Terry Lee v. Dexter Payne, Director, Arkansas Division of Correction
CourtCourt of Appeals of Arkansas
Date FiledOctober 7, 2026
StatusPublished
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Full Opinion
Cite as 2026 Ark. App. 470
ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-24-771
TERRY LEE Opinion Delivered: October 7, 2026
APPELLANT
APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT
V. [NO. 35CV-23-421]
DEXTER PAYNE, DIRECTOR, HONORABLE JODI RAINES
ARKANSAS DIVISION OF DENNIS, JUDGE
CORRECTION
APPELLEE AFFIRMED
BRANDON J. HARRISON, Judge
Appellant Terry Lee appeals from a Jefferson County Circuit Court order dismissing
his petition for writ of habeas corpus filed pursuant to Arkansas Code Annotated sections
16-112-101 to -123 (Repl. 2016). In his petition, Lee asserted numerous allegations of trial
error, due-process violations, and a transfer-eligibility error. The circuit court denied Lee’s
petition, finding that his claims were not cognizable in a habeas proceeding and he had
therefore failed to establish probable cause that he was being illegally detained. We affirm.
I. Background Facts and Procedural History
On 19 January 2012, a Pulaski County jury found Lee guilty of committing a
terroristic act, attempting to commit first-degree battery, and four counts of aggravated
assault. Lee v. State, 2013 Ark. App. 209 (Lee I). He received a firearm enhancement and,
consequently, was sentenced as a habitual offender to an aggregate term of eighty-five years’
imprisonment. Id.
Lee filed a timely direct appeal in this court, arguing that the circuit court erred by
denying his directed-verdict motions; that it abused its discretion by refusing to instruct the
jury on concurrent and consecutive sentences; and that he could not be convicted of a
terroristic act, attempted first-degree battery, and aggravated assault without being subjected
to double jeopardy. This court affirmed his convictions and sentences. Id.
Lee filed a timely pro se petition and an amended petition for postconviction relief
pursuant to Arkansas Rule of Criminal Procedure 37 in the Pulaski County Circuit Court.
In those petitions, Lee asserted eight claims of ineffective assistance of counsel as well as
claims of a violation of the prohibition against double jeopardy; prosecutorial misconduct;
illegal arrest; insufficient evidence; malicious prosecution; and biased trial participants. He
also claimed that the circuit court had erred by failing to hold a competency hearing; by
illegally exercising jurisdiction due to an improper transfer; by failing to allow allocution;
by using inconsistent verdict forms; and in sentencing him to consecutive, rather than
concurrent, terms of imprisonment. Lee v. State, 2016 Ark. 293, 498 S.W.3d 283 (Lee II).
The circuit court held two hearings on Lee’s petitions, after which it denied relief. The
supreme court initially remanded the case for additional findings. Id. After a supplemental
record and briefs were filed, the supreme court affirmed the denial of Lee’s petitions for
postconviction relief. Lee v. State, 2017 Ark. 337, 532 S.W.3d 43 (Lee III).
On 22 June 2023, Lee filed a petition for writ of habeas corpus in Jefferson County,
the county of his incarceration. In that petition, he asserted numerous claims for relief:
including (1) the circuit court lacked jurisdiction over his criminal case because it was
transferred from one division of the Pulaski County Circuit Court to another without an
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appropriate order; (2) his right to due process was violated because the jury instructions for
the crimes of committing a terroristic act and criminal attempt to commit first-degree battery
were defective in failing to name a victim of the crimes; (3) the State presented insufficient
evidence to support his convictions; (4) his felony information was improperly amended
prior to trial; (5) his judgment and commitment order was invalid because he was not
indicted by a grand jury; (6) his sentence was void because the circuit court, not the jury,
fixed his sentence; (7) there has been a change in his transfer eligibility such that the director
of the Arkansas Division of Correction (ADC) now states that Lee is no longer eligible for
good-time credit which, Lee claims, violates his Sixth Amendment rights; (8) his initial
arrest was illegal; and (9) the jury was incorrectly instructed on the firearm enhancement.
