Swanigan v. State , 485 S.W.3d 695 ( 2016 )

Cite as 2016 Ark. 109
SUPREME COURT OF ARKANSAS.
No. CR-93-1127
Opinion Delivered March 10, 2016
TERRY SWANIGAN
PETITIONER
PRO SE THIRD PETITION TO REINVEST
V. JURISDICTION IN THE TRIAL COURT
TO CONSIDER A PETITION FOR WRIT
STATE OF ARKANSAS OF ERROR CORAM NOBIS
[PULASKI COUNTY CIRCUIT COURT,
RESPONDENT NO. 60CR-92-3131]
PETITION DISMISSED.
PER CURIAM
Petitioner Terry Swanigan was charged with capital murder in the 1992 shooting
death of Lewis Allen. The evidence at trial reflected that Swanigan had confronted Allen
inside a shop and pointed a gun at Allen’s face. Swanigan and Allen struggled for possession
of the gun, Allen fell backwards during the struggle, and Swanigan fired the gun three times.
One of the shots struck Allen, who ran outside, collapsed, and later died. In 1993, Swanigan
was tried before a jury and found guilty of murder in the first degree. He was sentenced to
life imprisonment. We affirmed. Swanigan v. State, 316 Ark. 16, 870 S.W.2d 712 (1994).
In 2002, Swanigan filed in this court a pro se petition to reinvest jurisdiction in the
trial court to consider a petition for writ of error coram nobis. The petition for leave to
proceed in the trial court is necessary because the trial court can entertain a petition for writ
of error coram nobis after a judgment has been affirmed on appeal only after we grant
permission. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis
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is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000).
Coram-nobis proceedings are attended by a strong presumption that the judgment of
conviction is valid. Id. The function of the writ is to secure relief from a judgment rendered
while there existed some fact that would have prevented its rendition had it been known to
the trial court and which, through no negligence or fault of the defendant, was not brought
forward before rendition of the judgment. Newman, 2009 Ark. 539, 354 S.W.3d 61. The
petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the
record. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.
The writ is allowed only under compelling circumstances to achieve justice and to
address errors of the most fundamental nature. Id. A writ of error coram nobis is available
for addressing certain errors that are found in one of four categories: (1) insanity at the time
of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a
third-party confession to the crime during the time between conviction and appeal. Howard
v. State, 2012 Ark. 177, 403 S.W.3d 38.
We denied Swanigan’s petition because it did not establish a ground for the writ.
Swanigan v. State, CR-93-1127 (Ark. Sept. 12, 2002) (unpublished per curiam). In 2015,
Swanigan filed a second coram-nobis petition here. In the petition, he alleged that a writ of
error coram nobis should be issued on the grounds that the prosecution in his case violated
Brady v. Maryland, 373 U.S. 83 (1963), and because the State used “false testimony” to
obtain the conviction. The second petition was also denied. Swanigan v. State, 2015 Ark.
371 (per curiam).
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On February 9, 2016, Swanigan filed a third coram-nobis petition, which is now
before us. In the petition, Swanigan reiterates the claims raised in the second petition that
this court denied in 2015.
We find that the instant petition is an abuse of the writ because Swanigan has already
raised essentially the same claims in his second petition; accordingly this third petition is
subject to dismissal on that basis. Grant v. State, 2015 Ark. 323, at 5–6, 469 S.W.3d 356,
360 (per curiam); see also Jackson v. State, 2009 Ark. 572 (per curiam). Swanigan does not
allege that he has obtained any new information concerning the allegations since he filed his
second coram-nobis petition, and he offers no explanation for his failure to raise any claim
he desired to raise concerning the allegations in the second petition. Because Swanigan has
alleged no fact sufficient to distinguish his claims in the instant petition from the claims in
the second petition, his reassertion of largely the same claims is a misuse of the remedy. See
Jackson, 2009 Ark. 572; see also United States v. Camacho–Bordes, 94 F.3d 1168 (8th Cir. 1996)
(res judicata did not apply to bar a second petition for writ of error coram nobis, but abuse-
of-writ doctrine was applied to subsume res judicata).
In Rodgers v. State, 2013 Ark. 294 (per curiam), we noted that a court has the
discretion to determine whether the renewal of a petitioner’s application for the writ, when
there are additional facts presented in support of the same grounds, will be permitted. As
stated, there are no additional facts to distinguish this latest petition from the second petition
filed by Swanigan. Swanigan has raised no cognizable ground for the writ in any of his
three petitions. More importantly, he has reiterated in this latest petition claims already
addressed by this court. Due process does not require this court to entertain an unlimited
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number of petitions to reinvest jurisdiction in the trial court to consider a petition for writ
of error coram nobis in a particular case. Grant, 2015 Ark. 323, at 5–6, 469 S.W.3d 356,
360.
Petition dismissed.
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