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                   SUPREME COURT OF ARKANSAS
                                         No.   CV-13-115

FREDERICK PENNINGTON, JR.                           Opinion Delivered September   4, 2014
                   APPELLANT
                                                    PRO SE MOTIONS FOR STAY
V.                                                  PENDING APPEAL AND FOR
                                                    SUPERSEDEAS, TO SUPPLEMENT
                                                    ADDENDUM, AND FOR
RAY HOBBS, DIRECTOR, ARKANSAS                       APPOINTMENT OF COUNSEL, AND
DEPARTMENT OF CORRECTION                            PETITION FOR WRIT OF HABEAS
                       APPELLEE                     CORPUS
                                                    [JEFFERSON COUNTY CIRCUIT
                                                    COURT, NO. 35CV-12-671]

                                                    HONORABLE JODI RAINES DENNIS,
                                                    JUDGE

                                                    APPEAL DISMISSED; MOTIONS FOR
                                                    STAY PENDING APPEAL AND FOR
                                                    SUPERSEDEAS, TO SUPPLEMENT
                                                    ADDENDUM, AND FOR
                                                    APPOINTMENT OF COUNSEL
                                                    MOOT; PETITION FOR WRIT OF
                                                    HABEAS CORPUS DENIED.


                                        PER CURIAM


       In 1978, appellant Frederick Pennington, Jr., entered a negotiated plea of guilty in the

Pulaski County Circuit Court to first-degree murder, four counts of aggravated robbery, and

first-degree battery. He received concurrent sentences of life imprisonment for the charge of

first-degree murder and each of the aggravated-robbery charges and 240 months’ imprisonment

for the battery charge.1 Appellant was a minor at the time of the commission of the crimes.2


       1
       The sentencing order refers to appellant’s parole eligibility after serving one-third of his
sentence. However, under Act 1993 of 1977, which was in effect when appellant committed the
                                      Cite as 2014 Ark. 356

       In 2012, appellant, who was incarcerated at a facility of the Arkansas Department of

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

Jefferson County Circuit Court.3 In support of issuance of the writ, appellant alleged that his

constitutional rights were violated when he was sentenced to life imprisonment without the

possibility of parole for crimes committed when he was a minor, that he is actually innocent of

the crimes for which he was convicted, that he was denied a transfer hearing and a juvenile-

detention hearing, and that he did not enter his guilty plea upon advice of competent counsel.

Additionally, appellant filed multiple pleadings entitled “Amended and Supplemental Pleadings”

on November 19, 27, 30, and December 6, 2012, in which he raised the same grounds for

issuance of the writ as presented in his petition, as well as allegations of police brutality. The

circuit court denied appellant’s request for issuance of the writ, and appellant timely filed a

notice of appeal from the order.

           Now before us are appellant’s motions to stay and for supersedeas, to supplement the

addendum, and for appointment of counsel, as well as a petition for writ of habeas corpus.

Because it is clear that appellant could not prevail if the appeal were permitted to go forward,

we dismiss the appeal, and the motions for stay and for supersedeas, to supplement the


crimes, appellant is not eligible for release on parole unless his life sentences are commuted to
a term of years by executive clemency. See Ark. Code Ann. § 16-93-604 (Repl. 2006) (applying
to felonies committed between April 1, 1977, and April 1, 1983).
       2
        The trial record reflects that appellant’s date of birth is August 23, 1961, and that the
crimes were committed on October 22, 1977; thus, appellant was sixteen years old at the time
of the commission of the crimes.
       3
       As of the date of this opinion, appellant remains incarcerated at a facility in Jefferson
County.

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addendum, and for appointment of counsel are moot. In the petition for writ of habeas corpus,

appellant raises the same allegations that were asserted in the petition and supplemental

pleadings that were filed in the circuit court. Because we determine that appellant failed to state

a basis for issuance of the writ in the petition and supplemental pleadings that were filed in and

ruled on by the circuit court, we decline to address the petition filed directly in this court, and

the petition is therefore denied.

       In regard to appellant’s appeal, an appeal from an order that denied a petition for

postconviction relief, including an appeal from an order that denied a petition for writ of habeas

corpus, will not be permitted to go forward where it is clear that the appellant could not prevail.

Roberson v. State, 2013 Ark. 75 (per curiam). 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.

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

face or when a trial court lacked jurisdiction over the cause. Girley v. Hobbs, 2012 Ark. 447 (per

curiam); Abernathy v. Norris, 2011 Ark. 335 (per curiam). The burden is on the petitioner in a

habeas-corpus petition to establish that the circuit 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).

Under our statute, a petitioner who does not allege his actual innocence and proceed under Act



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1780 of 2001 Acts of Arkansas must plead either the facial invalidity or the lack of jurisdiction

by the circuit court and must additionally 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); Murphy v. State, 2013 Ark. 155 (per curiam); Murry v. Hobbs, 2013 Ark. 64 (per curiam).

       Appellant first asserted in his petition that his sentences of life imprisonment without

parole are unconstitutional. Specifically, he argued that the circuit court lacked jurisdiction to

issue a life sentence due to his minority at the time of the commission of the crimes. In the

petition, appellant cited Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012), for the

proposition that a sentencing scheme that mandates a life sentence without parole for defendants

who were minors at the time of the commission of their crimes violates the Eighth Amendment

to the United States Constitution. The circuit court held that Miller is inapplicable to appellant’s

case, and we agree.

