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                   SUPREME COURT OF ARKANSAS
                                         No.   CV-15-339

RODNEY HOLLY                                       Opinion Delivered   December 10, 2015
                                  APPELLANT
                                                   PRO SE APPEAL FROM THE
V.                                                 JEFFERSON COUNTY CIRCUIT
                                                   COURT
                                                   [NO. 35CV-14-536]
RAY HOBBS, DIRECTOR, ARKANSAS
DEPARTMENT OF CORRECTION                           HONORABLE JODI RAINES
                      APPELLEE                     DENNIS, JUDGE

                                                   AFFIRMED.


                                          PER CURIAM


          On January 11, 2002, a judgment was entered reflecting that appellant Rodney Holly

had entered a guilty plea in Garland County Circuit Court to first-degree murder and

aggravated robbery.        He was sentenced to consecutive sentences of 240 months’

imprisonment on the murder charge and 480 months’ imprisonment on the aggravated

robbery charge for an aggregate sentence of 720 months’ imprisonment in the Arkansas

Department of Correction. Holly, who is incarcerated at a unit of the Arkansas Department

of Correction in Jefferson County, filed a petition for a writ of habeas corpus in the Jefferson

County Circuit Court on November 6, 2014. 1 In the petition, Holly claimed that his

sentence was illegal because it violated the constitutional provision against double jeopardy.

The petition was dismissed on March 11, 2015, and Holly brings this appeal.


     1
         As of the date of this opinion, Holly remains incarcerated in Jefferson County.
                                   Cite as 2015 Ark. 467
       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. 2006). The burden is on the petitioner in proceedings for a writ

of habeas corpus 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. Fields v. Hobbs, 2013 Ark. 416.

       A circuit court’s grant or denial of habeas relief will not be reversed unless the court’s

findings are clearly erroneous. Hobbs v. Gordon, 2014 Ark. 225, 434 S.W.3d 364. A

finding is clearly erroneous when, although there is evidence to support it, the appellate

court is left, after reviewing the entire evidence, with the definite and firm conviction that

a mistake has been committed. Id.

       In his habeas petition, Holly’s allegations surround whether his sentence was a

double-jeopardy violation, in that simple robbery, not aggravated robbery, was used as the

predicate felony for first-degree murder, and that a separate charge of aggravated robbery

was therefore invalid and illegal. 2 Some claims of double jeopardy are cognizable in a

habeas proceeding. Fields, 2013 Ark. 416. Detention for an illegal period of time is

precisely what a writ of habeas corpus is designed to correct. Taylor v. State, 354 Ark. 450,


       2
        In addition Holly makes a related due process argument, but due process violations
do not implicate the facially validity of the judgment or the court’s jurisdiction and thus are
not cognizable in habeas proceedings. See Murphy v. State, 2013 Ark. 155 (per curiam).
                                               2
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125 S.W.3d 174 (2003). When the petitioner does not show that, on the face of the

commitment order, there was an illegal sentence imposed, the claim does not implicate the

jurisdiction of the court to hear the case, and the claim is not one that is cognizable. Fields,

2013 Ark. 416.

       As a preliminary matter, Holly asserts that the circuit court erred in finding that

Holly’s double-jeopardy issue had previously been decided. He is correct that the circuit

court mistakenly found that Holly had previously raised his double jeopardy argument on

direct appeal and that therefore habeas relief was inappropriate to re-litigate the same issue.3

Ultimately, though, the court found Holly did not offer sufficient evidence to establish

probable cause that he was held illegally. This decision, based on a review of all the evidence,

is not clearly erroneous as there was no double-jeopardy violation in his sentencing.

       Arkansas Code Annotated section 5-1-110(d)(1)(c) (Repl. 2006) provides for

separate convictions for murder in the first degree and “any felony utilized as an underlying

felony” for the murder. At the time of the commission of the crime, aggravated robbery

was not enumerated by statute to be a predicate felony to first-degree murder. Ark. Code

Ann. § 5-10-102 (Repl. 2013). Holly was convicted of murder with simple robbery as the

underlying felony, and he argues that, because aggravated robbery was not the felony utilized

as the underlying felony for the murder conviction, he could only be sentenced separately


       3
          Holly in fact did not file a direct appeal and the case cited by the circuit court was
the decision in another defendant’s direct appeal. Holly also raises the argument that he
could not have waived this argument as an illegal sentence is a subject-matter jurisdiction
issue. We decline to address this as we recognize the court erred by finding he had previously
litigated this issue.
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for a simple robbery charge.

       In Holly’s co-defendant’s case, we addressed that aggravated robbery would be an

appropriate underlying felony to support a charge of felony-murder. See Burgie v. Hobbs,

2013 Ark. 360 (per curiam). Even if aggravated robbery would not be an authorized

underlying felony, separate sentences for first-degree murder and aggravated robbery do not

violate the prohibition against double jeopardy or section 5-1-110(b)(3).            Where the

legislature has specifically authorized cumulative punishment under two statutes, the

prohibition against double jeopardy is not violated. Missouri v. Hunter, 459 U.S. 359 (1983).

       Holly contends that sentencing on the two charges constitutes a double jeopardy

violation because the two charges differ only in degree. See Ark. Code Ann. § 5-1-

110(b)(3) (providing that an offense qualifies as a lesser-included offense if it differs from the

offense charged only in the respect that a less serious injury or risk of injury to the same

person, property, or public interest or a lesser kind of culpable mental state suffices to

establish the offense’s commission). The two crimes share some elements, but aggravated

robbery is not a lesser-included offense of the murder charge. Both the murder charge and

the aggravated-robbery charge included elements that are different from those that must be

proved to establish simple robbery, and those additional elements are not overlapping. See

Nelson v. State, 2015 Ark. 168 (per curiam) (holding that the appellant had failed to show

the judgment was illegal on its face when the elements of aggravated residential burglary,

first-degree domestic battering, and first-degree false imprisonment required proof of

different elements). The element requiring proof of the robber representing himself as

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armed with a deadly weapon is unique to the aggravated-robbery charge. In addition, the

culpable mental states for the two crimes are diverse. See Clark v. State, 373 Ark. 161, 282

S.W.3d 801 (2008) (holding that aggravated robbery is not a lesser-included offense of

attempted capital murder); but cf. Swaite v. State, 272 Ark. 128, 612 S.W.2d 307 (1981)

(holding sentences for both attempted capital murder and aggravated-robbery convictions

under previous statutes violated double jeopardy).

       Because Holly did not state facts in the petition to support his claim that the first-

degree murder charge and the aggravated robbery charge were overlapping charges that

violated double jeopardy, he did not establish probable cause that he is illegally detained.

The circuit court therefore was correct to deny relief, and we affirm the order dismissing

the petition.

       Affirmed.

       Rodney Holly, pro se appellant.
       Leslie Rutledge, Att’y Gen., by: Ashley Driver Younger, Ass’t Att’y Gen., for appellee.




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