Heffernan v. State , 519 S.W.3d 311 ( 2017 )

Cite as 2017 Ark. 177
SUPREME COURT OF ARKANSAS.
No. CR-81-82
Opinion Delivered May 11, 2017
ROBERT R. HEFFERNAN a/k/a
ROBERT RICHARD HEFFERNAN
PRO SE SECOND PETITION TO
PETITIONER REINVEST JURISDICTION IN THE
TRIAL COURT TO CONSIDER A
V. PETITION FOR WRIT OF ERROR
CORAM NOBIS
STATE OF ARKANSAS [SALINE COUNTY CIRCUIT COURT,
NO. 63CR-80-41]
RESPONDENT
PETITION DENIED.
PER CURIAM
Petitioner Robert R. Heffernan, also known as Robert Richard Heffernan, was
convicted by a jury of capital felony murder and sentenced to life imprisonment without
parole in the Arkansas Department of Correction. This court affirmed. Heffernan v. State,
278 Ark. 325, 645 S.W.2d 666 (1983). Now before this court is Heffernan’s pro se second
petition to reinvest jurisdiction in the trial court to consider a petition for writ of error
coram nobis.1
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. Pinder v. State, 2015 Ark. 423, 474 S.W.3d 490 (per
curiam). A writ of error coram nobis is an extraordinarily rare remedy. Id. at 2–3, 474
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For clerical purposes, the instant pleading was assigned the same docket number as
the direct appeal of the judgment.
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S.W.3d at 492. 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 if
it had 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. Id. The petitioner
has the burden of demonstrating a fundamental error of fact extrinsic to the record. Id. 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. Id.; Howard v.
State, 2012 Ark. 177, at 4, 403 S.W.3d 38, 43.
When a petitioner files successive applications for coram nobis relief in this court, it
is an abuse of the writ to argue the same claims that have been addressed if the petitioner
does not allege new facts that are sufficient to distinguish his latest claims from the prior
claims. Wallace v. State, 2016 Ark. 400, at 10–11, 503 S.W.3d 754, 760 (per curiam). In
Heffernan’s first application for coram nobis relief, he claimed he was insane and
incompetent at all stages of his trial and was taking psychotropic medications; thus, he could
not possess any rational understanding of the proceedings against him and was unable to
assist his attorneys in his defense. Heffernan v. State, CR-81-82 (Ark. Feb. 22, 2007)
(unpublished per curiam). Here, Heffernan raises a wholly new claim based on the holding
in Brady v. Maryland, 373 U.S. 83 (1963), which prohibited the prosecution from
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withholding material exculpatory evidence from the defense. Heffernan contends he is
entitled to coram nobis relief because the prosecutor withheld a confession made by the
codefendant, Michael Breault, that he killed the victim. The confession was in a letter dated
November 10, 1980, and referenced in a supplemental motion for discovery and
continuance filed on April 27, 1981. It was also in an affidavit by defense counsel regarding
Breault’s psychiatric report in which Breault allegedly made an additional admission to
killing the victim.
While allegations of a Brady violation fall within one of the four categories of
fundamental error that this court has recognized in coram nobis proceedings, the fact that a
petitioner alleges a Brady violation alone is not sufficient to provide a basis for error coram
nobis relief. Davis v. State, 2016 Ark. 296, at 3, 498 S.W.3d 279, 281 (per curiam).
Furthermore, to merit relief on a claim of a Brady violation, a petitioner must demonstrate
that there is a reasonable probability that the judgment of conviction would not have been
rendered, or would have been prevented, had the information been disclosed at trial. Noble
v. State, 2014 Ark. 332, at 4, 439 S.W.3d 47, 50 (per curiam).
A Brady violation is established when material evidence favorable to the defense is
wrongfully withheld by the State. Ventress v. State, 2015 Ark. 181, 461 S.W.3d 313 (per
curiam). In Strickler v. Greene, 527 U.S. 263 (1999), the Supreme Court revisited Brady and
declared that when the petitioner contends that material evidence was not disclosed to the
defense, the petitioner must show that “there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
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different.” Strickler, 527 U.S. at 280 (quoting United States v. Bagley, 473 U.S. 667, 682
(1985)).
