PETITION TO REINVEST JURISDICTION IN THE CIRCUIT COURT TO
CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [POPE
COUNTY CIRCUIT COURT, NO. 58CR-94-214]
R. BAKER, Associate Justice.
Jimmy Don Wooten was convicted of capital murder, criminal
attempt to commit capital murder, and aggravated assault.
Wooten was sentenced to death on the capital-murder charge,
thirty years' imprisonment on the attempt-to
commit-capital-murder charge, and six years' imprisonment
on the aggravated-assault charge. His convictions and
sentences were affirmed on appeal. Wooten v. State,
325 Ark. 510, 931 S.W.2d 408 (1996). After a motion to recall
the mandate was granted by this court permitting Wooten to
seek postconviction relief pursuant to Rule 37, Wooten now
serves a term of life imprisonment without parole on the
capital-murder charge. See Wooten v. State, 2010
Ark. 467, 370 S.W.3d 475, overruled by Ward v.
State, 2015 Ark. 62, 455 S.W.3d 830. Wooten now brings
this pro se petition to reinvest jurisdiction in the circuit
court to consider a petition for writ of error coram nobis in
which he contends that he suffers significant mental disease
and defect and trial counsel's ineffective performance
litigating this issue led to Wooten's capital-murder
conviction. Because Wooten has neither demonstrated in the
petition that the writ should issue nor been diligent in
raising his claims, the petition is denied.
circuit court cannot entertain a petition for writ of error
coram nobis after a judgment has been affirmed on appeal
unless this court grants permission. Carner v.
State, 2018 Ark. 20, 535 S.W.3d 634 (citing 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. 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 circuit court and that, through no
negligence or fault of the defendant, was not brought forward
before rendition of the judgment. Carner, 2018 Ark.
20, 535 S.W.3d 634. 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
writ is allowed 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. A court is not
required to accept the allegations in a petition for writ of
error coram nobis at face value. Jackson v. State,
2017 Ark. 195, 520 S.W.3d 242.
argues that he suffers from a mental disease and defect and
that this fact was "unknown and hidden at trial due to
incompetent and ineffective assistance of counsel, " and
that had it been brought forward, he would not have been
subjected to a sentence of life imprisonment without the
possibility of parole. This court has repeatedly held that
ineffective-assistance-of-counsel claims are not grounds for
the writ. Green, 2016 Ark. 386, 502 S.W.3d 524.
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 (2017).
Smith v. State, 2018 Ark. 37. A petition for error
coram nobis is not a substitute for raising an issue under
Rule 37.1. Id. Wooten has failed to demonstrate the
writ should issue.
while there is no specific time limit for seeking a petition
for writ of error coram nobis, due diligence is required in
filing a petition for relief, and in the absence of a valid
excuse for delay, the petition will be denied.
Roberts, 2013 Ark. 56, 425 S.W.3d 771. 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. Id.
first raised the claim he raises now of mental disease and
defect, which he claims was confirmed by a psychiatric
evaluation on September 27, 2006, by Dr. Robert A. Fox, Jr.,
in a motion to recall the mandate that was tendered to this
court in March 2007. See Wooten, 2010 Ark. 467, 370
S.W.3d 475 (Brown, J., concurring) (Wooten's core
argument is that because of his defective counsel at this
Rule 37 hearing in 1997 and on appeal, he has never been able
to show either the circuit court or this court how his trial
counsel was ineffective in his failure to present mental
illness and familial abuse as mitigation evidence at the
sentencing phase.). At the very least, Wooten discovered the
fact of his mental disease and defect in 2006 but did not
raise the claim for coram nobis relief for an additional
twelve years, which can hardly be said to be without delay.
Wooten was granted his motion to recall mandate to pursue
postconviction relief pursuant to Rule 37 in 2010, and since
that time, he has taken no action to seek coram nobis relief
for his alleged claim of mental disease and defect. Because
Wooten fails to give a valid excuse for the delay in raising
the claim, Wooten has not been diligent, and the petition is
Josephine Linker Hart, Justice, dissenting.
dissent. The majority offers two bases to support its
decision to deny Wooten's petition to reinvest
jurisdiction in the trial court to consider a writ of error
coram nobis. First, the majority suggests that Wooten is
making an ineffective assistance counsel argument, which is
not cognizable in error coram nobis proceedings. Second, the
majority suggests that Wooten has not been diligent in
bringing his claim. The majority is incorrect to deny
Wooten's petition for either of these reasons.
a plain reading of Wooten's petition reveals that the
majority's characterization of Wooten's argument is
wholly inaccurate. Wooten's argument is that he was
insane and suffered from a mental disease or defect at the
time of trial, not that his trial counsel was ineffective.
Wooten's petition contains only a single assertion that
his trial counsel was ineffective for failing to investigate
or present evidence of his mental condition, but that
assertion is not the thrust of his petition. Wooten's
argument is that he was insane at the time of trial, which is
a perfectly cognizable basis for error coram nobis relief.
Howard v. State, 2012 Ark. 177, 403 S.W.3d 38 (error
coram nobis relief available for one of four grounds: (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). Accordingly, the majority's first
basis for denying Wooten's petition is inapplicable.
the majority rejects Wooten's petition on the basis that
he has not diligently pursued his claims. There is simply no
rationale to support such a policy. The State has no interest
whatsoever in continuing to hold individuals in prison when
some fact extrinsic to the record would have kept those
individuals from being placed in prison in the first place.
Reinvesting jurisdiction in the trial court to consider the
writ of error coram nobis is the only way to address this
situation. Accordingly, the majority's second basis for
denying Wooten's petition is inapplicable as well.
Wooten alleges a perfectly viable basis for reinvesting
jurisdiction in the trial court to consider the writ of error