Hooper v. State , 2015 Ark. 108 ( 2015 )

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    2015 Ark. 108
                       SUPREME COURT OF ARKANSAS
                                             No.   CR-05-1381
                                                         Opinion Delivered March   12, 2015
                                    PETITIONER           PRO SE SECOND PETITION TO
                                                         REINVEST JURISDICTION IN THE
    V.                                                   CIRCUIT COURT TO CONSIDER A
                                                         PETITION FOR WRIT OF ERROR
    STATE OF ARKANSAS                                    CORAM NOBIS [WASHINGTON
                                  RESPONDENT             COUNTY CIRCUIT COURT, NO. 72CR-
                                                         PETITION DENIED.
                                             PER CURIAM
           In 2005, petitioner Danny Lee Hooper was found guilty by a jury of three counts of rape,
    kidnapping, robbery, residential burglary, and third-degree battery and sentenced as a habitual
    offender to an aggregate sentence of 1,320 months’ imprisonment. The Arkansas Court of
    Appeals affirmed, noting that evidence was adduced at trial, which included the victim’s
    testimony and DNA testing, that petitioner had entered the victim’s house at night and engaged
    in vaginal and anal intercourse with her. Hooper v. State, CR-05-1381 (Ark. App. Aug. 30, 2006)
    (unpublished).    Subsequently, petitioner filed in the trial court a timely petition for
    postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2005). The petition
    was denied. Petitioner appealed from the order to this court, and we dismissed the appeal as it
    was clearly without merit. Hooper v. State, CR-07-816 (Ark. Nov. 29, 2007) (unpublished per
           In 2013, petitioner filed in this court a petition and an amended petition requesting that
    this court reinvest jurisdiction in the trial court so that he could proceed with a petition for writ
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    of error coram nobis. We denied the relief sought. Hooper v. State, 
    2014 Ark. 16
     (per curiam).
           On January 14, 2015, petitioner filed a second petition in this court to reinvest
    jurisdiction in the trial court to consider a petition for writ of error coram nobis. The second
    petition and a subsequent amendment to it are now before us. We find no basis stated in the
    petition to warrant issuance of the writ and thus deny leave to proceed in the trial court.
           A petition for leave to proceed in the trial court is necessary because the circuit court can
    entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal
    only after we grant permission. Chestang v. State, 
    2014 Ark. 477
     (per curiam); Charland v. State,
    2013 Ark. 452
     (per curiam); Cromeans v. State, 
    2013 Ark. 273
     (per curiam). This court will grant
    such permission only when it appears the proposed attack on the judgment is meritorious.
    Echols v. State, 
    354 Ark. 414
    , 418, 
    125 S.W.3d 153
    , 156 (2003). In making such a determination,
    we look to the reasonableness of the allegations of the petition and to the existence of the
    probability of the truth thereof. Id.
           A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial
    than its approval. Cromeans, 
    2013 Ark. 273
    ; Howard v. State, 
    2012 Ark. 177
    403 S.W.3d 38
    . The
    writ is allowed only under compelling circumstances to achieve justice and to address errors of
    the most fundamental nature. McDaniels v. State, 
    2012 Ark. 465
     (per curiam). We have held that
    a writ of error coram nobis is available to address certain errors that are found in one of four
    categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the
    prosecutor, or a third-party confession to the crime during the time between conviction and
    appeal. Charland, 
    2013 Ark. 452
    ; Cromeans, 
    2013 Ark. 273
    ; Pitts v. State, 
    336 Ark. 580
    986 S.W.2d 2
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    407 (1999) (per curiam). The function of the writ is to secure relief from a judgment rendered
    while there existed some fact that would have prevented its rendition if it had been known to
    the circuit court and which, through no negligence or fault of the defendant, was not brought
    forward before rendition of judgment. Mooney v. State, 
    2014 Ark. 453
    447 S.W.3d 121
    curiam); Cloird v. State, 
    2011 Ark. 303
     (per curiam). The petitioner has the burden of
    demonstrating a fundamental error of fact extrinsic to the record. Williams v. State, 
    2011 Ark. 541
     (per curiam). Coram-nobis proceedings are attended by a strong presumption that the
    judgment of conviction is valid. Roberts v. State, 
    2013 Ark. 56
    425 S.W.3d 771
    ; Carter v. State,
    2012 Ark. 186
     (per curiam); Penn v. State, 
    282 Ark. 571
    670 S.W.2d 426
     (1984) (citing Troglin v.