The circuit court entered an order dismissing the petition on 2 October 2023. In
doing so, it found the following:
Petitioner listed numerous issues in his petition, but they are not ones
that support habeas relief. A habeas corpus proceeding does not afford a
petitioner a means to revisit the merits of matters that could have been
addressed, and settled, in the trial court, on appeal, or in a postconviction
proceeding. Murphy v. State, 2013 Ark. 155 (2013). It appears petitioner
pursued an appeal and a Rule 37 petition, but both were unsuccessful.
Petitioner’s claims are not jurisdictional in nature and his sentencing
order is not invalid on its face. Petitioner has failed to make a showing, by
affidavit or other evidence, of probable cause to believe that he is illegally
detained. A.C.A. § 16-112-103(a)(1) (Repl. 2006); Philyaw v. Kelley, 2015
Ark. 465, 477 SW.3d 503 (2015).
Lee did not file a timely notice of appeal but filed a pro se motion for rule on clerk on 15
July 2024. The supreme court treated that motion as one for belated appeal and granted it
on 23 January 2025. This appeal followed.
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II. Standard of Review and Applicable Law
A writ of habeas corpus is proper when a judgment and commitment order is invalid
on its face or when a circuit court lacks jurisdiction over the cause. Hunter v. Payne, 2023
Ark. 79, 666 S.W.3d 76. Jurisdiction is the power of the court to hear and determine the
subject matter in controversy. Id. When the circuit court has personal jurisdiction over the
appellant and also has jurisdiction over the subject matter, the court has authority to render
the judgment. Id.
A petitioner for the writ who does not allege his or her actual innocence and proceeds
under Act 1780 of 2001 must plead either the facial invalidity of the judgment or the circuit
court’s lack of jurisdiction and make a showing, by affidavit or other evidence, of probable
cause to believe that he or she is being illegally detained. Id. (citing Ark. Code Ann. § 16-
112-103(a)(1) (Repl. 2016)). Proceedings for the writ do not require an extensive review
of the record of the trial proceedings, and the circuit court’s inquiry into the validity of the
judgment is limited to the face of the commitment order. Id. Unless the petitioner can
show that the commitment order was invalid on its face, there is no basis for a finding that
a writ of habeas corpus should issue. Id.
A circuit court’s decision on a petition for writ of habeas corpus will be upheld unless
it is clearly erroneous. Lowery v. Payne, 2023 Ark. 85, 665 S.W.3d 223. A decision is clearly
erroneous when, although there is evidence to support it, the appellate court, after reviewing
the entire evidence, is left with the definite and firm conviction that a mistake has been
made. Id.
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III. Discussion
Lee advances eight points on appeal: (1) the circuit court lacked jurisdiction over his
criminal case because the case was transferred from one division of Pulaski County Circuit
Court to another without an appropriate order; (2) Lee’s right to due process was violated
because the jury instructions for the crimes of committing a terroristic act and criminal
attempt to commit first degree battery were defective in failing to name a victim of the
crimes; (3) the State presented insufficient evidence at trial to support his conviction for
committing a terroristic act and his firearm-sentencing enhancement; (4) his felony
information was improperly amended prior to trial; (5) his judgment and commitment order
is invalid because he was not indicted by a grand jury; (6) his judgment is invalid because
his convictions and sentences were based on “misinformation that was untrue”; (7) there
has been a change in his transfer eligibility such that the ADC director now states that he is
no longer eligible for good-time credit which, Lee claims, violates his rights under the Sixth
Amendment; and (8) the jury was incorrectly instructed on the firearm enhancement. 1 The
State responds generally that the circuit court did not clearly err in dismissing Lee’s petition
because his claims all concern alleged trial errors or due-process violations that, even if true,
would not entitle him to relief. (More on the State’s response later.) We agree that the
circuit court’s dismissal of Lee’s petition was not clearly erroneous because none of his claims
were cognizable in this habeas proceeding.
