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                   SUPREME COURT OF ARKANSAS
                                         No.   CR-12-822

                                                    Opinion Delivered September   26, 2013

JESSIE HILL                                         APPELLEE’S MOTIONS TO DISMISS
                               APPELLANT            APPEAL AND TO STAY BRIEF TIME
                                                    [OUACHITA COUNTY CIRCUIT
V.                                                  COURT, 52CR-95-156, HON. EDWIN
                                                    KEATON, JUDGE]
STATE OF ARKANSAS
                                 APPELLEE
                                                    MOTION TO DISMISS APPEAL
                                                    GRANTED; MOTION TO STAY BRIEF
                                                    TIME MOOT.


                                        PER CURIAM

       Appellant Jessie Hill was convicted of first-degree murder in the Ouachita County Circuit

Court in 1995. No appeal was taken, and this court denied his motion for belated appeal. Hill

v. State, CR-96-710 (Ark. Nov. 4, 1996) (unpublished per curiam). Appellant unsuccessfully

pursued various remedies for postconviction relief in the trial court, including motions under

Act 1780 of 2001 and a petition for writ of error coram nobis. See Hill v. State, 2009 Ark. 248

(unpublished per curiam); Hill v. State, CR-08-637 (Ark. Jan. 30, 2009) (unpublished per curiam).

       In 2012, appellant filed in the trial court a motion “challenging statutory construction and

interpretation” and seeking “judgment of acquittal” on his 1995 conviction. The motion was

denied, and appellant lodged an appeal in this court. After appellant filed his brief, the State

filed motions to dismiss the appeal and to stay the time for filing the State’s brief pending this

court’s decision on the motion to dismiss. The motion to stay brief time is moot because we

grant the motion to dismiss, and we dismiss the appeal.
                                        Cite as 2013 Ark. 358

       An appeal of the denial of postconviction relief will not be permitted to go forward

where it is clear that the appellant could not prevail. Greene v. State, 2013 Ark. 251 (per curiam);

Bryant v. May, 2013 Ark. 168 (per curiam); Glaze v. State, 2013 Ark. 141 (per curiam); King v. State,

2013 Ark. 133 (per curiam). The State asserts in its motion to dismiss that the trial court lacked

jurisdiction to consider the motion appellant filed, contending that it should have been treated

as an untimely motion for postconviction relief under Arkansas Rule of Criminal Procedure 37.1

(2005). Regardless of whether the motion appellant filed may have been treated as a petition

under Rule 37.1, it is clear that appellant cannot prevail because the trial court could not grant

the relief requested in appellant’s motion.

       Appellant’s motion challenging statutory construction and interpretation alleged that,

under the appropriate statutory interpretation, the State failed to prove an element of the crime.

Appellant asserted that the evidence at trial was insufficient because there was no fingerprint

evidence connecting appellant to the gun that was the murder weapon. The prayer for relief

cited our habeas statute. Appellant’s motion, therefore, was appropriately treated as one for

habeas relief. Because appellant was not incarcerated within the Ouachita County Circuit

Court’s jurisdiction, that court did not have jurisdiction to grant habeas relief. See Watts v. State,

2013 Ark. 25 (per curiam); Wilencewicz v. Hobbs, 2012 Ark. 230 (per curiam). Moreover,

appellant’s claim of insufficient evidence also failed to state grounds for habeas relief. Dickinson

v. Norris, 2011 Ark. 413 (per curiam). Assertions of trial error, including a claim of insufficient

evidence, are the type of issues that must be raised at trial or on the record on direct appeal.

Tryon v. Hobbs, 2011 Ark. 76 (per curiam).



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       As the State correctly contends, if the court had elected to treat the claim as a petition

under Rule 37.1, the petition would not have been timely because the petition was filed years

after the judgment of conviction was entered. See Ark. R. Crim. P. 37.2(c) (1995) (where a

conviction was not appealed, a petition claiming relief under the rule must be filed within ninety

days of the date of entry of judgment). Moreover, a claim of insufficient evidence is not

cognizable in Rule 37.1 proceedings. Schniepp v. State, 2012 Ark. 94 (per curiam). If the trial

court had elected to treat the petition for relief as a petition for writ of error coram nobis, the

motion would also fail. Claims of insufficient evidence to support a criminal conviction do not

come within the recognized categories of error-coram-nobis relief. Pierce v. State, 2009 Ark. 606

(per curiam).

       Appellant asserts in his response to the motion to dismiss that this court should recognize

what he characterizes as plain error and that he should be able to raise such a claim of error

regardless of his claim falling within any recognized category of postconviction relief. As noted,

appellant had the opportunity to raise the claim through a direct appeal. Where a state

undertakes to provide access to postconviction proceedings, it is not required to provide

unlimited opportunity to present postconviction claims. See Murry v. State, 2011 Ark. 343 (per

curiam).

       Motion to dismiss appeal granted; motion to stay brief time moot.

       Jessie Hill, pro se appellant.

       No response.




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