PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO
CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [BENTON
COUNTY CIRCUIT COURT, NO. 04CR-07-1642]
2009, petitioner Danny Henington was found guilty by a jury
of the rape of a child and was sentenced to 432 months'
imprisonment. The Arkansas Court of Appeals affirmed.
Henington v. State, 2010 Ark.App. 619, 378 S.W.3d
subsequently filed in the trial court a petition for
postconviction relief pursuant to Arkansas Rule of Criminal
Procedure 37.1 (2016) that was denied. We affirmed the order.
Henington v. State, 2012 Ark. 181, 403 S.W.3d 55.
December 20, 2016, Henington 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 in the
case. 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. Green v. State,
2016 Ark. 386, 502 S.W.3d 524; Westerman v. State,
2015 Ark. 69, at 4, 456 S.W.3d 374, 376; Roberts v.
State, 2013 Ark. 56, 425 S.W.3d 771. 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. 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, 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.
grounds for issuance of the writ, Henington contends that he
was denied effective assistance of counsel at his trial and
that the trial court erred by failing to "bring
forward" certain evidence and by admitting into the
record evidence that was inadmissible. The assertions do not
establish a ground for the writ.
court has repeatedly held that
ineffective-assistance-of-counsel and trial-error claims are
not grounds for the writ. Green v. State, 2016 Ark.
386, 502 S.W.3d 524; White v. State, 2015 Ark. 151,
460 S.W.3d 285. Claims of ineffective assistance of counsel
are properly raised in a timely petition for postconviction
relief pursuant to Arkansas Rule of Criminal Procedure 37.1
(2016). Mason v. State, 2014 Ark. 288, 436 S.W.3d
469 (per curiam). A petition for writ of error coram nobis is
not a substitute for raising an issue under Rule 37.1.
Travis v. State, 2014 Ark. 82 (per curiam).
the allegations of trial error, by its very nature, an issue
concerning a trial court's ruling could have been settled
in the trial court and on the record on direct appeal.
Accordingly, the allegation that the trial court made some
mistake in its rulings, including rulings concerning the
admissibility of evidence, is not within the purview of a
coram nobis proceeding. Mason, 2014 Ark. 288, 436
S.W.3d 469. Also, some of the arguments of trial error raised
in this petition were raised on direct appeal. A coram nobis
proceeding is not a forum for the petitioner to relitigate
appeal issues. Ventress v. State, 2015 Ark. 181, 461
S.W.3d 313 (per curiam); see also Watts v. State,
2013 Ark. 485 (per curiam) (This court does not consider in a
coram nobis action allegations that are an attempt to reargue
issues addressed on appeal.).
next contends that there was prosecutorial misconduct in his
trial because the State failed to bring forth the
documentation that would have shown Henington to be not
guilty. Henington's claims do not establish the existence
of some fact extrinsic to the record that was concealed from
the defense by the State. The petitioner seeking to reinvest
jurisdiction in the trial court to proceed with a coram nobis
petition bears the burden of presenting facts to support the
claims for the writ because an application for the writ must
make a full disclosure of specific facts relied on and not
merely state conclusions as to the nature of such facts.
Howard, 2012 Ark. 177, 403 S.W.3d 38; see also
Cloird v. State, 357 Ark. 446, 182 S.W.3d (2004).
Henington's assertions of prosecutorial misconduct are
the type that could have been raised at trial; therefore, he
has not asserted a ground for the writ. See Chatmon v.
State, 2015 Ark. 417, 473 S.W.3d 542 (per curiam).
further argues that the evidence adduced at his trial was not
sufficient to sustain the jury's verdict and that there
was evidence that could have been adduced at trial to prove
his innocence if trial counsel and the trial court had
permitted the available evidence to be presented to the jury.
Such arguments constitute a challenge to the sufficiency of
the evidence. We have held that issues concerning the
sufficiency of the evidence are not cognizable in coram nobis
proceedings because the question of the sufficiency of the
evidence is to be settled at trial and on the record on
direct appeal. Philyaw v. State, 2014 Ark. 130 (per
degree that it could be said that Henington is claiming that
the trial court was biased, to state a ground for the writ on
the basis of judicial bias, a petitioner must show that there
was a reasonable probability that he would not have been
convicted if an unbiased judge had served, and an allegation
of the mere appearance of impropriety is not sufficient.
Chatmon v. State, 2015 Ark. 417, at 3, 473 S.W.3d
542, 545 (per curiam). A petitioner does not make the
necessary showing of fundamental error to support relief
where there is no demonstration of actual bias. Id.
Henington's allegations are founded on whether Henington
agreed with the trial court's rulings rather than a
showing of actual bias. See Trimble v. State, 316