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Lee appears to have abandoned several additional arguments that he made below but
did not pursue on appeal.
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A. Point 1 – Transfer Between Divisions
In his first point on appeal, Lee asserts that Pulaski County Circuit Court Judge Barry
Sims, who presided over his trial, lacked jurisdiction over the matter because the case was
transferred from a different division of Pulaski County Circuit Court without an appropriate
order. Therefore, Lee argues, his judgment and commitment order is void because the
sentencing court lacked jurisdiction. The supreme court rejected this same argument in
Lee’s Rule 37 appeal. Lee III, supra. There, the supreme court held that a “circuit judge
has the authority to preside over proceedings in any courtroom, in any county, within the
judicial district for which that judge was elected.” Id. at 7, 532 S.W.3d at 52 (citing Davis
v. Reed, 316 Ark. 575, 873 S.W.2d 524 (1994)). It further held that the “challenge Lee
would make concerning a transfer within the judicial district is not one that can be raised in
postconviction proceedings.” Id. (citing Renfro v. State, 264 Ark. 601, 573 S.W.2d 53
(1978) (holding that the issue is one of sentencing procedure that should be raised at the
time of sentencing, not for the first time in a postconviction petition)). We see no merit to
Lee’s repeated attempt to advance this illegal-division-transfer argument in this habeas
proceeding. The supreme court has already rejected it, and in any event, it is a claim of trial
error. Assertions of trial error and due-process claims do not implicate the facial validity of
the judgment or the jurisdiction of the trial court. Philyaw v. Kelley, 2015 Ark. 465, 477
S.W.3d 503. Because Lee’s first point on appeal fails to demonstrate either a lack of
jurisdiction on the part of the trial court or the facial invalidity of his judgment and
commitment order, we affirm the circuit court’s denial of relief as to this claim.
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B. Point 2 – Jury Instructions on Committing Terroristic Act and Criminal Attempt to
Commit First-Degree Battery
In his second point, Lee asserts that his judgment is invalid because the jury
instructions for the crimes of committing a terroristic act and criminal attempt to commit
first-degree battery were defective in failing to name a victim of the crimes. He argues that,
had the jury been properly charged and fully informed, the outcome of trial would have
been different. Lee’s assertions of defective jury instructions are allegations of trial error that
do not implicate the facial validity of the judgment or the jurisdiction of the trial court. See
Garrison v. Kelley, 2018 Ark. 8, 534 S.W.3d 136; Mackey v. Lockhart, 307 Ark. 321, 819
S.W.2d 702 (1991) (A habeas corpus proceeding does not afford a prisoner an opportunity
to retry his case, and a writ of habeas corpus will not be issued to correct errors or
irregularities that occurred at trial.). The remedy in such a case is a direct appeal. Garrison,
supra. Furthermore, even if the claim was cognizable, the supreme court has already
addressed it in its opinion in Lee’s Rule 37 appeal. Lee III, supra. There, Lee alleged
defective verdict forms because they failed name a victim on the counts of committing a
terroristic act and criminal attempt to commit first-degree battery. Id. In rejecting Lee’s
claim and holding that Lee failed to establish that any alleged error was fundamental error
sufficient to void the judgment, the supreme court held,
The jury was instructed that the offense of committing a terrorist act
occurred if the State proved that Lee, while not in the commission of a lawful
act and with the purpose of causing injury to another person or other persons
or damage to property, shot at an occupiable structure. That definition does
not require a victim to be identified. The instructions for attempted first-
degree battery identified “Robert Brown or another person” as the potential
victim.
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Id. at 8 n.3, 532 S.W.3d at 52 n.3. Thus, even if this was a cognizable habeas claim, which
it is not, the supreme court has clearly rejected the argument. Accordingly, we affirm the
circuit court’s rejection of this claim for habeas relief.
