Cite as 2018 Ark. 4
SUPREME COURT OF ARKANSAS
No. CV-17-495
Opinion Delivered January 4, 2018
REGINALD DUNAHUE
APPELLANT PRO SE MOTION TO FILE
V. NONCONFORMING BELATED
WENDY KELLEY, DIRECTOR, BRIEF [LINCOLN COUNTY
ARKANSAS DEPARTMENT OF CIRCUIT COURT, NO. 40CV-16-44]
CORRECTION
APPELLEE APPEAL DISMISSED; MOTION
MOOT.
RHONDA K. WOOD, Associate Justice
On February 26, 2016, appellant Reginald Dunahue, who is currently incarcerated
at a unit of the Arkansas Department of Correction located in Lee County, filed a pro se
petition for writ of habeas corpus in the Lincoln County Circuit Court. Dunahue filed his
petition pursuant to Arkansas Code Annotated sections 16-112-101 to -123 (Repl. 2016),
alleging that the prosecutor used perjured and implausible testimony and committed
misconduct. In addition, Dunahue alleged that the trial court abused its discretion; that he
was denied due process; and that his trial counsel, Rule 37 counsel, and appellate counsel
were ineffective. The circuit court found Dunahue was no longer within its jurisdiction
and that none of Dunahue’s claims were cognizable in a habeas proceeding. Accordingly,
the court dismissed his petition. Dunahue lodged an appeal from the dismissal and has now
filed a motion seeking to file a nonconforming belated brief on appeal. We need not
consider the merits of the motion because it is clear from the record that Dunahue cannot
prevail on appeal. We dismiss the appeal and find the motion moot. An appeal from an
order that denied a petition for a writ of habeas corpus will not be permitted to go forward
where it is clear that the appellant could not prevail. Williams v. Kelley, 2017 Ark. 198.
Any petition for writ of habeas corpus to effect the release of a prisoner is properly addressed
to the circuit court in which the prisoner is held in custody, unless the petition is filed
pursuant to Act 1780. See Ark. Code Ann. §§ 16-112-201 to -208 (Repl. 2016). Arkansas
Code Annotated section 16-112-105 (Repl. 2016) requires that the writ be directed to the
person in whose custody the petitioner is detained. See State Dep’t of Pub. Welfare v. Lipe,
257 Ark. 1015, 1017, 521 S.W.2d 526, 528 (1975) (“[T]he controlling question is the
identity of the person in whose custody the prisoner is detained.”). Although a circuit court
may have subject-matter jurisdiction to issue the writ, a court does not have personal
jurisdiction to issue and make returnable before itself a writ of habeas corpus to release a
petitioner held in another county. Williams, 2017 Ark. 198; see Mackey v. Lockhart, 307 Ark.
321, 819 S.W.2d 702 (1991). At the time the petition was dismissed, Dunahue was
incarcerated in Lee County. Regardless of where Dunahue was incarcerated at the time the
petition was filed, a writ of habeas corpus issued by the Lincoln County Circuit Court could
not be returned because that court lacks personal jurisdiction over prison officials located in
Lee County.
Appeal dismissed; motion moot.
HART, J., dissents.
JOSEPHINE LINKER HART, Justice, dissenting. “The equality of all persons
before the law is recognized, and shall ever remain inviolate.” Ark. Const. art. 2, § 3. This
elegant phrase, found in the Arkansas Constitution, could not be more clear. However, this
court has treated a pro se incarcerated person differently than it would treat a free-world
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appellant. All that is pending before this court is Mr. Dunahue’s motion to accept a
nonconforming brief. Yet, rather than simply ruling on this motion, the majority has
precipitously dismissed his appeal.
I say “precipitously” because Mr. Dunahue’s brief was rejected by the Criminal
Justice Coordinator, an arm of this court that functions as an ersatz Supreme Court Clerk’s
office for pro se appellants who are incarcerated. Accordingly, this court is purporting to
rule on the merits of a brief that is not before it. When I say “not before it,” I do not mean
it strictly in the procedural sense, although this court’s records indicate that Mr. Dunahue’s
“nonconforming brief” was “returned” to him. I also mean that the tendered brief was not
part of the materials that the Criminal Justice Coordinator’s office circulated to the court
for review.
