, DIRECTOR, ARKANSAS
DEPARTMENT OF CORRECTION HONORABLE JODI RAINES DENNIS,
APPELLEE JUDGE
AFFIRMED.
PER CURIAM
Appellant Earnest Brown, also known as Ernest Brown, appeals an order of the Jefferson
County Circuit Court dismissing his pro se petition for writ of habeas corpus for failure to state
a claim upon which relief could be granted.1 In the petition, appellant challenged the facial
validity of a 2009 judgment-and-commitment order filed in the Crittenden County Circuit Court.
Specifically, appellant contended that he entered a plea of guilty to aggravated robbery; that,
according to his understanding of the plea agreement, he would be eligible for release after
serving three-and-a-half years; and that “through clerical error and lawyer error it was not enter
[sic] into records properly.”2
1
As of the date of this opinion, appellant remains incarcerated at a facility of the Arkansas
Department of Correction located in Jefferson County.
2
Appellant did not attach a copy of the judgment-and-commitment order or plea
agreement to the petition, and the documents are therefore not a part of the record. A copy of
both are included in appellant’s addendum; however, this court will not receive testimony or
consider anything outside the record below. Lowe v. State, 2012 Ark. 185, 423 S.W.3d 6 (per
curiam).
Cite as 2014 Ark. 328
On appeal, appellant argues that a time-computation card issued to him by the Arkansas
Department of Correction reflects a release date that does not coincide with the terms of his plea
agreement. Appellant alleges that trial counsel informed him that, in exchange for his guilty plea
to the charge of aggravated robbery, he would receive a sentence of fifteen years’ imprisonment
with suspended imposition of ten years and that he would be eligible for parole after serving
one-half of the time imposed with credit for meritorious good time. According to appellant, the
time-computation card is incorrect in that it indicates that he is not eligible for parole pursuant
to Act 1805 of 2001, codified at Arkansas Code Annotated section 16-93-609 (Repl. 2006).3
A writ of habeas corpus is proper only when a judgment of conviction is invalid on its
face or when a trial 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 circuit court lacked jurisdiction or that the
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 and proceed under Act
1780 of 2001 Acts of Arkansas must plead either the facial invalidity or the lack of jurisdiction
3
Section 16-93-609 provides in relevant part that “[a]ny person who commits a violent
felony offense . . . subsequent to August 13, 2001, and who has previously been found guilty of
or pleaded guilty or nolo contendere to any violent felony offense . . . shall not be eligible for
release on parole by the board.” Appellant attached to the petition for writ of habeas corpus two
judgments from the Criminal Court of Shelby County, Tennessee—one judgment reflecting that
a charge of criminal attempt carjacking was nolle prossed and another judgment reflecting that
appellant pled guilty to the charge of criminal attempt kidnapping. For purposes of section 16-
93-609, aggravated robbery and attempt to commit kidnapping constitute violent felony
offenses. Ark. Code Ann. §§ 16-93-609(b)(2); 5-4-501(d)(2)(A)(iv), (xiv)(d).
2
Cite as 2014 Ark. 328
by the circuit court and must additionally 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);
Murphy v. State, 2013 Ark. 155 (per curiam).
Even assuming that appellant’s claims are true, it is clear that such arguments are not
cognizable in a petition for writ of habeas corpus. Habeas-corpus relief in state court is generally
unavailable for challenging matters of parole eligibility. Robertson v. Hobbs, 2011 Ark. 313 (per
curiam) (citing Blevins v. Norris, 291 Ark. 70, 722 S.W.2d 573 (1987) (holding that a petition for
writ of habeas corpus is not the proper remedy to challenge the calculation of parole eligibility)).
In the instant case, appellant does not contend that the trial court lacked jurisdiction or that the
judgment-and-commitment order is facially invalid. In fact, appellant concedes that the
judgment-and-commitment order correctly reflects the sentence to which he agreed. Nor does
appellant contend that section 16-93-609 is not applicable to his underlying sentence; rather,
appellant’s allegations are premised on the claim that the application of section 16-93-609 to his
sentence is contrary to his understanding of the terms of his plea agreement. To the extent that
appellant alleges that his attorney should have informed him about the applicable parole-
eligibility statute, such a claim is tantamount to an allegation of ineffective assistance of counsel
and is also not cognizable in a habeas proceeding. Bowen v. Hobbs, 2014 Ark. 271 (per curiam)
(holding that a petition for writ of habeas corpus is not a substitute for proceeding under
Arkansas Rule of Criminal Procedure 37.1).
Affirmed.
Earnest Brown, pro se appellant.
Dustin McDaniel, Att’y Gen., by: Valerie Glover Fortner, Ass’t Att’y Gen., for appellee.
3