Jones v. Kelley

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                   SUPREME COURT OF ARKANSAS.
                                       No.   CV-16-381


BERNARD JONES                                    Opinion Delivered November   3, 2016
                               APPELLANT
                                                 PRO SE MOTION TO FILE
V.                                               BELATED BRIEF
                                                 [LINCOLN COUNTY CIRCUIT
                                                 COURT, NO. 40CV-15-93]
WENDY KELLEY, DIRECTOR,
ARKANSAS DEPARTMENT
CORRECTION
                     APPELLEE APPEAL DISMISSED; MOTION
                              MOOT.

                                       PER CURIAM


        On November 10, 2015, appellant Bernard Jones, who was incarcerated at a unit of

 the Arkansas Department of Correction located in Lincoln County, filed in the Circuit

 Court of Lincoln County a pro se petition for writ of habeas corpus. In a letter file-marked

 November 12, 2015, Jones wrote the Lincoln County Circuit Court advising it that he was

 no longer incarcerated in the Varner Unit and was in Texarkana, Arkansas, which is in

 Miller County.1 On February 5, 2016, The Lincoln County Circuit Court entered an order

 dismissing Jones’s habeas-corpus petition without prejudice because the “petitioner has been

 relocated to a 309 work program located in Miller County, Arkansas.”




        1
          The verification on the petition for the writ of habeas corpus indicates that Jones
 signed it on August 30, 2015, and the certificate of service to the Lincoln County
 Prosecuting Attorney’s Office was also dated August 30, 2015. The letter from Jones to the
 circuit court, noting his change of address, was dated November 8, 2015.
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       On February 19, 2016, Jones filed a notice of appeal from the circuit court’s order,

and the record on appeal was timely lodged here on May 2, 2016.2 Jones’s brief was due

on June 11, 2016, and, on June 10, 2016, he tendered loose documents labeled as “brief,”

which were returned to him, as the “brief” was noncompliant with Rule 4-7 of the Rules

of the Arkansas Supreme Court (2015). Jones was given fourteen days to submit a corrected

brief, which was due on June 24, 2016. On June 27, 2016, Jones again tendered a brief,

which was not accepted for filing because it was noncompliant and late. On July 28, 2016,

Jones tendered a noncompliant brief and a motion to file belated brief. Jones’s motion to

file belated brief was filed,3 and it is that motion that is now before the court.

       Because it is clear from the record that Jones could not prevail on appeal, we dismiss

the appeal, and the motion is therefore moot. An appeal from an order that denied a petition

for postconviction relief, including a petition for writ of habeas corpus, will not be permitted

to go forward where it is clear that the appellant could not prevail. Hinkston v. State, 

 (per curiam). 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 this state, unless the petition is filed under




       2
        Jones’s notice of appeal referenced an appeal from Hempstead County; however,
the pleading was filed in Lincoln County and bears a Lincoln County heading and case
number, 40CV-15-93. The date of the order referenced is also within one week of the
Lincoln County order.
       3
       Although Jones’s motion to file belated brief bears a Hempstead County criminal
case number, 29CR-14-79, which he incorrectly denoted as 29CR-14-19—his underlying
criminal case number—the motion clearly references his appeal in this matter, CV-16-381,
which arises out of his Lincoln County case, and, as such, it was filed.
                                                2
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Act 1780 of 2001 Acts of Arkansas, codified at Arkansas Code Annotated sections 16-112-

201 to –208 (Repl. 2006). Williams v. State, 

, 

 (per curiam).

Here, Jones did not bring any proceeding under Act 1780.

       Although Jones was incarcerated in a facility in Lincoln County at the time he filed

his petition, he is no longer incarcerated in Lincoln County. A circuit court does not have

jurisdiction to release, on a writ of habeas corpus, a prisoner not in custody in that court’s

jurisdiction. Wilencewicz v. Hobbs, 

, at 2 (per curiam). When a prisoner who

seeks habeas relief is transferred to a facility in a different county in the state, the circuit

court in the county where the prisoner was previously incarcerated no longer has

jurisdiction to issue and make returnable a writ. 

 This court will dismiss an appeal of the

denial of a petition for writ of habeas corpus where the appellant is no longer incarcerated

in the county where his petition was filed because the court can no longer grant the relief

sought. Id.; see Davis v. Hobbs, 

 (per curiam). Based on the foregoing, the

appeal is dismissed, rendering the motion to file belated brief moot.

       Appeal dismissed; motion moot.




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