C. Points 3 and 6 – Sufficiency-of-the-Evidence Challenges
Lee’s third and sixth points on appeal amount to challenges to the sufficiency of the
evidence. In point three, Lee argues that he is being held unlawfully and in violation of his
right to due process because there was a lack of evidence on the terroristic-act charge, and
the dismissal of an additional charge for possession of firearms by certain persons somehow
rendered the evidence insufficient to support the firearm enhancement because every
element for that enhancement was not proven. In point six, Lee argues that the judgment
is invalid because his sentence was based on “misinformation that was untrue” because
“nobody was injured or shot” and that it was not true that he was “threatening to come
back in [and] kill everybody in the house.”
It is well settled that habeas proceedings are not a means to challenge the sufficiency
of the evidence to sustain a judgment. Hunt v. Payne, 2024 Ark. 126, 696 S.W.3d 806.
Lee’s challenges to the sufficiency of the evidence could have been raised in the trial court.
Id. In fact, Lee did challenge the sufficiency of the evidence in his direct appeal. He argued
the State failed to prove that he was the perpetrator and that he had the requisite intent for
the crimes for which he was charged. Lee I, supra. This court affirmed, holding that his
challenges were not preserved for appeal because his directed-verdict motions did not
inform the circuit court of the specific issues that he challenged on appeal. Id. Again, this
habeas proceeding does not afford Lee an opportunity to retry his case, and it is not a
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substitute for direct appeal or proceeding for postconviction relief. See Clayton v. Kelley,
2017 Ark. 2, 507 S.W.3d 494.
D. Point 4 – Amendment of Felony Information
In his fourth point on appeal, Lee argues that the prosecution impermissibly amended
the felony information against him twelve days after it was initially filed, which changed the
nature or degree of the crimes charged, and this somehow violated his rights to due process
and an impartial jury. The original criminal information in this case was filed 7 January
2010 charging Lee with eight counts of committing a terroristic act and one count of being
a felon in possession of a firearm. The amended criminal information was filed on 19 January
2010, and clearly stated at the top of the information that it changed the victim in counts 1
through 6, the classification codes in counts 2 through 6, deleted counts 7 and 8, and
changed count 9 to count 7. That amended felony information charged Lee with
committing a terroristic act, criminal attempt to commit first-degree battery, four counts of
aggravated assault, and possession of firearms by certain persons.
It is settled that “[t]he State is entitled to amend an information at any time prior to
the case being submitted to the jury as long as the amendment does not change the nature
or the degree of the offense charged or create unfair surprise.” Coston v. State, 2025 Ark.
143, at 4, 720 S.W.3d 241, 243 (citing Ark. Code Ann. § 16-85-407(b) (Repl. 2005)).
Further, “[e]ven where there is a change in the nature or degree of the offense, this court
will analyze whether there was adequate notice and whether the defendant was prejudiced.”
Id. Although Lee claims that the amended information changed the nature and degree of
the crimes charged, he does not develop any argument that he lacked adequate notice or
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suffered prejudice. First, it can hardly be said that Lee had a lack of notice, as the felony
information was amended almost two years before trial. Second, it is not readily apparent
that Lee asserted any objection to the amended information, asked for a continuance to
prepare a defense to the amended information, or otherwise challenged the amendment at
trial or on appeal. See, e.g., Burks v. Payne, 2024 Ark. 80, at 3, 687 S.W.3d 798, 801
(“Proceedings for the writ do not require an extensive review of the record of the trial
proceedings, and the circuit court’s inquiry into the validity of the judgment is limited to
the face of the commitment order.”). Moreover, to the extent that this is an allegation of
trial error, Lee does not show that the alleged error implicated the jurisdiction of the trial
court or rendered the judgment and commitment order invalid on its face sufficient to
prevail in a habeas petition. Philyaw, supra; see also Craig v. Hobbs, 2012 Ark. 218, at 2–3
(“Allegations of trial error concerning the information—such as improper amendment of
the information, lack of notice, and failure to include sufficient information to identify the
crime—are not the type of defect that raise a jurisdictional issue, and are not cognizable in
a proceeding for the writ.”). For all these reasons, we affirm the dismissal of this claim for
habeas relief.
