                                    Cite as 2016 Ark. 379


                   SUPREME COURT OF ARKANSAS.
                                       No.   CR-16-599


CODY JAMES MALONE                                Opinion Delivered November   3, 2016
                               APPELLANT
                                           PRO SE MOTIONS FOR
V.                                         EXTENSION OF TIME TO FILE
                                           BRIEF AND FOR APPOINTMENT
STATE OF ARKANSAS                          OF COUNSEL
                                  APPELLEE [BENTON COUNTY CIRCUIT
                                           COURT, NO. 04CR-12-971]

                                                 APPEAL DISMISSED; MOTIONS
                                                 MOOT.

                                       PER CURIAM


        On April 11, 2013, appellant Cody James Malone pleaded guilty to fourth-degree

 sexual assault and was sentenced to 72 months’ imprisonment in the Arkansas Department

 of Correction.1 After filing multiple pleadings in the trial court, including a motion to

 correct clerical mistake in the commitment order and a petition for rehearing regarding that

 motion; a petition to correct an illegal sentence pursuant to Arkansas Code Annotated

 section 16-90-111 (Supp. 2015); a petition for writ of habeas corpus; and a petition for writ

 of mandamus—all of which essentially claimed that he was serving an illegal sentence

 because he was not serving his 72-month state sentence in federal custody as per his plea




        1
          It appears that, on October 26, 2012, Malone pleaded guilty in the United States
 District Court, Western District of Arkansas, in case number 5:12CR500550-001, and, on
 March 29, 2013, he was sentenced to thirty years’ imprisonment in the Federal Bureau of
 Prisons. Malone’s judgment-and-commitment order, which was file-marked on April 26,
 2013, noted that his 72-month state sentence was to run concurrently with his federal
 sentence in case number 5:12CR50050-001 and was to “be served in federal custody[.]”
                                     Cite as 2016 Ark. 379

agreement—the trial court denied Malone’s claims for relief in three separate, file-marked

orders on March 17, 2016. Malone has lodged an appeal of the three orders in this court.

Now before us are Malone’s motions for extension of time to file brief and for appointment

of counsel.

       When it is clear from the record that the appellant cannot prevail if an appeal of an

order that denied postconviction relief were permitted to go forward, we dismiss the appeal.

Wheeler v. State, 2015 Ark. 233, 463 S.W.3d 678 (per curiam); see also Justus v. State, 2012

Ark. 91. As it is clear from the record that Malone could not prevail on appeal, the appeal

is dismissed. The dismissal of the appeal renders the motions moot.

       On May 30, 2014, Malone filed a motion to correct a clerical mistake in the

commitment order in the Benton County Circuit Court, arguing that the judgment-and-

commitment order contained an error because he should have been serving his 72-month

sentence in federal custody. On June 12, 2014, the trial court denied relief, finding there

was no clerical error. Moreover, the trial court found that Malone’s claim challenged more

than just a mere clerical error and deemed it an untimely postconviction petition because it

was filed more than 400 days after entry of the judgment on April 26, 2013, pursuant to his

plea. On June 24, 2015, Malone filed a petition for rehearing, contending he had made

exhaustive attempts to correct the illegal imposition of his sentence. On March 17, 2016,

the trial court entered an order denying Malone’s petition for rehearing, finding that it was

without jurisdiction to grant relief.2



       2
           The order denying the petition for rehearing is specifically referenced in the notice

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       A trial court may correct a mere clerical error in a judgment at any time; however,

a motion to correct a judgment that is based on a substantive claim, such as an allegation

that the sentence imposed did not conform to the plea agreement, falls within the purview

of Rule 37.1 of the Arkansas Rules of Criminal Procedure. Samples v. State, 2012 Ark. 146

(per curiam). Here, Malone’s motion to correct clerical error did not assert a mere clerical

error but instead asserted that he should be serving his sentence in federal custody as opposed

to state custody. See id. Rule 37.2(c) requires that, when an appellant entered a plea of

guilty, a petition under the Rule must be filed in the trial court within ninety days of the

date of entry of judgment. See Engstrom v. State, 2016 Ark. 45, 481 S.W.3d 435 (per curiam).

Malone filed his postconviction petition on May 30, 2014, more than one year after entry

of judgment from his plea of guilty—clearly outside the ninety-day period to seek relief

under the Rule. Because the petition was not timely filed, the trial court did not have the

authority to grant the relief sought and properly denied relief. See Tolliver v. State, 2016

Ark. 111, 486 S.W.3d 199 (per curiam).

       On March 31, 2015, Malone filed in the trial court a petition to correct an illegal

sentence pursuant to Arkansas Code Annotated section 16-90-111, claiming the plea

agreement between the parties was void because he was not serving his state sentence in

federal custody. On March 17, 2016, the trial court entered an order denying Malone’s

petition to correct an illegal sentence, finding it was an untimely Rule 37.1 petition.

       Arkansas Code Annotated section 16-90-111(a) allows the trial court to correct an



of appeal filed by Malone, not the underlying motion to correct clerical mistake or the order
denying the motion to correct clerical mistake.
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illegal sentence at any time because a claim that a sentence is illegal presents an issue of

subject-matter jurisdiction. Williams v. State, 2016 Ark. 16, 479 S.W.3d 544 (per curiam).