In Strickler, the Court also set out the three elements of a true 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; and (3) prejudice must have ensued. Strickler, 527 U.S. 263; see
Howard, 2012 Ark. 177, 403 S.W.3d 38.
Before addressing the merits of Heffernan’s claims for relief, a recitation of the
evidence adduced at his trial is necessary. The State introduced evidence that on February
3, 1980, the victim, a fourteen-year-old girl, was abducted from a laundromat in Benton,
Arkansas, and then raped and shot four times. Heffernan, 278 Ark. at 326, 645 S.W.2d at
666. The victim’s body was discovered the next day near Benton. Heffernan, along with
Breault and two women, camped at a park near Benton from February 2 to February 5, and
a .357 Magnum, owned by Heffernan, was retrieved from a lake. Ballistics later
demonstrated that this gun was the weapon from which the fatal bullets had been fired.
Glitter and hair were found on pants in the truck driven by Heffernan and Breault that
matched glitter and hair found on the clothing of the victim. Heffernan and Breault were
arrested in Colorado.
To warrant coram nobis relief, the defendant must have been unaware of the fact
alleged to have been unknown to the trial court at the time of trial, and he could not have
discovered the fact with the exercise of due diligence. Stenhouse v. State, 2016 Ark. 295, at
7–8, 497 S.W.3d 679, 684 (per curiam). Moreover, the court is not required to accept at
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face value the allegations of the petition. Chatmon v. State, 2015 Ark. 417, at 2, 473 S.W.3d
542, 544 (per curiam). Heffernan fails to establish a Brady violation because he alleges
evidence was withheld by the prosecutor at the time of trial; however, Heffernan’s own
petition makes reference to the fact that the November 10, 1980 letter “was never given”
to his counsel but then alleges that “how they got a copy of this letter . . . is unknown[]”
and that his counsel was aware “that Breault’s confession did exculpate petitioner, and said,
he did kill [the victim].”
Even if the letter had been exculpatory, the issue of the discovery of the November
10, 1980 letter was addressed on direct appeal. See Heffernan, 278 Ark. at 328–29, 645
S.W.2d at 667–68. Heffernan argued that the State, in violation of a request for discovery,
did not furnish the defense with a copy of the letter. The State argued that its entire file,
including the letter, had been made available to the defense in compliance with the
discovery request, and Heffernan’s counsel acknowledged as much. In fact, Heffernan’s
counsel filed a petition for writ of prohibition in this court on April 27, 1981, the date of
trial, and attached a copy of the November 10, 1980 letter, which “verifies the statement
that [defense counsel] had discovered the letter in his files prior to trial.” Heffernan, 278
Ark. at 328, 645 S.W.2d at 668. Heffernan fails to point to any evidence that was withheld
by the State that was unknown to the defense or that any prejudice ensued. See Anderson v.
State, 2017 Ark. 44, at 6, 510 S.W.3d 755 (per curiam). Because the petition does not
demonstrate a fundamental error of fact extrinsic to the record, the allegations advanced by
Heffernan do not warrant reinvesting jurisdiction in the trial court to consider a coram nobis
petition. Id.
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In addition, Heffernan has failed to exercise due diligence in bringing this coram
nobis petition. We have consistently held that due diligence is required in making
application for coram nobis relief, and in the absence of a valid excuse for delay, the petition
can be denied on that basis alone. Ratchford v. State, 2015 Ark. 309, 468 S.W.3d 274 (per
curiam). This court will itself examine the diligence requirement and deny a petition where
it is evident that a petitioner failed to proceed diligently. Roberts v. State, 2013 Ark. 56, at
12, 425 S.W.3d 771, 778. Due diligence requires that (1) the defendant be unaware of the
fact at the time of trial; (2) the defendant could not have, in the exercise of due diligence,
presented the fact at trial; and (3) upon discovering the fact, the defendant did not delay
bringing the petition. Grant v. State, 2016 Ark. 82, at 6, 484 S.W.3d 272, 276 (per curiam).
The judgment in Heffernan’s case was affirmed in 1983; yet, he did not bring his petition
for more than thirty-four years, and he has not shown in his petition that he exercised due
diligence in raising his claims for coram nobis relief.
Petition denied.
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