Gerald Lowery v. Dexter Payne, Director, Arkansas Division of Correction
CourtSupreme Court of Arkansas
Date FiledOctober 1, 2026
StatusPublished
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Full Opinion
Cite as 2026 Ark. 115
SUPREME COURT OF ARKANSAS
No. CV-25-629
Opinion Delivered: October 1, 2026
GERALD LOWERY
APPELLANT PRO SE APPEAL FROM THE LINCOLN
COUNTY CIRCUIT COURT; MOTION
V. FOR ORAL ARGUMENT AND
APPOINTMENT OF COUNSEL
[NO. 40CV-25-71]
DEXTER PAYNE, DIRECTOR,
ARKANSAS DIVISION OF HONORABLE JODI RAINES DENNIS,
CORRECTION JUDGE
APPELLEE
AFFIRMED; MOTION MOOT.
KAREN R. BAKER, Chief Justice
Appellant Gerald Lowery appeals from the denial and dismissal of his pro se petition
for writ of habeas corpus filed pursuant to Arkansas Code Annotated sections 16-112-101 to
-123 (Repl. 2016) in Lincoln County. Also pending is Lowery’s motion for appointment of
counsel and for oral argument. In his circuit court petition, Lowery alleged that he is entitled
to issuance of the writ because the statute of limitations barred prosecution for the crimes of
rape and second-degree sexual assault and the trial court lacked jurisdiction. Lowery further
alleged that the prosecutor in his criminal case had violated Brady v. Maryland, 373 U.S. 83
(1963), and led a witness to commit perjury. The circuit court denied and dismissed the
petition, finding that Lowery failed to demonstrate that he is being illegally detained. We
find no error and affirm, which renders Lowery’s motion for appointment of counsel and
oral argument moot.
A Miller County Circuit Court jury convicted Lowery of rape and second-degree
sexual assault of the minor victim, T.L., who was less than fourteen at the time. He was
sentenced to consecutive terms of life and 240 months in the Arkansas Division of
Correction. Lowery v. State, 2019 Ark. 332, 586 S.W.3d 644. We affirmed Lowery’s
conviction and sentence. Id.
We review the circuit court’s decision on a petition for writ of habeas corpus for clear
error. Muhammad v. Payne, 2024 Ark. 82, 687 S.W.3d 802. A decision is clearly erroneous
when, despite evidence to support it, the appellate court, after reviewing the entire evidence,
is left with the definite and firm conviction that there has been a mistake. Id.
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. Finney v. Kelley, 2020 Ark.
145, 598 S.W.3d 26. 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 circuit court has subject-matter jurisdiction to hear and determine cases
involving violations of criminal statutes and has personal jurisdiction over offenses
committed within the county over which it presides. Fuller/Akbar v. Payne, 2021 Ark. 155,
628 S.W.3d 366.
When the petitioner does not show that on the face of the commitment order there
was an illegal sentence imposed, the claim does not implicate the jurisdiction of the court to
hear the case, and the claim is not cognizable in habeas proceedings. Rea v. Kelley, 2019 Ark.
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339, 588 S.W.3d 715. A court considering a habeas action is not obligated to go beyond the
face of the commitment order to address the claims in the petition, and the petitioner bears
the burden of showing that the face of the judgment at issue was invalid. Rea v. Kelley, 2020
Ark. 347.
The statute of limitations in the Criminal Code is jurisdictional, unlike some of the
civil statutes of limitation that are waived unless pleaded. Hunter v. Payne, 2023 Ark. 79, 666
S.W.3d 76. The express wording of the limitations statute in the Criminal Code is a
mandatory prohibition on prosecution outside the limitations period, and the expiration of
the statute of limitations in a criminal case thus leaves a circuit court without jurisdiction to
try the case. Id. In a habeas petition, a claim that the offenses occurred outside the statute of
limitations is cognizable since a statute-of-limitations issue implicates jurisdiction to hear the
case and cannot be waived. Id.
I. Statute of Limitations
Lowery was convicted of raping and sexually assaulting T.L. in the fall of 2004 and
continued through the spring of 2005. Lowery, 2019 Ark. 332, 586 S.W.3d 644. The direct-
appeal record reveals that T.L. was born on January 10, 1998, and was between six and seven
when she was assaulted.1 T.L. turned eighteen in January 2016, and she reported the rape
and assault in 2017.
1
This court may take judicial notice of the direct-appeal record lodged following
conviction without need to supplement the record. Jones v. State, 2020 Ark. 338, 609 S.W.3d
375.
3
In 2004 and 2005, rape had a six-year limitations period, and sexual assault had a
three-year limitations period. See Ark. Code Ann. § 5-1-109(b)(1) & (2) (Supp. 2003).
However, according to section 5-1-109(h), if the victim was a minor at the time she was raped
and sexually assaulted, a prosecution may nevertheless be commenced if the limitations
period prescribed in section 5-1-109(b) has not expired since the victim has reached eighteen
years of age or if it has been reported to law enforcement. In other words, the limitations
period does not begin to run until a minor victim either turns eighteen or reports the crimes
to law enforcement.
Because T.L. did not turn eighteen until 2016 and did not report to law enforcement
until 2017, prosecution was not yet barred in 2011, when that statute of limitations was
extended to permit prosecution when the minor victim turned twenty-eight years old, if it
had not been previously reported to law enforcement. See Ark. Code Ann. § 5-1-109(a)(2)(A)
& (C) (Supp. 2011). Likewise, prosecution was not yet barred in 2013, when the statute was
amended again to allow the prosecution for rape and sexual assault committed against a
minor victim to be commenced at “any time.” See Ark. Code Ann. § 5-1-109(a)(1)(D) & (G)
(Repl. 2013). In view of the above, by the time T.L. turned eighteen, the limitations period
had been eliminated for the prosecution for rape and sexual assault. That was the law when
the initial information was filed on January 24, 2018. In sum, because the statutes of
limitation for Lowery’s rape and second degree-sexual assault never expired, the statute of
limitations did not bar prosecution, and the circuit court did not lack jurisdiction.
II. Brady Violation and Prosecutorial Misconduct
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Lowery claims prosecutorial misconduct and a Brady violation in connection with the
testimony of his daughter B.B. that Lowery had sexually assaulted her when she was a minor.
Lowery claims that false allegations made by B.B. and B.B.’s mother were manufactured by
the State and that the State withheld evidence that undermined B.B.’s credibility.
A claim of prosecutorial misconduct, including a claim that a prosecutor presented
false testimony and withheld evidence in violation of Brady, does not implicate the facial
validity of the judgment or the jurisdiction of the trial court, and such an allegation does not
support issuance of a writ of habeas corpus. McArthur v. State, 2019 Ark. 220, 577 S.W.3d
385.
In view of the above, the circuit court did not clearly err when it denied Lowery’s
petition for the writ.
Affirmed; motion moot.
Special Justices CORY COX and H.G. FOSTER join.
WOOD, J., concurs.
WEBB and BRONNI, JJ., not participating.
Gerald Lowery, pro se appellant.
Tim Griffin, Att’y Gen., by: Walker K. Hawkins, Ass’t Att’y Gen., for appellee.
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