Fulton v. State

Cite as 2017 Ark. 102

SUPREME COURT OF ARKANSAS.
No. CV-16-929

DEONTAE ANTONIO FULTON Opinion Delivered March 16, 2017
APPELLANT
PRO SE APPEAL FROM THE CHICOT
V. COUNTY CIRCUIT COURT
[NO. 09CV-16-70]
STATE OF ARKANSAS
APPELLEE HONORABLE ROBERT BYNUM
GIBSON, JR., JUDGE

AFFIRMED.

PER CURIAM

In 2015, appellant Deontae Antonio Fulton was found guilty by a jury in the Pulaski

County Circuit Court of first-degree murder and sentenced to 420 months’ imprisonment.

On direct appeal of the judgment, Fulton argued that the evidence was insufficient to sustain

the judgment because Atarius Bishop, a witness for the State, was not credible and because

he was an accomplice whose testimony was not corroborated. The Arkansas Court of

Appeals affirmed. Fulton v. State, 2016 Ark. App. 28.

In 2016, Fulton, who is incarcerated at a unit of the Arkansas Department of

Correction located in Chicot County, filed a pro se petition for writ of habeas corpus in the

Chicot County Circuit Court. In the petition, Fulton contended that the trial court erred

in finding that the evidence was sufficient to sustain the judgment. He argued, as he had

done on direct appeal, that Atarius Bishop’s testimony had not supported the guilty verdict.

He also named other witnesses for the State that he contended gave testimony that did not
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support the verdict. He concluded his petition with claims that he was not afforded effective

assistance of counsel at trial.

The circuit court denied the petition without a hearing on the ground that Fulton

had not stated a ground for the writ. Fulton, who remains incarcerated in Chicot County,

brings this appeal.

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, at 5, 434 S.W.3d 364, 367. 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. Smith v. Kelley, 2016 Ark. 307, at 2.

A writ of habeas corpus is proper when a judgment of conviction is invalid on its

face or when a trial court lacks jurisdiction over the cause. Philyaw v. Kelley, 2015 Ark. 465,

477 S.W.3d 503. Under our statute, a petitioner for the writ who does not allege his actual

innocence and proceed under Act 1780 of 2001 Acts of Arkansas 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 is illegally detained. Ark.

Code Ann. § 16-112-103(a)(1) (Repl. 2016). Unless the petitioner in proceedings for a

writ of habeas corpus can show that the trial court lacked jurisdiction or that the

commitment was invalid on its face, there is no basis for a finding that a writ of habeas

corpus should issue. Russell v. Kelley, 2016 Ark. 224; Fields v. Hobbs, 2013 Ark. 416.

Fulton concedes in his brief both that the Pulaski County Circuit Court had

jurisdiction in his case and that the sufficiency of the evidence to sustain a judgment is not

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a ground for the writ. He argues, nevertheless, that the writ should have been issued by the

Chicot County Circuit Court to effect his release from custody on the grounds that the

judgment was rendered invalid because the evidence was insufficient to support the verdict

and because there were due-process violations at his trial. He further alleges that his trial

counsel was ineffective. Fulton asserts that a miscarriage of justice will occur if this court

does not reverse the circuit court’s decision to deny the habeas petition.

We affirm the circuit court order because Fulton did not state a ground on which a

writ of habeas corpus could be issued. Fulton offered nothing in his petition to demonstrate

that the trial court did not have jurisdiction in his case, and he acknowledges that the issue

of whether the evidence adduced at trial was sufficient to sustain the judgment is not a

ground for the writ. This court has repeatedly held that challenges to the sufficiency of the

evidence are due-process claims that are not cognizable in habeas proceedings. Gardner v.

Hobbs, 2014 Ark. 346, 439 S.W.3d 663 (per curiam). A habeas proceeding does not afford

a prisoner an opportunity to retry his or her case, and it does not provide an opportunity to

reargue issues that have been, or could have been, settled on direct appeal. Allen v. Kelley,

2015 Ark. 490 (per curiam). As to the facial legality of the sentence imposed, Fulton did

not contend that the sentence was not within the statutory range for the offense.

To the degree that Fulton challenged in his petition the correctness of the rulings

made by the trial court at his trial, mere trial error would not act to deprive a court of

jurisdiction to enter a legal judgment. Thompson v. State, 2016 Ark. 380, at 4 (per curiam),

reh’g denied (Dec. 8, 2016); Willis v. Hobbs, 2011 Ark. 509, at 2 (per curiam). Any issues

concerning due-process claims or the admissibility of evidence could have been raised by

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Fulton at trial and are not within the purview of the writ. Watson v. State, 2014 Ark. 147

(per curiam) (holding that claims of a denial of petitioner’s due-process rights and erroneous

admission of evidence were allegations of trial error that were not grounds for habeas corpus

relief).

Likewise, claims of ineffective assistance of counsel, which are properly raised under

Arkansas Rule of Criminal Procedure 37.1 (2016), are not cognizable in habeas proceedings.

McConaughy v. Lockhart, 310 Ark. 686, 840 S.W.2d 166 (1992). Such allegations must be

raised under the Rule, and a habeas proceeding is not a substitute for filing a timely petition

for postconviction relief. Philyaw, 2015 Ark. 465, 477 S.W.3d 503.

Finally, Fulton asserts in his brief that he was entitled to a hearing on his habeas

petition. We find no error. This court has held that a hearing on a petition for writ of

habeas corpus is not required if the petition does not allege either of the bases for relief

proper in a habeas proceeding. Id. at 4, 477 S.W.3d at 506. If a petitioner in a habeas

proceeding fails to raise a claim within the purview of a habeas action, the petitioner fails to

meet his burden of demonstrating a basis for the writ to issue. Allen v. Kelley, 2016 Ark.

70, 482 S.W.3d 719 (per curiam). The circuit court was not obligated to conduct a hearing

on Fulton’s petition. Brown v. Hobbs, 2014 Ark. 267, at 2 (A hearing is not required if the

petition does not allege either of the bases of relief proper in a habeas proceeding.).

Affirmed.

Deontae Antonio Fulton, pro se appellant.

Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., for appellee.

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