JAMES E. SMITH PETITIONER
STATE OF ARKANSAS RESPONDENT
SEVENTH PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT
TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS AND
MOTION TO REBUT THE STATE'S RESPONSE [JEFFERSON COUNTY
CIRCUIT COURT, NO. 35CR-99-724]
R. BAKER, ASSOCIATE JUSTICE.
before this court is petitioner James E. Smith's pro se
seventh petition to reinvest jurisdiction in the trial court
to consider a petition for writ of error coram nobis. Also
pending before this court is Smith's motion to rebut the
State's response to his petition. Because Smith has
failed to raise claims that are cognizable in coram nobis
proceedings, we deny the petition, which renders the motion
2001, a jury found Smith guilty of two counts of rape for
engaging in sexual intercourse or deviate sexual activity
with his girlfriend's two daughters who were both under
the age of fourteen when the sexual abuse occurred. In his
seventh petition, Smith raises new allegations that his trial
counsel was ineffective and conflicted, failed to conduct an
adequate investigation, and intentionally withheld evidence
that the two victims and their mother had a motive to
fabricate rape accusations. Because the proposed claims Smith
raised in his seventh petition are based on allegations that
are not cognizable in coram nobis proceedings, we deny his
seventh petition to reinvest jurisdiction in the trial court.
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. Roberts v.
State, 2013 Ark. 56, 425 S.W.3d 771. A writ of error
coram nobis is an extraordinarily rare remedy. Id.
Coram nobis proceedings are attended by a strong presumption
that the judgment of conviction is valid. Id.;
Westerman v. State, 2015 Ark. 69, 456 S.W.3d 374.
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. Roberts, 2013 Ark. 56, 425 S.W.3d 771. The
petitioner has the burden of demonstrating a fundamental
error of fact extrinsic to the record. Id.
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, 403 S.W.3d 38.
well settled that ineffective-assistance-of-counsel claims
are not cognizable in error coram nobis proceedings.
Osburn v. State, 2018 Ark. 341, 560 S.W.3d 774.
Coram nobis proceedings are not to be used as a substitute
for raising claims of ineffective assistance of counsel under
Arkansas Rule of Criminal Procedure 37.1 and are not
interchangeable with proceedings under the Rule, which is the
remedy in Arkansas for asserting allegations of ineffective
assistance of counsel. Id. The writ is not available
when a mistake or error of law is made by trial counsel.
Id. Likewise, Smith's claim that counsel was
operating under a conflict of interest constitutes an
ineffective-assistance-of-counsel claim, which is outside the
purview of coram nobis proceedings. Nelson v. State,
2014 Ark. 91, 431 S.W.3d 852.
attempts to use a coram nobis proceeding to raise new claims
of ineffective assistance of counsel and to reassert a
conflict-of-interest claim, both of which were either raised
and rejected or should have been raised in a previous Rule
37.1 proceeding. As with his first six petitions, Smith has
again asserted claims that are not cognizable in a petition
to reinvest jurisdiction in the trial court to consider a
petition for writ of error coram nobis.
denied; motion moot.
Smith's first three pro se
petitions to reinvest jurisdiction in the trial court to
consider a petition for writ of error coram nobis challenged
his convictions on the basis that the two victims had made
inconsistent statements, the trial court erroneously admitted
evidence, the prosecution fabricated evidence, and the
evidence was insufficient to sustain the conviction.
Smith's first petition was denied, and his second and
third petitions were dismissed as successive. Smith v.
State, 2012 Ark. 403 (per curiam); Smith v.
State, 2014 Ark. 246, 456 S.W.3d 731 (per curiam);
Smith v. State, 2015 Ark. 188, 461 S.W.3d 345 (per
curiam). In Smith's fourth petition to reinvest
jurisdiction for error coram nobis relief, he alledged that
his convictions were based on an invalid arrest warrant and
an invalid information. The petition was denied. Smith v.
State, 2016 Ark. 201, 491 S.W.3d 463 (per curiam). This
court dismissed Smith's fifth petition on August 3, 2017,
without written opinion. In Smith's sixth petition to