Munnerlyn v. State

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                    SUPREME COURT OF ARKANSAS
                                            No.   CR-87-61

                                                       Opinion Delivered     January 23, 2014

ROBERT MUNNERLYN                                       PRO SE SECOND PETITION TO
                                 PETITIONER            REINVEST JURISDICTION IN THE
                                                       TRIAL COURT TO CONSIDER A
v.                                                     PETITION FOR POSTCONVICTION
                                                       RELIEF PURSUANT TO ARKANSAS
STATE OF ARKANSAS                                      RULE OF CRIMINAL PROCEDURE
                               RESPONDENT              37.1 [CIRCUIT COURT OF PULASKI
                                                       COUNTY, 60CR-86-118]



                                                       PETITION DISMISSED.


                                           PER CURIAM

        In 1986, in circuit court case 60CR-86-118, petitioner Robert Munnerlyn was found guilty

of three felony offenses for which an aggregate sentence of life imprisonment was imposed.

This court affirmed. Munnerlyn v. State, 

, 

 (1987).

        On July 8, 2013, petitioner filed in this court a pro se petition for leave to proceed in the

trial court pursuant to Arkansas Rule of Criminal Procedure 37.1 (1986). The petition was

properly filed here because Rule 37.2(a), as it applies to petitioners with judgments entered

before July 1, 1989, which have been affirmed on appeal, requires the petitioner to obtain leave

from this court before filing a postconviction petition in the trial court.1 Rule 37.2(c), as it

        1
        Arkansas Criminal Procedure Rule 37 was abolished by this court effective July 1, 1989.
In re Abolishment of Rule 37 and the Revision of Rule 36 of the Arkansas Rules of Criminal Procedure, 299
Ark. App’x 573, 

 (1989). Rule 37 was reinstated in a revised form on January
1, 1991. In re Reinstatement of Rule 37 of the Arkansas Rules of Criminal Procedure, 303 Ark. App’x
746, 

 (1990). The revised rule does not require petitioners to gain leave of this
court before proceeding in the trial court.
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applies to petitioner, provides that a petition under the Rule is untimely if not filed within three

years of the date of commitment unless the petitioner states some ground for relief which, if

found meritorious, would render the judgment of conviction absolutely void, i.e., a complete

nullity. Halfacre v. State, 

 (per curiam); Travis v. State, 

, 

(1985); Collins v. State, 

, 

 (1981) (per curiam), cert. denied, 

(1981); see Howard v. State, 

, 

 (2006); Rowbottom v. State, 

, 

 (2000) (double-jeopardy claim was a fundamental claim that appellant could raise

for the first time in Rule 37.1 proceedings); see also Collins v. State, 

, 

(1996) (right to twelve-member jury is such a fundamental right that it could be raised for the

first time in a Rule 37.1 proceeding); Jeffers v. State, 

, 

 (1990) (“[A]

ground sufficient to void a conviction must be one so basic that it renders the judgment a

complete nullity, [as,] for example, a judgment obtained in a court lacking jurisdiction to try the

accused.”). The burden is on the petitioner to establish that there is a ground sufficient to void

the judgment of conviction. Travis, 

, 

.

       In his first Rule 37.1 petition, petitioner raised the following claims: that he was entitled

to postconviction relief on the ground that the arrest warrant in his case was invalid; that the

felony information in his case was invalid because the deputy prosecutor overstepped his

authority by signing the information on behalf of the prosecuting attorney; that he was not

adequately informed of his rights under Miranda v. Arizona, 

 (1966); that he was not

afforded effective assistance of counsel. We held that none of the claims was sufficient to void

the judgment-and-commitment order and denied the petition. Munnerlyn v. State, 

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(per curiam).

       Now before us is petitioner’s second Rule 37.1 petition. Rule 37.2, as applicable to

petitioner, provides that all grounds for relief must be raised in the original petition filed under

the Rule, unless the second petition contains an allegation sufficient to void the judgment. See

Craft v. State, 

, 

 (1986). As petitioner has not raised a claim sufficient

to void the judgment in his case, the petition is dismissed.

       In the petition, petitioner first contends again that he was subjected to an illegal arrest

because there was no valid arrest warrant issued and the felony information in his case was

invalid. Both allegations were raised in the original petition and found to be inadequate to

establish that the judgment in the case was void. Petitioner has not stated a ground to revisit

those issues. See Ruiz v. State, 

, 

 (1983).

       Petitioner next asserts that an illegal search was conducted in his case. The allegation is

a claim of trial error. Such claims that were, or could have been, raised in the trial court, and,

if applicable, on the record on direct appeal, are not grounds for Rule 37.1 relief even if the issue

is of constitutional dimension. Murphy v. State, 

 (per curiam). While there is an

exception for issues of error that are sufficient to render a judgment absolutely void under Rule

37.2, as applicable to petitioner, the issue of whether there was evidence obtained by an illegal

search in his case is not an issue of such fundamental nature that the judgment entered against

petitioner would be rendered void by the error. See Sanchez v. State, 

, 

(1986) (per curiam).

       Finally, petitioner raises multiple allegations of ineffective assistance of counsel, most of



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which were raised in some form in the original petition under the Rule. The allegations of

ineffective assistance of counsel raised by petitioner are not grounds for relief because none

establishes a fundamental error that renders the judgment a complete nullity. See Halfacre, 

; Martin v. State, 

, 

 (1982). The burden is on the petitioner

claiming fundamental error to support the claim with facts to demonstrate that a fundamental

right was denied to a particular petitioner under the facts of his or her case. Crain v. State, 

 (per curiam); see Wells v. State, 

 (per curiam); see also Holt v. State, 

, 

 (1984). Appellant has not met that burden. Accordingly, his second

request to reinvest jurisdiction in the trial court to proceed under Rule 37.1 is dismissed.

       Petition dismissed.

       Robert Munnerlyn, pro se petitioner.

       Dustin McDaniel, Att’y Gen., by: Kathryn Henry, Ass’t Att’y Gen., for appellee.




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