ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

May 17, 2001

JAMES K. ANDERSON

Appellant

v.

M.D. REED AND TERRY CASS

Appellees

01-166

PRO SE MOTION TO FILE SUPPLEMENTAL BRIEF [CIRCUIT COURT OF LINCOLN COUNTY, NO. LCIV 00-87, HON. FRED DAVIS, JUDGE]

MOTION DENIED AND APPEAL DISMISSED

In 1999, James K. Anderson pleaded guilty to murder in the second-degree and was sentenced to forty years' imprisonment. In 2000, Anderson filed in the circuit court in the county in which he was incarcerated a pro se petition for writ of habeas corpus. The petition was denied. The record on appeal from that order has been lodged here. Appellant Anderson now seeks leave to file a supplemental brief.

The motion is denied, and the appeal dismissed 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. 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 trial court erred: by engaging in an ex parte communication and judicial investigation; by issuing an order declining to file his pro se pleadings; by erroneous rulings on the admissibility of evidence; by coercing him to accept a plea bargain; by departing from the presumptive sentence for the offense of which appellant was convicted and not justifying the departure in writing; by not marking any aggravating circumstances on the departure report; and by enhancing his sentence pursuant to a discriminatory and unconstitutional act. He also alleged that his attorney was ineffective.

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). Appellant did not complain that the commitment was invalid or that the trial court lacked jurisdiction; and even if the petition contained an allegation that could be construed as raising such a challenge, none of the claims raised by appellant was sufficient to demonstrate that the trial court lacked jurisdiction or that the commitment was invalid.

Motion denied and appeal dismissed.