Cite as 2020 Ark. 255
SUPREME COURT OF ARKANSAS
No. CV-19-985
ANARIAN CHAD JACKSON Opinion Delivered: June 18, 2020
APPELLANT
PRO SE APPEAL FROM THE LINCOLN
V. COUNTY CIRCUIT COURT; MOTION
TO FILE AN AMENDED REPLY BRIEF;
WENDY KELLEY, DIRECTOR, MOTION TO FILE AMENDMENT TO
ARKANSAS DEPARTMENT OF APPELLANT REPLY BRIEF
CORRECTION [NO. 40CV-19-125]
APPELLEE
HONORABLE JODI RAINES DENNIS,
JUDGE
AFFIRMED; MOTIONS DENIED.
ROBIN F. WYNNE, Associate Justice
Appellant Anarian Chad Jackson filed in the circuit court in the county where he is
incarcerated a petition for writ of habeas corpus pursuant to Arkansas Code Annotated
section 16-112-101 (Repl. 2016). Jackson alleged in the petition that the judgment and
commitment order was illegal on its face because it was signed by Judge Bogard, who did
not preside at his trial and lacked jurisdiction to enter the judgment; that the trial court
exceeded its jurisdiction when it admitted into evidence the pretrial statement of Takesha
Griffin; and that Judge Bogard lacked jurisdiction to enter the judgment because he failed
to recuse himself after Jackson threatened to kill Judge Bogard’s wife. The circuit court
denied and dismissed the petition. On appeal, Jackson raises the same claims for habeas
relief raised in the petition filed below and further contends that the circuit court erred
when it failed to conduct a hearing on his petition. 1 We find no error and affirm. Jackson
subsequently filed two motions to amend his reply brief and submitted a tendered reply
brief upon filing his second motion to amend. The motions are denied.
I. Standard of Review
A circuit court’s decision on a petition for writ of habeas corpus will be upheld
unless it is clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. A decision
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.
II. Nature of the Writ
A writ of habeas corpus is proper when a judgment and commitment order is
invalid on its face or when a circuit court lacks jurisdiction over the cause. Foreman v. State,
2019 Ark. 108, 571 S.W.3d 484. Jurisdiction is the power of the court to hear and
determine the subject matter in controversy. Baker v. Norris, 369 Ark. 405, 255 S.W.3d
466 (2007). When the trial court has personal jurisdiction over the appellant and also has
jurisdiction over the subject matter, the court has authority to render the judgment.
Johnson v. State, 298 Ark. 479, 769 S.W.2d 3 (1989). Under our statute, a petitioner for the
writ who does not allege his or her actual innocence and proceed under Act 1780 of 2001
1
In his brief on appeal, Jackson alternatively asks for relief pursuant to a petition for
certiorari and to recall the mandate on direct appeal of the judgment of conviction.
Because Jackson’s requests for these alternative forms of relief are irrelevant to the issues
underlying this appeal, the requests need not be addressed.
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must plead either the facial invalidity of the judgment 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 or she is being illegally detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016).
Unless the petitioner can show that the trial court lacked jurisdiction or that the judgment
was invalid on its face, there is no basis for a finding that a writ of habeas corpus should
issue. Fields v. Hobbs, 2013 Ark. 416. Moreover, a habeas proceeding does not afford a
prisoner an opportunity to retry his or her case, and it is not a substitute for direct appeal
or postconviction relief. Philyaw v. Kelley, 2015 Ark. 465, 477 S.W.3d 503. This court
views an issue of a void or an illegal sentence as being an issue of subject-matter
jurisdiction. Collier v. Kelley, 2020 Ark. 77, 594 S.W.3d 50. A sentence is void or illegal
when the trial court lacks the authority to impose it. Id. A trial court has subject-matter
jurisdiction to hear and determine cases involving violations of criminal statutes. Id.
