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                   SUPREME COURT OF ARKANSAS
                                         No.   CR-12-978

ALVIN BIGGS                                         Opinion Delivered March   13, 2014
                                APPELLANT
                                                    PRO SE MOTION FOR
V.                                                  APPOINTMENT OF COUNSEL AND
                                                    PRO SE APPEAL FROM THE
                                                    MISSISSIPPI COUNTY CIRCUIT
STATE OF ARKANSAS                                   COURT, CHICKASAWBA DISTRICT
                                  APPELLEE          [NO. 47CR-01-108]

                                                    HONORABLE RALPH WILSON, JR.,
                                                    JUDGE

                                                    ORDER AFFIRMED; MOTION MOOT.


                                        PER CURIAM


       In 2001, appellant Alvin Biggs was found guilty by a jury in the Mississippi County

Circuit Court, Chickasawba District, of first-degree murder of his stepfather Tommy Clay, and

he was sentenced to an aggregate term of 540 months’ imprisonment.1 The Arkansas Court of

Appeals affirmed. Biggs v. State, CR-02-573 (Ark. App. Feb. 12, 2003) (unpublished) (original

docket no. CACR 02-573).

       In 2012, appellant filed in the circuit court a pro se petition for writ of habeas corpus

pursuant to Act 1780 of 2001, as amended by Act 2250 of 2005 and codified at Arkansas Code

Annotated sections 16-112-201 to -208 (Repl. 2006). In support of the petition, appellant

asserted that, although he had confessed to the crime during the investigation, scientific testing



       1
       Appellant’s sentence included a sixty-month enhancement for use of a firearm during
the commission of the crime.
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would show his actual innocence. Specifically, appellant sought a fingerprint analysis of the

murder weapon, a 9mm Ruger pistol as well as a 9mm Ruger magazine. He also contended that,

during the investigation, gunshot residue (GSR) tests were performed on Felicia Holliman and

Charles Smith, and he sought the results of those tests. In an attempt to rebut the presumption

against timeliness of the petition, appellant stated that, since his conviction, he has spent a

majority of the time “in one court or another seeking collateral review.” The circuit court denied

the petition on the grounds that it was untimely and that the pistol and the magazine had been

processed for fingerprints prior to trial and no fingerprints of value for comparison were

developed.2 Appellant timely lodged an appeal from the order and subsequently filed a motion

for appointment of counsel.

       Postconviction matters are considered civil in nature with no absolute right to counsel;

nevertheless, we will appoint counsel if an appellant makes a substantial showing that he is

entitled to relief in a postconviction appeal and that he cannot proceed without counsel. Howard

v. Lockhart, 300 Ark. 144, 777 S.W.2d 223 (1989) (per curiam); Virgin v. Lockhart, 288 Ark. 92,

702 S.W.2d 9 (1986) (per curiam). Although the motion would have been denied as appellant

fails to make a showing of entitlement to counsel, the motion is nevertheless moot because

appellant has filed a brief-in-chief and reply brief in the instant appeal without the assistance of

appointed counsel.


       2
        The circuit court entered two orders denying appellant’s petition. On September 24,
2012, the circuit court entered an order denying appellant’s petition under Arkansas Code
Annotated sections 16-112-201 to -208, and on October 15, 2012, the circuit court entered an
order denying appellant’s petition under sections 16-112-101 to -123 (Repl. 2006). Appellant
appeals from the September 24 order.

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          On appeal, appellant asserts that the circuit court erred in denying his petition without

a hearing because the record and files did not conclusively show that the petition was without

merit. In appeals of postconviction proceedings, we will not reverse a circuit court’s decision

granting or denying postconviction relief unless it is clearly erroneous. Pankau v. State, 2013 Ark.

162. A finding 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 committed. Id. Arkansas Code Annotated section 16-112-205(a) provides that

the court is not required to hold an evidentiary hearing if the petition, files, and records

conclusively show that the petitioner is entitled to no relief. Because it is clear from the petition

as well as the order denying relief that appellant failed to rebut the presumption against

timeliness pursuant to Arkansas Code Annotated section 16-112-202(10)(B), we find no error

in the circuit court’s order denying the requested relief without a hearing. Accordingly, we

affirm.

