ROBERT R. HEFFERNAN a/k/a ROBERT RICHARD HEFFERNAN PETITIONER
STATE OF ARKANSAS RESPONDENT
SECOND PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT
TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [SALINE
COUNTY CIRCUIT COURT, NO. 63CR-80-41]
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.
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 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.
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 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
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).
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 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.
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
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
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]."
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.
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.