III. Background
In 2003, a Pulaski County Circuit Court jury convicted Jackson of first-degree
murder, and he was sentenced to life imprisonment. This court affirmed. Jackson v. State,
359 Ark. 297, 197 S.W.3d 468 (2004). Jackson subsequently filed a petition for writ of
habeas corpus in the Jefferson County Circuit Court alleging that Judge Bogard did not
have jurisdiction to enter the judgment of conviction because Judge Bogard had not
presided over his trial. The Jefferson County Circuit Court denied the petition because
the judge who presided over the trial and the judge who signed the judgment had authority
to act in the criminal proceedings because both had been elected within the same judicial
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district. See Jackson v. Kelley, 2019 Ark. 191, 575 S.W.3d 105. Without addressing the
merits of Jackson’s claim, we dismissed the petition because Jackson had been transferred
to Lincoln County while the habeas appeal was pending. Id.
IV. Claims for Habeas Relief
As stated above, Jackson alleges for a second time that his judgment of conviction is
illegal on its face because it was signed by Judge Bogard, who did not preside over his trial
and therefore did not have the authority to sign the judgment. Jackson is mistaken.
Jurisdiction is granted to a particular position—that is, to a particular court—and not to the
person who fills it. Lukach v. State, 2018 Ark. 208, 548 S.W.3d 810 (citing Simpson v. State,
310 Ark. 493, 837 S.W.2d 475 (1992)). Here, Judge Bogard was the circuit judge elected
in the judicial district where Jackson was tried and convicted, and Judge Bogard had
authority to sign the judgment reflecting the jury’s verdict. Jackson’s reliance on Waddle v.
Sargent, 313 Ark. 539, 855 S.W.2d 919 (1993), is misplaced because that case involved the
lack of jurisdiction of judges who were not elected in the judicial district where the crime
was committed. Jackson’s further reliance on Arkansas Code Annotated section 16-13-
211(d) (Repl. 2016) for the proposition that a presiding judge is required to sign the
judgment is likewise misplaced because that statute is relevant to proceedings “where a jury
is waived and a cause is submitted for trial before the court sitting as a jury.” See Ark. Code
Ann. § 16-13-211(b). Here, Jackson was tried by a jury, and this statute is not applicable.
Jackson’s additional claims for relief are not cognizable in a habeas proceeding
because his claims represent allegations of trial error. Assertions of trial error and due-
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process claims do not implicate the facial validity of the judgment or the jurisdiction of the
trial court because the writ will not issue to correct errors or irregularities that occurred at
trial. Stephenson v. Kelley, 2018 Ark. 143, 544 S.W.3d 44. There is no merit to Jackson’s
claim that the admission into evidence of a particular pretrial statement deprived the court
of jurisdiction. A challenge to the admission of evidence is not cognizable in a habeas
proceeding. Tilson v. Kelley, 2018 Ark. 128, 543 S.W.3d 505. Finally, Jackson’s contention
that Judge Bogard did not have jurisdiction to enter the judgment because he did not
recuse himself is also without merit. Claims of judicial bias amount to allegations of trial
error and are not cognizable in habeas proceedings. Jefferson v. Kelley, 2017 Ark. 29, 509
S.W.3d 626 (per curiam). A trial judge’s failure to recuse himself or herself in accordance
with the Canons of Judicial Conduct does not deprive the court of jurisdiction. The
circuit court did not clearly err when it denied and dismissed Jackson’s habeas petition.
V. Entitlement to an Evidentiary Hearing
Jackson contends that the circuit court was required to appoint an attorney and
conduct a hearing on his habeas petition. While our statutory habeas corpus scheme
contemplates a hearing in the event the writ is issued, there is no requirement that a
hearing be given a petitioner regardless of the content of the petition. Sims v. State, 2018
Ark. 271, 555 S.W.3d 868. A hearing is not required on a habeas petition—even when the
petition alleges an otherwise cognizable ground—when probable cause for the issuance of
the writ is not shown by affidavit or other evidence. Id. Jackson failed to demonstrate
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probable cause for the issuance of the writ, and the circuit court was not required to
appoint counsel and hold a hearing on his petition.
Affirmed; motions denied.
HART, J., dissents.
JOSEPHINE LINKER HART, Justice, dissenting. The circuit court erred in dismissing
Jackson’s habeas petition. This case involves the appointment of a special judge who
presided at the trial but failed to sign the judgment and commitment order. The circuit
court failed to ascertain that the trial court’s jurisdiction was proper.