    257 Ark. 644
    519 S.W.2d 740
           As he did in his original petition to this court, petitioner argues as grounds for the writ
    that he was incompetent at the time of trial and was denied his right to present an insanity
    defense by his attorney’s ineffectiveness and the failure of the State and others to reveal certain
    medical reports. Petitioner attributes his impaired intellectual functioning to a gunshot wound
    to the head that he suffered some years before trial and an accident on an all-terrain motor
    vehicle. He alleges that he now has newly discovered evidence to support his claims for the writ
    that is contained in those newly acquired medical records pertaining to the effects of the injuries,
    particularly the gunshot injury. He contends that the psychiatrist, Dr. Robin Ross, who
    conducted a pretrial examination on him, had some medical records when she made her
    diagnosis but that she ignored the records he has now obtained and that Dr. Ross failed to
    secure them. Petitioner avers that the recently obtained medical records from the prior
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    examinations and prior psychological testing demonstrate that Dr. Ross’s conclusion that he was
    competent was wrong. He urges this court to accept this newly discovered evidence as proof
    that a viable insanity defense could have been raised at trial if Dr. Ross and the prosecuting
    attorney at his trial had not wrongfully withheld the evidence in violation of Brady v. Maryland,
    373 U.S. 83
     (1963). Petitioner further faults his attorney for not obtaining the evidence and
    mounting a successful insanity defense.
           We first note that, to the extent that the claims raised were intended by petitioner to be
    allegations of ineffective assistance of counsel, such allegations are not cognizable in a coram-
    nobis proceeding. Mackey v. State, 
    2014 Ark. 491
     (per curiam). Assertions of inadequate counsel
    are properly brought pursuant to Rule 37.1. Schrader v. State, 
    2014 Ark. 379
    441 S.W.3d 1
    curiam). We have consistently held that a petition for writ of error coram nobis is not a
    substitute for raising claims of ineffective assistance of counsel under Rule 37.1. Mackey, 
    2014 Ark. 491
    ; Mason v. State, 
    2014 Ark. 288
    436 S.W.3d 469
     (per curiam).
           Prior to trial, petitioner was examined by Dr. Ross pursuant to a motion filed by the
    defense. Dr. Ross diagnosed him with drug and alcohol dependency and an antisocial
    personality disorder, and she concluded that petitioner did not have a mental disease or defect
    when he committed the crimes, did not lack the capacity to appreciate the criminality of his
    conduct, and did not lack the capacity to conform his conduct to the requirements of the law.
    The gunshot injury to petitioner’s head was discussed at a pretrial hearing, but, at that time, the
    trial court declined to grant a continuance to allow petitioner to obtain the records to be
    submitted to the doctor.
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           This court held when the first coram-nobis petition was denied that petitioner had
    presented nothing in his petition to establish that there would have been a different outcome at
    trial if the doctor had the medical records inasmuch as the doctor determined that petitioner was
    competent at the time of the offense and at the time of trial. We further noted that petitioner
    had not shown that any particular information in the medical report would have caused the
    doctor to reach a different assessment. While insanity at the time of trial is a ground for the writ,
    the burden is on the petitioner who claims a history of mental defect or illness to overcome the
    strong presumption that the judgment was valid. Accordingly, we held when the original coram-
    nobis petition was denied that the mere fact that petitioner may have had a head injury or
    injuries before Dr. Ross examined him was not, in itself, sufficient cause to warrant issuance of
    the writ.