          Act 1780 of 2001, as amended by Act 2250 of 2005 and codified at Arkansas Code

Annotated sections 16-112-201 to -208, in effect on the date that petitioner filed his petition,

provides that a writ of habeas corpus can issue based on new scientific evidence proving a

person actually innocent of the offense for which he was convicted. Ark. Code Ann. § 16-112-

201; King v. State, 2013 Ark. 133 (per curiam); Foster v. State, 2013 Ark. 61 (per curiam); Garner

v. State, 2012 Ark. 271 (per curiam) (citing Strong v. State, 2010 Ark. 181, 372 S.W.3d 758 (per

curiam)). Before a circuit court can order testing under this statute, however, there are a number

of predicate requirements that must be met. King, 2013 Ark. 133; Foster, 2013 Ark. 61; Douthitt



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v. State, 366 Ark. 579, 237 S.W.3d 76 (2006) (per curiam); see Ark. Code Ann. §§ 16-112-201 to

-203.

        One of these predicate requirements is that the petition must be filed in a timely fashion.

Ark. Code Ann. § 16-112-202(10). In 2005, the statute was amended to include a rebuttable

presumption against timeliness for any petition filed more than thirty-six months after the entry

of the judgment of conviction. Ark. Code Ann. § 16-112-202(10)(B). This presumption against

timeliness may be rebutted by showing (1) that the petitioner was or is incompetent, and the

incompetence substantially contributed to the delay; (2) that the evidence to be tested is newly

discovered; (3) that the motion is not based solely upon the petitioner’s own assertion of

innocence, and a denial of the motion would result in a manifest injustice; (4) that a new method

of technology exists that is substantially more probative than was the testing available at the time

of the conviction; or (5) for other good cause. Ark. Code Ann. § 16-112-202(10)(B)(i)–(v).

        In the instant case, appellant filed his petition in the circuit court nearly eleven years after

the judgment-and-commitment order had been entered of record and approximately six years

after section 16-112-202 had been amended to include the 36-month time limitation. In his

petition, appellant attempted to rebut the presumption against timeliness by asserting that, since

his conviction, a majority of his time had been spent seeking collateral relief in various courts.3

However, appellant did not state in the petition or on appeal any reason why seeking other




        3
         Appellant did not allege in his petition any other ground for rebutting the presumption
against timeliness, i.e., incompetence, newly discovered evidence, manifest injustice, new method
of technology, or for other good cause. See Ark. Code Ann. § 16-112-202(10)(B)(i) & (iii)–(v).

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avenues of collateral relief would have prevented a timely filing of the petition at issue now.4

As such, he has not established good cause for the approximate eleven-year delay. We note that

appellant argues in his reply brief that good cause existed to rebut the presumption against

timeliness of the petition because some evidence was never tested prior to trial or thereafter, and

he questions the completeness of the fingerprint analysis performed on the pistol and the

magazine. However, such arguments were not raised in appellant’s petition, and we will not

consider issues raised for the first time on appeal on which the circuit court has not had the

opportunity to rule. Thomas v. State, 370 Ark. 70, 257 S.W.3d 92 (2007). Because it is clear from

the record that appellant failed to rebut the presumption against timeliness, the circuit court did

not err in denying appellant’s petition without a hearing.

       Order affirmed; motion moot.

       Alvin Biggs, pro se appellant.

       Dustin McDaniel, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.




       4
        Appellant cites in his brief-in-chief to Rucker v. State, CR-02-145 (Ark. June 10, 2004)
(unpublished per curiam), in an apparent attempt to develop an argument that he was entitled
to an evidentiary hearing. In Rucker, the appellant sought to have previously unidentified
fingerprints found on the murder weapon submitted to the Automated Fingerprint Identification
System (AFIS); we reversed and remanded for a hearing on the matter. However, as noted
herein, Act 1780 of 2001 was amended by Act 2250 of 2005, which sets out a number of
additional requirements that must be met before a trial court can order scientific testing pursuant
to the Act. These requirements, including the 36-month time limitation, were not at issue in
Rucker, and, thus, our holding in that case does not benefit appellant in the instant case.

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