Before Tim Fox was elected to the circuit court, he was a practicing attorney in
Pulaski County. Near the end of his tenure, Circuit Judge David Bogard took a vacation
and Fox was appointed as a special judge in his stead. However, there is nothing in the
record to suggest that the formalities of Administrative Order No. 16 were followed in
appointing a special judge.
Amendment 80 § 4 of the Arkansas Constitution gives superintending control of
circuit courts to the Supreme Court.1 It states that “[t]he Supreme Court shall exercise
1
This opinion recognizes that pre-Amendment 80 decisions by this court have held
that “the elections of special judges, including the reasons for the regular judge’s absence,
are presumed to be valid.” Travis v. State, 328 Ark. 442, 449, 944 S.W.2d 96, 99 (1997)
(citing Daley v. Boroughs, 310 Ark. 274, 835 S.W.2d 858 (1992) (citing Titan Oil & Gas Inc. v.
Shipley, 257 Ark. 278, 517 S.W.2d 210 (1974))). “Also, it is the appellant’s burden to
produce a record showing that an attack on the election was made in the trial court.” Id.,
944 S.W.2d at 99 (citing Titan Oil & Gas Inc., 257 Ark. 278, 517 S.W.2d 210). However,
the modification of our State Constitution upon the adoption of Amendment 80 altered
that presumption and the objection requirement.
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general superintending control over all courts of the state and may temporarily assign
judges, with their consent, to courts or divisions other than that for which they were
elected or appointed. These functions shall be administered by the Chief Justice.”
Using that superintending authority, this court has created Administrative Order
No. 16, which outlines the procedures regarding the assignment of judges. This section
clearly establishes the Chief Justice’s duties when exercising the duties of appointments
granted by Amendment 80.
Administrative Order No. 16(II) outlines three bases for assignment of a special
judge.
A. Disqualification pursuant to Arkansas Code of Judicial Conduct; and or
B. Temporary inability to serve; or
C. Other need as determined by the Chief Justice.
Once the threshold for a special judge is met, the Chief Justice’s duties are set forth in the
next section of the Administrative Order. Section (III) provides, in pertinent part, the rules
for requesting an assignment. The section clearly states a trial judge requesting that a judge
be assigned shall write a letter to the Chief Judge asking that an assignment be made
pursuant to one or more of the bases set forth in Section (II). Also, in cases of
disqualification in judicial circuits with more than one judge, the process in the circuit’s
administrative plan should be followed. All judges in the circuit must be disqualified
before an assignment will be made. One judge in the circuit is responsible for writing the
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letter of request, sufficient in detail to inform the Chief Justice that all judges in the circuit
have recused themselves.
Even if, for argument’s sake, we can ignore the apparent impropriety in the
appointment of the special judge, it is fundamental that all documents generated be signed
by the presiding judge. Ark. Sup. Ct. Admin. Order No. 8; see also 3A Trial Handbook for
Arkansas Lawyers, Preparation of the Sentencing Order § 109:51 (2019–2020 ed.).
As noted previously, there is nothing in the record to indicate that the factual
predicate for the appointment of a special judge was present. “If the election of a special
judge was not held in the prescribed manner, the judge had no judicial authority and any
judgment reached by him or her is void.” Found. Telecomms., Inc. v. Moe Studio, Inc., 341
Ark. 231, 16 S.W.3d 531 (2001); see also 2 Arkansas Civil Practice & Procedure, Special
Judges § 3:4 (5th ed.). The language used in the constitutional amendment and the
Administrative Order indicates these requirements are not discretionary but instead
appears to provide that full compliance is necessary before jurisdiction can attach to the
proceedings.
In 1909, the General Assembly enacted the following (Laws 1909, p. 147): “Where
the judge who presided at any trial shall die, become insane, or for any other cause become
incapacitated before he has signed the bill of exceptions, his successor in office shall allow
or correct, and sign the said bill of exceptions.”
