ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

FEBRUARY 15, 2001

GARY DUANE DAVIS

Appellant

v.

STATE OF ARKANSAS

Appellee

CR 00-1002

PRO SE MOTION FOR EXTENSION OF TIME TO FILE BRIEF [CIRCUIT COURT OF GARLAND COUNTY, NO. CR 94-526CC, HON. TOM SMITHERMAN, JUDGE]

MOTION MOOT; APPEAL DISMISSED

In 1995, Gary Duane Davis was found guilty by a jury of robbery and sentenced to 480 months' imprisonment. We affirmed. Davis v. State, 325 Ark. 194, 925 S.W.2d 402 (1996). On June 28, 2000, Davis filed in the trial court a pro se petition for writ of habeas corpus seeking release from custody. The petition was denied. The record on appeal from that order has been lodged here. Appellant Davis seeks an extension of time to file the appellant's brief.

We declare the motion moot and dismiss the appeal as it is clear that the appellant could not succeed on appeal. This court has consistently held that an appeal of the denial of postconviction relief will not be permitted to go forward where it is clear that the appellant could not prevail. Pardue v. State, 338 Ark. 606, 999 S.W.2d 198 (1999); Seaton v. State, 324 Ark. 236, 920 S.W.2d 13 (1996); Harris v. State, 318 Ark. 599, 887 S.W.2d 514 (1994); Reed v. State, 317 Ark. 286, 878 S.W.2d 376 (1994); see Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991); Johnson

v. State, 303 Ark. 560, 798 S.W.2d 108 (1990); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987).

Appellant contended in the petition for writ of habeas corpus that the commitment issued in his case was invalid on the grounds that: his attorney was ineffective at trial and on appeal; the prosecutor prejudiced him by telling the jury that he was from outside the State; the arrest warrant was invalid; and the jury was not racially balanced. It is well settled that the burden is on the petitioner in an habeas corpus action 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. Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990). The petitioner must plead either the facial invalidity or the lack of jurisdiction and make a "showing, by affidavit or other evidence, [of] probable cause to believe" he is illegally detained. Ark. Code Ann. 16-112-103 (1987). See Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 478 (1989). The issues raised by appellant in the petition did not constitute a showing by affidavit or other evidence that the trial court lacked jurisdiction or that the judgment of commitment was invalid on its face.

Moreover, appellant was not incarcerated in Garland County when he filed the petition there. 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. Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991).

Motion moot; appeal dismissed.