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                   SUPREME COURT OF ARKANSAS.
                                      No. CV-16-541


 ROBERT PRESTON CLAYTON         Opinion Delivered January 12, 2017
                     APPELLANT
                                APPEAL FROM THE LINCOLN COUNTY
V.                              CIRCUIT COURT
                                [NO. 40CV-16-9]
 WENDY KELLEY, DIRECTOR,
 ARKANSAS DEPARTMENT OF         HONORABLE JODI RAINES
 CORRECTION                     DENNIS, JUDGE
                       APPELLEE
                                AFFIRMED.

                                      PER CURIAM


        In 2010, appellant Robert Preston Clayton was found guilty by a jury of rape and

 second-degree sexual assault of his minor daughter. He was sentenced as a habitual offender

 to an aggregate term of 960 months’ imprisonment. The Arkansas Court of Appeals

 affirmed. Clayton v. State, 2012 Ark. App. 199. Clayton subsequently filed in the trial court

 a pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure

 37.1 (2010). The petition was denied, and Clayton appealed to this court from the order.

 We dismissed the appeal because it was clear from the record that Clayton could not prevail.

 Clayton v. State, 2013 Ark. 453 (per curiam).

        On February 1, 2016, Clayton, who is incarcerated in a unit of the Arkansas

 Department of Correction located in Lincoln County, filed a pro se petition for writ of

 habeas corpus in the Lincoln County Circuit Court seeking to have the judgment vacated

 or to have an order entered for him to be resentenced by the trial court. The circuit court
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dismissed the petition on the ground that Clayton had not stated a ground for the writ.

Clayton, who remains incarcerated in Lincoln 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. Id.

       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. Fields v. Hobbs, 2013 Ark. 416.

       Clayton’s arguments in this appeal mirror those in the habeas petition. He contends

that he was denied due process of law because the evidence was insufficient to sustain the

judgment and that the victim is now ready to “tell the truth.” He further alleges that his

Eighth Amendment right to be free of cruel and unusual punishment was violated by the




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length of his term of imprisonment. Clayton also argues in his brief that the circuit court

erred by not holding an evidentiary hearing on the claims in the habeas petition.

       With respect to Clayton’s claim that the evidence was not sufficient to sustain the

judgment of conviction, the allegation does not state a ground for relief. Mitchell v. Kelley,

2016 Ark. 326 (per curiam). In a habeas proceeding that is not filed under Act 1780,

challenges to the sufficiency of the evidence, which are due-process claims, are not

cognizable. Gardner v. Hobbs, 2014 Ark. 346, 439 S.W.3d 663 (per curiam). Likewise, an

attack on the credibility of Clayton’s victim was not a ground for the writ. See Jones v.

Hobbs, 2015 Ark. 251, at 2–3 (per curiam) (holding that attacks on the credibility of the

witnesses at trial do not provide grounds to grant the writ). 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 proceeding for postconviction relief. Philyaw, 2015 Ark. 465, 477 S.W.3d 503.

       Clayton based his Eighth Amendment argument on the length of his sentence and

his allegation that there were factors, such as his history of psychological problems and

substance abuse that made his culpability questionable and mitigated against the length of

the sentence. The Eighth Amendment claim is outside the scope of a habeas proceeding

because the claim does not implicate the jurisdiction of the trial court or the facial validity

of the judgment. See Grissom v. Hobbs, 2015 Ark. 449, 476 S.W.3d 160 (per curiam), cert.

denied, Grissom v. Kelley, No. 16-5146, 2016 WL 3670848 (U.S. Oct. 3, 2016).

       Clayton did not contend that the sentences imposed on him were outside the

statutory limits for the offenses or that he was a minor when he committed the offenses; he

merely argued that mitigating factors should have been considered to result in a lesser

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sentence. Where the law does not authorize the particular sentence pronounced by a trial

court, the sentence is unauthorized and illegal. See State v. Joslin, 364 Ark. 545, 222 S.W.3d

168 (2006). However, the mere fact that a sentence, which is within the statutory range for

the offense, does not satisfy a petitioner does not entitle a petitioner to release on a writ of

habeas corpus. See Clem v. State, 2011 Ark. 311 (per curiam). Here, Clayton’s habitual-

offender sentences of 600 months’ imprisonment for rape and 360 months’ for second-

degree sexual assault were within statutory range. See Ark. Code Ann. § 5-14-103(c) (Repl.

2006) (rape is a Class Y felony); Ark. Code Ann. § 5-14-125(b)(1) (second-degree sexual

assault is a Class B felony); Ark. Code Ann. § 5-4-401(a)(1) (a sentence for a Class Y felony

may range from 120 months to 480 months or life); Ark. Code Ann. § 5-4-401(a)(3) (a

sentence for a Class B felony may range from 60 months’ imprisonment to 240 months’

imprisonment). Pursuant to Arkansas Code Annotated section 5-4-403(a) , the trial court

had authority to exercise its discretion and order that the sentences imposed on Clayton be

served consecutively. This court has previously rejected the argument that imposition of

consecutive sentences is cruel and unusual punishment. See Thompson v. State, 280 Ark.

265, 658 S.W.2d 350 (1983) (holding that the cumulative effect of consecutive sentences

does not make punishment cruel and unusual); see also Thompson v. State, 2013 Ark. 179, at

5–6 (per curiam) (The mere fact that sentences were imposed consecutively did not serve

to offend the Eighth Amendment prohibition against cruel and unusual punishment.).

       Finally, as to Clayton’s argument that the trial court erred by not holding a hearing

on his habeas petition, we find no error. We have 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

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proper in a habeas proceeding; and, even if a cognizable claim is made, the writ will not be

issued unless probable cause is shown for the writ to be issued. Philyaw, 2015 Ark. 465, at

4, 477 S.W.3d 503, 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

claims Clayton raised in his petition did not demonstrate that the trial court was without

jurisdiction or that the judgment was invalid on its face. The circuit court was therefore

not clearly erroneous in denying habeas relief without a hearing.

       Affirmed.

       Robert Preston Clayton, pro se appellant.

       Leslie Rutledge, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for appellee.




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