According to the Criminal Justice Coordinator, Mr. Dunahue’s brief was deemed
“nonconforming” and had to be “returned.” According to a copy of the form that the
Criminal Justice Coordinator’s office provided to Mr. Dunahue, along with the letter
informing him that his brief was not accepted, there were four defects. First, the form
indicated that Mr. Dunahue’s brief lacked “a cover page with the Supreme Court docket
number, name of the case, name of the circuit court, title of the brief, i.e., “Brief for
Appellant,” and the name of the appellant.” This is only partially true; although the format
was somewhat irregular, all of the required information was present except for the title of
the case, “Reginald Dunahue v. Wendy Kelly, Director of the Arkansas Department of
Correction.” Next, the form indicated that the brief was “not bound on the left margin by
staples or another binding device.” This defect seems to be of little consequence because,
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since January 5, 2017, all materials relating to pro se postconviction matters have been
submitted to each justice only electronically. If the tendered briefs had been stapled, the
staples would have been removed to scan the handwritten documents. The form further
notes that only four copies of the brief had been received. I am mindful that Arkansas
Supreme Court Rule 4-7 requires an incarcerated, pro se appellant to submit eight copies.
However, this requirement has been overtaken by the current practices of this court—as
stated previously, all materials relating to pro se postconviction matters have been submitted
to each justice only electronically. When I asked the Criminal Justice Coordinator what the
paper copies are used for, she stated that her office sends a copy to the Attorney General,
she retains a copy for her files, the Supreme Court Clerk keeps one copy as an “office
copy,” and her office uses one to “mark up.” Her office “holds onto the other four copies
until the opinion is handed down and then they are “recycled.” The final defect listed on
the form was that Mr. Dunahue’s addendum did not have file-marked copies of his original
pleading and notice of appeal.
The last defects that the Criminal Justice Coordinator identified are of a more serious
nature. The notice of appeal is not file marked, but is identical to the copy found in the
transcript. The habeas petition is not present, but a copy of a petition for a writ of mandamus
is. In cases not involving incarcerated pro se appellants, Arkansas Supreme Court Rule 4-
2 would allow the appellant to fix this defect by filing a substituted or supplemental
addendum. Presumably, Rule 4-7 would allow Mr. Dunahue to do the same.
Mr. Dunahue’s motion explains that he did everything within his power to comply
with Rule 4-7. He claimed he sent the briefs in two envelopes because the Department of
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Correction would not provide a single large envelope. Likewise, as a prisoner, he was not
allowed to staple his documents. He does not explain, however, why his habeas petition
was not included in his addendum.
Dismissing Mr. Dunahue’s appeal—presumably on the merits—before his brief has
even been accepted by the court is, in effect, an unconstitutional denial of Mr. Dunahue’s
access to the courts. Just over a year and half ago, this court issued a show-cause order to
the Lincoln County Circuit Clerk, based on credible allegations that her office’s filing
practices were denying incarcerated persons access to the courts. Dunahue v. Dennis, 2016
Ark. 285. This court appointed a special master to investigate Mr. Dunahue’s case. Id. The
allegations were found to be true, and corrective actions were ordered. Dunahue v. Dennis,
2016 Ark. 426.
I cannot join an opinion that denies Mr. Dunahue his full measure of due process
and equal protection. As the Arkansas Constitutions states:
Every person is entitled to a certain remedy in the laws for all injuries or
wrongs he may receive in his person, property or character; he ought to obtain justice
freely, and without purchase; completely, and without denial; promptly and without
delay; conformably to the laws.
Ark. Const. art. 2, § 13. The laws of this state guarantee Mr. Dunahue the right to appeal.
Ark. Const. amendment 80, § 13. Our appellate rules give Mr. Dunahue the opportunity
to submit a conforming appellate brief. The disposition of Mr. Dunahue’s case should
conform to the law.
I respectfully dissent.
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