Prior to the enactment of that statute, it was repeatedly ruled by this court
that the bill of exceptions must be signed by the judge who presided at the
trial, and that the only remedy, where an appellant lost his right of appeal by
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reason of death or incapacity of the presiding judge before the bill of
exceptions was signed, was by an action in the chancery court for relief, on
account of the unavoidable casualty. The act of 1909 sought to remedy this,
and to give appellants appropriate relief “where the judge who presided at
any trial shall die, become insane, or for any other cause become
incapacitated before he has signed the bill of exceptions.” The present case
does not, however, fall within the terms of that statute, for it does not appear
that the presiding judge died, became insane, or in any other way
incapacitated. The expiration of his term of office did not incapacitate him
from signing the bill of exceptions, and notwithstanding that fact, it was his
duty, and not that of the succeeding judge, to sign it.
O’Neal v. State, 98 Ark. 449, 451, 136 S.W. 936, 936 (citing Watkins v. State, 37 Ark. 370
(1881)).
When we review the facts established in this case, it is apparent that not one circuit
judge in the Pulaski County judicial district recused himself or herself from Jackson’s case.
While the Chief Justice may have some discretion in finding a need to appoint a special
judge, he has no discretion to appoint in the absence of all elected judges in the district
requesting. Likewise, the requirement of signature is mandatory. There is an appearance of
impropriety in the face of the judgement and commitment order when an appointed
special judge hears the case and a different judge signs the order. It is important for both
the defendant and the public to know that the presiding judge will be accountable for
fulfilling the procedures and application of the law during the trial. This accountability for
properly performing his or her duties is evidenced by signing the order. This is particularly
so when the highest court appoints special judges and then acts as the reviewing court for
the conduct of the trial. It stands to reason that the highest court cannot allow any judge
other than the presiding judge to attest to the accuracy of the proceedings. When a
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presiding judge fails to sign the judgment and commitment order, and a judge who has not
been present does so, it invites questions concerning the trial procedure. The judge’s
attestation has no impact on whether the record is truly accurate.
The majority misunderstands the law concerning jurisdiction when it opined that
subject-matter jurisdiction rests solely with the court without the presence of the judge.
The judicial district and the judges that sit in that district are authorized by the legislature.2
A circuit court in each judicial district does so in reference to the number of judges not the
number of courts. Here, the majority answers the wrong question. It was not whether the
circuit court with Judge Bogard presiding had jurisdiction to hear a criminal proceeding
but whether a special judge could do so. It is a question of whether the proper protocols
were applied when appointing the special judge and whether that special judge performed
his duties in conformity with his appointment and the law. We first note that when the
judges in the district where the judge is to be appointed, and this court, i.e., the Chief
Justice, do not follow Administrative Order No. 16, jurisdiction is not proper. The basis
for Jackson’s petition is the validity of his judgment because it was signed by Judge Bogard.
Judge Bogard was not the presiding judge during Jackson’s trial. Special Judge Tim Fox, a
practicing attorney at the time of the trial, was assigned to fill in for Judge Bogard––the
elected judge.
2
Specific reference to the Sixth Judicial Circuit can be found in Ark. Code Ann.
section 16-13-1401.
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The record indicates that Special Judge Tim Fox was temporarily in Bogard’s
courtroom while he was on vacation and when he eventually retired from the court.
However, the problem is that the Sixth Circuit has more than one judge. The question to
be reviewed by the fact-finder is whether the proper procedures were followed. The
remaining judges of the Sixth Circuit all should have properly recused themselves before
the Chief Justice appointed a special judge. The Sixth Circuit is not exempt from the
procedures outlined in Administrative Order No. 16. In the interest of justice this court
needs to ensure this is not a perfunctory task with no review. The fact-finder should make
that determination that the procedures were followed.
The actions taken by Judge Bogard, Special Judge Tim Fox, and the Chief Justice do
not conform to the procedures outlined. This court cannot affirm lower-court actions that
have been performed outside the established protocols and procedures. Failure to enforce
compliance undermines any constitutional and statutory protections that were afforded to
the defendant. It creates doubt in the entire judicial process.
The process outlined in Administrative Order No. 16 is a jurisdictional
requirement. A presumption that this protocol was followed is not good enough.
Therefore, I must dissent.
Anarian Chad Jackson, pro se appellant.
Leslie Rutledge, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.
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