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                   SUPREME COURT OF ARKANSAS
                                          No. CV-16-318

                                                  Opinion Delivered: October 6, 2016
DENVER MITCHELL
                                 APPELLANT        PRO SE APPEAL FROM THE LEE
V.                                                COUNTY CIRCUIT COURT
                                                  [NO. 39CV-15-119]
WENDY KELLEY, DIRECTOR,
ARKANSAS DEPARTMENT OF
CORRECTION                                        HONORABLE RICHARD L.
                     APPELLEE                     PROCTOR, JUDGE

                                                   AFFIRMED.


                                        PER CURIAM

           Appellant Denver Mitchell filed a pro se petition for writ of habeas corpus in the

circuit court of the county where he was incarcerated,1 and, after the circuit court denied

the petition, Mitchell lodged this appeal. Mitchell failed to raise a claim in the petition that

was within the purview of a habeas action, and we therefore affirm.

           Mitchell was convicted of first-degree murder in the Greene County Circuit Court,

and he appealed the judgment. This court affirmed. Mitchell v. State, 314 Ark. 343, 862

S.W.2d 254 (1993). After Mitchell sought postconviction relief under Arkansas Rule of

Criminal Procedure 37.1 (1995), his petition was denied, and this court granted a motion

to proceed with a belated appeal of the order. Mitchell v. State, CR-95-834 (Ark. Oct. 2,

1995) (unpublished per curiam). That appeal was dismissed, however, when this court




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         As of the date of this opinion, Mitchell remains incarcerated in Lee County.
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granted the State’s motion seeking a dismissal on the basis of a deficient abstract. Mitchell v.

State, CR-95-834 (Ark. Dec. 11, 1995) (unpublished per curiam).

       In his habeas petition, Mitchell raised three grounds for relief. In the first two

grounds, Mitchell asserted that the judgment was facially invalid because the attorney

representing him at trial and on appeal was ineffective. In the third ground, Mitchell

contended that the judgment was invalid because he is actually innocent. In the order

denying the petition, the circuit court found that all of Mitchell’s claims were grounded in

ineffective assistance of counsel and that ineffective-assistance claims are not cognizable in

habeas proceedings. On appeal, Mitchell contends that he demonstrated probable cause to

establish the facial invalidity of his commitment, that his attachments to the habeas petition

showed his actual innocence of the murder, and that the circuit court failed to address the

issues in his second and third grounds for habeas relief.

       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.

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

face or when a circuit 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


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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). Unless the petitioner in

proceedings for a writ of habeas corpus can show that the trial court lacked subject-matter

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.

       Mitchell did not invoke Act 1780, and proceedings under Act 1780 must be filed in

the court in which the conviction was entered. Ark. Code Ann. § 16-112-201(a). In habeas

proceedings not filed under Act 1780, claims of actual innocence, which are effectively

challenges to the sufficiency of the evidence, are due process claims that are not cognizable

in habeas proceedings. Gardner v. Hobbs, 2014 Ark. 346, 439 S.W.3d 663 (per curiam). 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 postconviction relief. Philyaw, 2015 Ark. 465, 477

S.W.3d 503. Mitchell’s claims of a demonstration that he was innocent in the attachments

to the habeas petition are therefore of no avail. To the extent that the circuit court may

not have addressed any of Mitchell’s arguments in his third ground for relief because those

claims were based on his innocence rather than ineffective assistance of counsel, Mitchell’s

claims nevertheless were not ones within the purview of the proceedings.

       As for Mitchell’s third point on appeal, the circuit court did address Mitchell’s claims

in both the first and second grounds for relief in the petition because, to the extent those

arguments were not based on his claims of innocence, both grounds were based on claims

of ineffective assistance. Ineffective-assistance-of-counsel claims are also not cognizable in

habeas proceedings. McConaughy v. Lockhart, 310 Ark. 585, 840 S.W.2d 166 (1992).


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Ineffective assistance is the type of factual issue that requires the kind of inquiry well beyond

the facial validity of the commitment. See Friend v. Norris, 364 Ark. 315, 219 S.W.3d 123

(2005) (per curiam).

       Mitchell contends on appeal, as he did in the habeas petition, that he was entitled to

counsel for his Rule 37 proceedings under the United States Supreme Court’s holdings in

Martinez v. Ryan, 132 S. Ct. 1309 (2012) and Trevino v. Thaler, 133 S. Ct. 1911 (2013), and

he weaves into all of his claims an argument that, because he was not appointed counsel for

those proceedings, he must be allowed to pursue those claims in habeas proceedings. This

court has rejected, however, the argument that Martinez and Trevino require appointment

of counsel. Mancia v. State, 2015 Ark. 115, 459 S.W.3d 259. Therefore, the mere fact that

Mitchell was not represented by counsel during his Rule 37 proceedings does not render

the judgment invalid.

       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). None of the claims

Mitchell raised, whether based on ineffective assistance or on his actual innocence, were

cognizable for the writ. The circuit court was therefore not clearly erroneous in denying

habeas relief.

       Affirmed.

       Denver Mitchell, pro se appellant.

       Leslie Rutledge, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee




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