SECOND PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT
TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS AND TO
PROCEED IN FORMA PAUPERIS [PULASKI COUNTY CIRCUIT COURT, NO.
found petitioner Greg Hogue guilty of capital murder in the
death of Jess Brown for which he was sentenced to life
imprisonment without parole. This court affirmed the
judgment. Hogue v. State, 323 Ark. 515, 915 S.W.2d
276 (1996). On January 19, 2017, Hogue filed his second
petition requesting this court to reinvest jurisdiction in
the trial court to consider a petition for writ of error
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 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 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.
seeks leave to proceed in the trial court for a writ of error
coram nobis for a second time, contending the State committed
prosecutorial misconduct by failing to disclose an intimate
relationship between the prosecutor and the circuit
judge. Specifically, he contends that the failure
of the prosecutor and the circuit judge to disclose the
"exculpatory evidence" of their relationship
violated his constitutional rights and that the outcome of
the trial would have been different because the circuit judge
favored the prosecutor during the entire trial court
proceedings by denying multiple defense motions and
objections; the circuit judge allowed extra preemptory
strikes in favor of the prosecution; and the defense could
have filed a motion to have the circuit judge recuse himself
from the case. Hogue also argues that the State committed
prosecutorial misconduct by failing to disclose that the
prosecutor was in an intimate relationship with the circuit
judge when Hogue filed his Rule 37.1 petition.
Brady violation is established when material
evidence favorable to the defense is wrongfully withheld by
the State. Pitts v. State, 336 Ark. 580, 986 S.W.2d
407 (1999) (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 different."
Strickler, 527 U.S. at 280 (quoting United
States v. Bagley, 473 U.S. 667, 682 (1985)).
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.
claims are conclusory in nature and fail to establish that
there was error. Noble v. State, 2016 Ark. 463, 505
S.W.3d 687 (per curiam). In order to carry his burden to show
that the writ is warranted, a petitioner must demonstrate
that the State had specific evidence that would have been
sufficient to prevent rendition of the judgment. Id.
Hogue contends that the prosecutor and the circuit judge were
in an intimate relationship during the time of his trial yet
he fails to demonstrate how that relationship even qualifies
as evidence and, if considered as evidence, whether that
evidence is material, much less, exculpatory. Moreover, the
court is not required to accept at face value the allegations
of the petition. Chatmon v. State, 2015 Ark. 417, at
2, 473 S.W.3d 542, 544 (per curiam). Hogue's allegations
are conclusory, and he offers no factual substantiation that
any specific, particular evidence was hidden from the defense
at the time of trial, nor does he identify any specific
motions or rulings that favored the prosecution or a specific
extra preemptory strike and how the outcome of the trial
would have been different had any particular evidence been
disclosed. Evans v. State, 2016 Ark. 377, at 5, 501
S.W.3d 819, 822-23 (per curiam). Hogue fails to establish a
Brady violation or to point to any prejudice that
may have ensued, which would warrant granting the petition.
fails to raise a claim that falls within the purview of a
coram nobis proceeding because the error he claims is not an
error found in one of the four above-referenced categories of
error, i.e., insanity at the time of trial, a coerced guilty
plea, material evidence withheld by the prosecutor, or a
third-party confession. Howard, 2012 Ark. 177, 403
S.W.3d 38. None of the claims raised by Hogue demonstrate
that there was some fundamental error at trial or that there
existed some fact that would have prevented rendition of the
judgment if it had been known to the trial court and which,
through no negligence or fault of his own, was not brought
forward before rendition of judgment. Newman, 2009 Ark.
539, 354 S.W.3d 61.
Josephine Linker Hart, Justice, dissenting.
respectfully dissent from this court's denial of Greg
Hogue's petition for writ of error coram nobis. Hogue
contends that the deputy prosecutor who prosecuted him and
the circuit judge who presided over his trial were in an
intimate relationship during the time of his trial. Contrary
to the majority's conclusion, Hogue has raised not only a
claim of prosecutorial misconduct but also a claim of
judicial bias, which we have recently held falls within the
purview of an error coram nobis proceeding. McArthur v.
State, 2017 Ark. 120 (per curiam). By engaging in a
narrow, cramped reading of Hogue's petition, the court
essentially treats two judicial bias claims differently, even
though both were raised in error coram nobis proceedings.
Moreover, Hogue's claim that he was tried by a circuit
judge who was in an intimate relationship with the deputy
prosecutor is a claim of actual bias, which is a fundamental
error.Chatmon v. State, 2015 Ark. 417,