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                   SUPREME COURT OF ARKANSAS
                                        No.   CV-12-1060

JAMES EDWARD SMITH                                 Opinion Delivered   June 26, 2014
                                APPELLANT
                                                   PRO SE APPEAL FROM THE
V.                                                 JEFFERSON COUNTY CIRCUIT
                                                   COURT
                                                   [NO. 35CV-12-564]
RAY HOBBS, DIRECTOR, ARKANSAS
DEPARTMENT OF CORRECTION                           HONORABLE JODI RAINES DENNIS,
                       APPELLEE                    JUDGE

                                                   AFFIRMED.


                                        PER CURIAM


       In 1994, appellant James Edward Smith was found guilty by a jury in the Pulaski County

Circuit Court of several felonies, and he was sentenced to an aggregate term of forty years’

imprisonment. This court affirmed. Smith v. State, 318 Ark. 142, 883 S.W.2d 837 (1994). In

2012, appellant filed a pro se petition for writ of habeas corpus in the Jefferson County Circuit

Court alleging that the Pulaski County Circuit Court lacked jurisdiction to convict and sentence

him on a felony information filed by the prosecuting attorney rather than on a grand jury

indictment.1 The circuit court dismissed appellant’s petition on the grounds that the claims

raised therein were without merit and did not provide a basis on which habeas-corpus relief

could be granted, and appellant timely lodged an appeal from the order in this court. We find

no error and affirm.



       1
      As of the date of this opinion, appellant remains incarcerated at a facility of the Arkansas
Department of Correction located in Jefferson County.
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       The burden is on the petitioner in a habeas-corpus petition to establish that the trial 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). The petitioner must plead either the facial invalidity of the judgment

or the lack of jurisdiction and make a “showing by affidavit or other evidence [of] probable

cause to believe” that he is illegally detained. Id. at 221, 226 S.W.3d at 798. We will not reverse

a circuit court’s decision granting or denying a petition for writ of habeas corpus unless the

decision was clearly erroneous. Frost v. State, 2014 Ark. 46 (per curiam).

       On appeal, appellant alleges that the trial court lacked jurisdiction to convict and sentence

him because he was charged by felony information filed by the prosecuting attorney and not by

grand jury indictment as required by the Fifth and Fourteenth Amendments to the United States

Constitution and article 2, section 8, of the Arkansas Constitution. Appellant further alleges that

amendment 21, section 1, of the Arkansas Constitution, which provides that criminal offenses

may be prosecuted by grand jury indictment or by information filed by the prosecuting attorney,

is void to the extent that it conflicts with article 2, section 8.

       Claims of defective charging documents are cognizable in habeas proceedings only in

limited circumstances when the claims call into question the jurisdiction of the trial court. Burgie

v. Hobbs, 2013 Ark. 360 (per curiam); see Bowen v. State, 205 Ark. 380, 168 S.W.2d 836 (1943)

(“The only ground upon which a judgment may be arrested is that facts stated in the indictment

or information do not constitute a public offense within the jurisdiction of the court.”).

       Appellant’s contention that the trial court lacked jurisdiction to convict and sentence him



                                                  2
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on a felony information rather than on a grand jury indictment is without merit. The Fifth

Amendment’s requirement that felonies be charged only upon grand jury indictment has not

been incorporated through the Fourteenth Amendment against the states, and the Supreme

Court of the United States has held that a state is permitted to provide for a prosecution by

felony information rather than indictment. Hurtado v. California, 110 U.S. 516 (1884); see also

Washington v. State, 213 Ark. 218, 210 S.W.2d 307 (1948). Moreover, section 1 of amendment

21 to the Arkansas Constitution provides that “[a]ll offenses heretofore required to be

prosecuted by indictment may be prosecuted either by indictment by a grand jury or information

filed by the Prosecuting Attorney.” Appellant urges that amendment 21 is void to the extent

that it conflicts with article 2, section 8; this argument, however, also lacks any merit as this court

has repeatedly upheld the validity of amendment 21. See Stewart v. State, 241 Ark. 4, 406 S.W.2d

313 (1966) (citing Penton v. State, 194 Ark. 503, 109 S.W.2d 131 (1937) and Smith v. State, 194 Ark.

1041, 110 S.W.2d 24 (1937)); Brockelhurst v. State, 195 Ark. 67, 111 S.W.2d 527 (1937).

       Because the claims advanced by appellant in the petition for writ of habeas corpus did

not call into question the jurisdiction of the trial court or demonstrate the facial invalidity of the

judgment, they were not cognizable in a habeas-corpus petition and could not have supported

issuance of the writ. Accordingly, the circuit court did not err in dismissing the petition, and we

affirm the dismissal.2


       2
         Moreover, we note that appellant has previously raised a similar claim before this court.
In Smith v. State, 2012 Ark. 311 (per curiam), we declined to grant rehearing after affirming the
circuit court’s denial of appellant’s petition to correct illegal sentence pursuant to Arkansas Code
Annotated section 16-90-111 (Supp. 1997). In doing so, we found that appellant’s argument that
the charging instrument was invalid warranted no relief under section 16-90-111.

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Affirmed.

James Edward Smith, pro se appellant.

Dustin McDaniel, Att’y Gen., by: LeaAnn J. Adams, Ass’t Att’y Gen., for appellee.




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