       In Miller, the Supreme Court held “that the Eighth amendment forbids a sentencing

scheme that mandates life in prison without possibility of parole for juvenile offenders.” Id. at

___, 132 S. Ct. at 2469. We recently revisited the tenants of Miller in Brown v. Hobbs, 2014 Ark.

267. In affirming the denial of habeas relief where a juvenile offender, after entering a

negotiated plea of guilty to first-degree murder, was sentenced to life without the possibility of

parole, this court explained,

       [I]n Miller, the Supreme Court explicitly held that the Eighth Amendment’s protections
       against cruel and unusual punishment forbid a sentencing scheme that mandates life in
       prison without possibility of parole for juvenile homicide offenders. See Miller, 132 S. Ct.
       at 2464, 2469. Thus, Miller is only applicable in Arkansas when a mandatory life sentence
       is imposed without the sentencer’s being able to ‘take into account how children are
       different, and how those differences counsel against irrevocably sentencing them to a

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       lifetime in prison.’ Id. at 2469.

Brown, 2014 Ark. 267, at 5 (quoting Murry v. Hobbs, 2013 Ark. 64 (per curiam) (holding that Miller

is inapposite where a juvenile’s life sentence for first-degree murder was not mandatory)); see also

Smith v. State, 2014 Ark. 204, ___ S.W.3d ___ (holding that Miller is inapplicable where a juvenile

homicide offender’s sentence of life without parole was not mandatory); Britt v. State, 2014 Ark.

134 (per curiam) (holding that, because life sentence for first-degree murder was not mandatory,

it is not illegal under Miller); Hobbs v. Turner, 2014 Ark. 19, 431 S.W.3d 283 (holding that Miller

is inapplicable where a juvenile homicide offender was not subjected to a mandatory life-

without-parole sentence) (citing Holland v. Hobbs, No. 5:12CV00463-SWW-JJV, 2013 WL

6332731, at *4 (E.D. Ark. Dec. 5, 2013)).

       In the instant case, appellant entered a negotiated plea of guilty to, and received sentences

of life without parole for, the charges of first-degree murder and aggravated robbery.4 At the

time the crimes were committed, first-degree murder and aggravated robbery were classified as

Class A felonies. Ark. Stat. Ann. § 41-1502(3) (Repl. 1977); Ark. Stat. Ann. § 41-2102 (Repl.

1977). A Class A felony was punishable by “not less than five years nor more than fifty years,

or life.” Ark. Stat. Ann. § 41-901 (Repl. 1977). Thus, appellant was not subjected to a

mandatory sentence of life without parole, and his sentences, therefore, are not illegal under

       4
         Appellant did not specify in the pleadings below which of the five life sentences were
unconstitutional under Miller—the sentence imposed for the charge of first-degree murder or
the four sentences imposed for the charges of aggravated robbery. We note that in Graham v.
Florida, 560 U.S. 48 (2010), the Court concluded that the Eighth Amendment prohibits the
imposition of a life-without-parole sentence on a juvenile nonhomicide offender. However, the
issue of the constitutionality of the life-without-parole sentences, which were imposed for the
aggravated-robbery charges, is not before us at this time as Graham was not raised below other
than in a string citation contained in one of the amended pleadings.

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Miller.

          The remaining assertions raised by appellant below and addressed by the circuit court

concern due-process violations, ineffective assistance of counsel, and police misconduct. Such

claims are not cognizable in a habeas proceeding because they do not call into question the

jurisdiction of the circuit court or the facial validity of the judgment-and-commitment order.

Murphy, 2013 Ark. 155 (ineffective-assistance-of-counsel claims are not cognizable in a habeas

proceeding); McHaney v. Hobbs, 2012 Ark. 361 (per curiam) (due-process allegations are not

cognizable in a habeas proceeding); Tryon v. Hobbs, 2011 Ark. 76 (per curiam) (due process and

prosecutorial misconduct are matters of trial error and are not cognizable in a habeas

proceeding). A habeas proceeding does not afford a prisoner an opportunity to retry his case.

Tarkington v. Norris, 2012 Ark. 147 (per curiam). Appellant’s allegations were, or should have

been, raised and argued at trial, on direct appeal, or in a timely petition for postconviction relief.5

          As for appellant’s assertion that he is actually innocent of the crimes for which he was

convicted, a petitioner asserting the right to be released on a writ of habeas corpus on the

ground of actual innocence must proceed under Act 1780 of 2001, codified at Arkansas Code

Annotated sections 16-112-201 to -208 (Repl. 2006). Appellant did not invoke Act 1780 in his

petition.

          Because appellant failed to show that the circuit court lacked jurisdiction or that the

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

should issue.     See Friend v. Norris, 364 Ark. 315, 219 S.W.3d 123 (2005) (per curiam).

          5
       When a defendant enters a plea of guilty, the plea is his or her trial. Crockett v. State, 282
Ark. 582, 669 S.W.2d 896 (1984).

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Accordingly, the circuit court did not err in denying appellant’s habeas-corpus petition, and

appellant could not prevail if the appeal were permitted to go forward.

       Appeal dismissed; motions for stay pending appeal and for supersedeas, to supplement

addendum, and for appointment of counsel moot; petition for writ of habeas corpus denied.

       Frederick Pennington, Jr., pro se appellant.

       No response.




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