           In this second petition to reinvest jurisdiction to consider a petition for writ of error
    coram nobis, petitioner reiterates the claims raised in the first petition. The sole difference in
    the instant petition is that petitioner states that he has obtained the medical records that were
    not available to him at the time of trial.
           Having reviewed the second petition, we again do not find grounds for the writ. With
    respect to whether there was a violation of Brady, failure to disclose evidence favorable to the
    defense is a Brady violation, and such a violation falls within one of the four categories of coram-
    nobis relief. Mooney, 
    2014 Ark. 453
    447 S.W.3d 121
     (citing Bannister v. State, 
    2014 Ark. 59
    curiam)). The United States Supreme Court held in Brady that “the suppression by the
    prosecution of evidence favorable to an accused upon request violates due process where the
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    evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the
    prosecution.” Brady, 373 U.S. at 87. In Strickler v. Greene, 
    527 U.S. 263
     (1999), the Court
    revisited Brady and declared that evidence is material “if there is a reasonable probability that,
    had the evidence been disclosed to the defense, the result of the proceeding would have been
    different.” 527 U.S. at 280 (quoting United States v. Bagley, 
    473 U.S. 667
    , 682 (1985)). There are
    three elements of a Brady violation: (1) the evidence at issue must be favorable to the accused,
    either because it is exculpatory or because it is impeaching; (2) the evidence must have been
    suppressed by the State, either willfully or inadvertently; (3) prejudice must have ensued.
    527 U.S. 263
    ; Watts v. State, 
    2013 Ark. 485
     (per curiam).
           Here, there is nothing to demonstrate that the information concerning the medical
    reports at issue was withheld from the defense. Appellant clearly knew at the time of trial that
    the examinations had occurred, and he provides no factual support for the claim that the medical
    reports resulting from those examinations were somehow withheld. When there is no showing
    that the State withheld favorable information from the defense, there is no violation of Brady.
    See Mooney, 
    2014 Ark. 453
    447 S.W.3d 121
           As to whether the reports constitute newly discovered evidence that forms a basis for
    granting the writ, an assertion that there is newly discovered evidence alone is not a basis for
    coram-nobis relief. Webb v. State, 
    2009 Ark. 550
     (citing McArty v. State, 
    335 Ark. 445
    983 S.W.2d 418
     (1998) (per curiam)). There is a distinction between fundamental error, which
    requires issuance of the writ, and newly discovered information, which might have created an
    issue to be raised at trial had it been known. Mosley v. State, 
    333 Ark. 273
    968 S.W.2d 612
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    (per curiam). Even if, as petitioner alleges, the medical reports might have provided information
    to Dr. Ross and to the defense concerning his prior injuries and the findings of other medical
    professionals concerning his mental state in the past, the fact remains that Dr. Ross found in her
    pretrial examination that petitioner was competent. Moreover, petitioner has not offered facts
    to show that entry of the judgment would have been precluded if Dr. Ross, his attorney, the
    prosecutor, or any other party had possessed the medical records prior to trial. See Scott v. State,
    2010 Ark. 363
     (per curiam) (holding that information within petitioner’s knowledge and available
    at the time of trial was not a ground for the writ inasmuch as it could have been utilized at trial
    and, in any event, there was no showing that the information would have precluded entry of the
    judgment had it been utilized at trial).
           Petitioner has not established that the information contained in the medical reports that
    he contends is newly discovered exculpatory evidence is of such a fundamental nature that it can
    be said that there is a reasonable probability that the judgment would not have been rendered
    had the information contained in the reports been brought out at trial because it would have
    overcome the finding of Dr. Ross that petitioner was competent or that it could have been the
    basis for a successful insanity defense. Petitioner has not shown that there was any information
    extrinsic to the record that, even if it had been utilized at the time of trial, would somehow have
    created an issue sufficient to call into question the outcome of the trial. For that reason,
    petitioner has fallen short of establishing a ground to issue a writ of error coram nobis. See
    Thompson v. State, 
    2012 Ark. 339
     (per curiam).
           Petition denied.
           Danny Lee Hooper, pro se petitioner.
           Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for respondent.