While the time limitations on filing a petition under section 16-90-111(a) and (b)(1) on the

grounds that the sentence was imposed in an illegal manner were superseded by Arkansas

Rule of Criminal Procedure 37.2(c) (2015), the portion of section 16-90-111 that provides

a means to challenge a sentence at any time on the ground that the sentence is illegal on its

face remains in effect. Halfacre v. State, 2015 Ark. 105, 460 S.W.3d 282 (per curiam). Here,

however, Malone did not argue that his sentence was illegal on its face but rather that it was

imposed in an illegal manner. See Tolliver v. State, 2012 Ark. 46, at 1 (While appellant styled

the petition as one to correct an illegal sentence, his claim was an entitlement to a reduction

in his sentence due to a length of imprisonment he was required to serve under the plea

agreement he accepted.). Because Malone argued he was entitled to relief based on a claim

that his sentence was illegally imposed, it had to be raised in a timely petition under Rule

37.1. See id.

       Notwithstanding that Malone had previously filed a motion to correct clerical error,

which was treated as an untimely Rule 37.1 petition, Rule 37.2(b) provides that all grounds

for relief available to a petitioner under the Rule must be raised in his or her original petition

unless the original petition was denied without prejudice to filing a second petition. See

Hinkston v. State, 2016 Ark. 4, at 4 (per curiam). If a first petition under the Rule is denied

without leave to proceed with a second petition, a petitioner under the Rule is barred from

submitting a subsequent petition. See id. Malone has failed to demonstrate that his first

Rule 37 petition was denied without prejudice; therefore a subsequent Rule 37.1 petition

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would be prohibited. Moreover, even if not considered as a subsequent Rule 37.1 petition,

Malone filed his motion to correct an illegal sentence nearly two years after his judgment

had been entered on the plea of guilty. See Ark. R. Crim. P. 37.2(c). Because the

postconviction petition was untimely, the trial court lacked the authority under the Rule to

grant the relief sought. See Rule 37.2(c); Tolliver, 2012 Ark. 46. Malone did not timely

seek postconviction relief, and the trial court properly denied relief.

       On May 11, 2015, Malone filed a petition for writ of habeas corpus in the trial court,

alleging that, contrary to his plea agreement made and entered on April 11, 2013, he should

not have been confined in the Arkansas Department of Correction (ADC) and should have

been remanded into federal custody to serve his state sentence, and, as a result, he is illegally

incarcerated in the ADC. On September 18, 2015, a letter from Malone was file-marked

by the Benton County Circuit Clerk and was docketed as a petition for writ of mandamus,

which requested that the trial court set a date and issue an order to produce Malone before

the court to dispose of the previously-filed habeas petition. On March 17, 2016, the trial

court entered an order denying Malone’s petition for writ of habeas corpus and declaring

Malone’s petition for writ of mandamus moot. The trial court noted that Malone made no

claim that his sentence was invalid on its face or that the court lacked jurisdiction but merely

made a claim that “he should be serving his sentence in federal custody as opposed to state

custody.” The United States Department of Justice informed Malone that since he was “in

custody on the state charges first they will not accept [Malone] into federal custody until he

finishes his sentence given to him by this [c]ourt.” The petition for writ of mandamus was

rendered moot because a hearing would be to no effect.

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       Any petition for writ of habeas corpus to effect the release of a prisoner is properly

addressed to the circuit court in the county in which the prisoner is held in custody if the

prisoner is incarcerated within the state, unless the petition is filed pursuant to Act 1780 of

2001 Acts of Arkansas, codified at Arkansas Code Annotated sections 16-112-201 to - 208

(Repl. 2006). Hinkston, 2016 Ark. 4. Here, Malone did not bring his proceeding under

Act 1780. Because Malone did not proceed under Act 1780 and because he is incarcerated

in Izard County, the habeas-corpus petition was properly denied by the Benton County

Circuit Court, as it did not have jurisdiction to grant the relief sought. A court does not

have jurisdiction to issue the writ and make it returnable if a prisoner who is in custody in

Arkansas is not in custody in that court’s jurisdiction. Id. Moreover, a petitioner for the

writ who does not allege actual innocence and proceed under Act 1780 of 2001 Acts of

Arkansas must plead either 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 pursuant to Arkansas Code Annotated section 16-112-103(a)(1)

(Repl. 2006). Lovett v. Kelley, 2016 Ark. 127, 487 S.W.3d 361 (per curiam). Malone made

no such allegation that the judgment was facially invalid or that the trial court lacked

jurisdiction. Because the court could not issue the writ, it properly denied relief, and the

petition for writ of mandamus was rendered moot when the trial court ruled on Malone’s

petition because there was no need to have Malone present for a hearing on the habeas-

corpus petition.

       Additionally, to the extent the trial court disposed of Malone’s petition for writ of

habeas corpus—a petition seeking to collaterally attack his judgment-and-commitment

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order—as a petition seeking relief pursuant to Rule 37.1, Malone was still not entitled to

relief because, as discussed previously, it would have been a subsequent Rule 37.1 petition

and untimely nonetheless under the Rule. See Hinkston, 2016 Ark. 4; see generally Friend v.

Norris, 364 Ark. 315, 219 S.W.3d 123 (2005) (A habeas-corpus proceeding is not a substitute

for postconviction relief under Rule 37.1.). Based on all of the foregoing, the appeal is

dismissed, rendering the motions for extension of time to file brief and for appointment of

counsel moot.

       Appeal dismissed; motions moot.




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