PULASKI COUNTY CIRCUIT COURT, NO. 60CR-92-3131.
PRO SE THIRD PETITION TO REINVEST JURISDICTION IN THE
TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM
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).
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 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.
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.
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, 83 S.Ct.
1194, 10 L.Ed.2d 215 (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).
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.
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).
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 ...