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                  SUPREME COURT OF ARKANSAS
                                       No.   CV-13-665

ANTONIO BRITT                                     Opinion Delivered   March 20, 2014
                               APPELLANT
                                                  PRO SE MOTIONS FOR
V.                                                APPOINTMENT OF COUNSEL AND
                                                  FOR EXTENSION OF TIME TO FILE
                                                  BRIEF [LEE COUNTY CIRCUIT
STATE OF ARKANSAS                                 COURT, NO. 39CV-13-67]
                                 APPELLEE
                                                  HONORABLE RICHARD L.
                                                  PROCTOR, JUDGE

                                                  APPEAL DISMISSED; MOTIONS
                                                  MOOT.


                                        PER CURIAM


       In 1996, appellant Antonio Britt was found guilty by a jury of first-degree murder,

attempted first-degree murder, two counts of aggravated robbery (merged with the murder

convictions), and two counts of kidnapping. The date of the offenses was April 9, 1995. On

appeal, this court reversed and remanded the case for retrial, holding that the trial court

erroneously denied appellant’s motion to suppress two statements. Britt v. State, 334 Ark. 142,

974 S.W.2d 436 (1998). On retrial in 2000, appellant was found guilty by a jury of first-degree

murder, attempted first-degree murder, and two counts of kidnapping. Three terms of life

imprisonment for first-degree murder and each count of kidnapping, plus an additional

consecutive sentence of 360 months’ imprisonment for attempted first-degree murder, were

imposed. This court affirmed. Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001).

       On May 23, 2013, appellant filed in the Lee County Circuit Court a pro se petition for
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writ of habeas corpus, arguing that his life sentence for first-degree murder was illegal because

he was a juvenile when the crime was committed. The circuit court dismissed the petition,

finding that the petition did not conform to pleading rules. Appellant lodged an appeal from

that order in this court. Now before us are appellant’s motions for appointment of counsel and

for extension of time to file his brief-in-chief.

       We dismiss the appeal, and the motions are moot as it is clear from the record that

appellant could not prevail on appeal. An appeal of the denial of postconviction relief, including

an appeal from an order that denied a petition for habeas corpus, will not be permitted to go

forward when it is clear that the appeal is without merit. Glaze v. State, 2013 Ark. 458 (per

curiam).

       The burden is on the petitioner in a habeas-corpus petition to establish that the trial 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. Culbertson v. State, 2012 Ark. 112 (per

curiam). Under our statute, a petitioner who does not allege actual innocence and proceed under

Act 1780 of 2001 Acts of Arkansas 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); Darrough v. State, 2013 Ark. 28 (per curiam). A circuit court’s denial of

habeas relief will not be reversed unless the court’s findings are clearly erroneous. Justus v. Hobbs,

2013 Ark. 149 (per curiam).

       While appellant’s petition consisted primarily of quotes from various cases, and his

argument lacked development, it appears that he was contending that he is entitled to habeas



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relief based on his sentence of life imprisonment for first-degree murder committed while he

was a juvenile. In his petition, appellant quoted extensively from the United States Supreme

Court’s decision in Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455 (2012), in which the 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.1 Miller is only applicable 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 lifetime in prison.” Murry v.

Hobbs, 2013 Ark. 64 (per curiam) (quoting Miller, __ U.S. __, 132 S. Ct. at 2469). The Miller

Court explained that it was not considering appellant’s “alternative argument that the Eighth

Amendment requires a categorical bar on life without parole for juveniles, or at least for those

14 or younger.” Id. (quoting Miller, __ U.S. __, 132 S. Ct. at 2469).

       On retrial, appellant was charged and convicted of first-degree murder pursuant to

Arkansas Code Annotated section 5-10-102 (Repl. 1993). Murder in the first degree is a Class

Y felony, which is punishable by “not less than ten (10) years and not more than forty (40) years,




       1
        In his petition, appellant also quoted Graham v. Florida, 560 U.S. 48 (2010), in which the
Supreme Court held that the Eighth Amendment “forbids a State from imposing a life without
parole sentence on a juvenile nonhomicide offender.” 560 U.S. at 75. While appellant was
sentenced to life imprisonment for a homicide offense as well as to life sentences for two counts
of kidnapping, a nonhomicide offense, he stated in his petition that his argument was
“concerned with the imposition of a term of imprisonment on offenders who kill.” Because
appellant failed to raise an argument based on Graham below, any such argument could not be
raised on appeal. See State v. Robinson, 2013 Ark. 425, __ S.W.3d __. Accordingly, we do not
consider whether appellant’s life sentences for nonhomicide convictions violate the Supreme
Court’s holding in Graham.

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or life.” Ark. Code Ann. § 5-4-401(a)(1) (Repl. 1993).2 At trial, the jury was authorized to

sentence appellant to any term within that range. See Ark. Code Ann. § 5-4-104(c)(1) (Repl.

1993). The only mandatory life sentence in Arkansas’s sentencing scheme at the time that

appellant committed his crimes was for capital murder or treason. See Ark. Code Ann. § 5-4-

104(b) (“A defendant convicted of capital murder . . . or treason . . . shall be sentenced to death

or life imprisonment without parole.”).

       In Murry, this court held that when, after deliberation, a jury imposed a juvenile

offender’s life sentence for first-degree murder from a range of possible punishments, his life

sentence was not mandatory and, thus, not illegal under Miller. 2013 Ark. 64. Based on our

holding in Murry, we hold that appellant’s life sentence for first-degree murder was not

mandatory such that this sentence was not illegal under Miller.3 Because it is clear that appellant

could not prevail if his appeal were allowed to proceed, his appeal is dismissed, and the motions

are moot.

       Appeal dismissed; motions moot.

       Antonio Britt, pro se appellant.

       No response.


       2
         A life sentence in Arkansas generally means life without the possibility of parole. Hobbs
v. Turner, 2014 Ark. 19, __ S.W.3d __; see Ark. Code Ann. § 16-93-614(c)(1)(B) (Supp. 2013)
(stating that inmates sentenced to life for offenses committed after January 1, 1994, are not
eligible for transfer to community corrections unless the sentence is commuted to a term of
years by executive clemency).
       3
        We also recognize that appellant did not append to the habeas petition a copy of the
judgment of conviction being challenged or otherwise provide any substantiation of his claims.
Thus, he failed to meet his burden of “showing by affidavit or other evidence [of] probable
cause to believe” that he is illegally detained. See Jones v. State, 2014 Ark. 67 (per curiam).

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