E. Point 5 – Grand Jury
In his fifth point on appeal, Lee argues that his judgment and commitment order is
invalid because he was not indicted by a grand jury. Our supreme court has made clear,
however, that a defendant has no constitutional right to be indicted by a grand jury, and
amendment 21 to the Arkansas Constitution, which permits indictment by information, is
constitutional. Love v. Payne, 2025 Ark. 136. Accordingly, challenging an indictment by
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information rather than by grand jury is not a cognizable habeas claim. Gardner v. Payne,
2022 Ark. 38, 639 S.W.3d 336. This argument provides Lee with no basis for habeas relief,
and we affirm on this point.
F. Point 7 – Good-Time Credit
In his seventh point on appeal, Lee argues that there has been a change in his transfer
eligibility such that the ADC director now states that he is no longer eligible for good-time
credit, which, Lee claims, violates his rights under the Sixth Amendment to the United
States Constitution. Lee’s parole-eligibility claims are not cognizable in a habeas proceeding.
Watkins v. Kelley, 2018 Ark. 215, 549 S.W.3d 908. Habeas proceedings do not extend to
issues of parole eligibility and are limited to the questions of whether the petitioner is in
custody pursuant to a valid judgment of conviction or whether the convicting court had
proper jurisdiction. Id.; see also Garrison, supra. Parole eligibility falls clearly within the
domain of the executive branch––specifically, the ADC––as fixed by statute. Finney v.
Kelley, 2020 Ark. 145, 598 S.W.3d 26. A question regarding parole eligibility is not properly
raised in a habeas proceeding because it does not challenge the circuit court’s jurisdiction or
the facial invalidity of the judgment. Accordingly, his parole-eligibility argument provides
him with no basis for reversal of the circuit court’s order, and we affirm the circuit court’s
dismissal of this claim.
G. Point 8 – Firearm-Enhancement Jury Instruction
In his eighth point on appeal, as best we can tell, Lee argues that the jury was
incorrectly instructed on the firearm enhancement and that it should have been instructed,
in accordance with Ark. Code Ann. § 16-90-120, that application of that enhancement was
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discretionary, not mandatory. This appears to be a challenge to the jury instructions on the
firearm enhancement. Again, assertions of error concerning jury instructions are allegations
of trial error that are not cognizable in a habeas proceeding because they do not implicate
the facial validity of the judgment or the jurisdiction of the trial court. Garrison, supra. If
there were errors at trial, those issues could, and should, have been raised at trial and on the
record on direct appeal and are thus not within the purview of the remedy because the writ
will not be issued to correct errors or irregularities that occurred at trial. Stephenson v. Kelley,
2018 Ark. 143, 544 S.W.3d 44. Lee did not raise this argument on direct appeal or in his
Rule 37 appeal, and it is too late to raise it in this habeas corpus proceeding.
IV. Conclusion
For the reasons stated above, we affirm the circuit court’s order. One final word
regarding the State’s response brief is warranted. In response to Lee’s twenty-eight-page
argument covering eight points, the State submitted a three-paragraph conclusory response
stating that none of Lee’s briefed issues merit relief in a habeas proceeding. That may be so,
as this opinion explains, but we know from long experience that the State is more than
capable of providing this court with an appropriate effort. We trust the State will do better
in habeas cases going forward.
Affirmed.
BARRETT and BROWN, JJ., agree.
Terry Lee, pro se appellant.
Tim Griffin, Att’y Gen., by: Dalton Cook, Ass’t Att’y Gen., for appellee.
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