FOURTH PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT
TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS; MOTION
TO SUPPLEMENT THE PRO SE PETITION [PULASKI COUNTY CIRCUIT
COURT, FOURTH DIVISION, NO. 60CR-92-3131]
Swanigan, pro se petitioner.
Rutledge, Atty Gen., by: Vada Berger, Sr. Asst Atty Gen.,
RAE HUDSON, Associate Justice
Petitioner Terry Swanigan was charged with capital murder in
the 1992 shooting death of Lewis Allen. The evidence at trial
reflected that Swanigan had confronted Allen inside a shop
and pointed a gun at Allens face. As Swanigan and Allen
struggled for possession of the gun, Allen fell backward, and
Swanigan fired the gun three times. Allen was struck by one
of the bullets, after which he ran outside, collapsed, and
died. A Pulaski County Circuit Court jury found Swanigan
guilty of murder in the first degree, for which he was
sentenced to life imprisonment. We affirmed. Swanigan v.
State, 316 Ark. 16, 870 S.W.2d 712 (1994).
2002, Swanigan 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. The trial 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. A writ of error coram nobis is an
extraordinarily rare remedy. Martinez-Marmol v.
State, 2018 Ark. 145, 544 S.W.3d 49. 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 had it been
known to the trial 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 771.
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.
Martinez-Marmol, 2018 Ark. 145, 544 S.W.3d 49. 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.
denied Swanigans petition because it did not establish a
ground for the writ. Swanigan v. State, CR- 93-1127,
2002 WL 31041619 (Ark. Sept. 12, 2002) (unpublished per
curiam). In 2015, Swanigan filed a second coram nobis
petition in this court. In the petition, he alleged that a
writ of error coram nobis should be issued on the grounds
that the prosecution in his case violated Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963), and because the State used "false
testimony" to obtain the conviction. The second petition
was also denied. Swanigan v. State, 2015 Ark. 371,
2015 WL 5895415 (per curiam). In 2016, Swanigan filed a third
coram nobis petition in which he reiterated the claims raised
in the second petition that this court denied in
dismissed the petition as an abuse of the writ because there
were no additional facts to distinguish the third petition
from the second petition, and Swanigan had raised no
cognizable ground for the writ in any of his three petitions.
Swanigan v. State, 2016 Ark. 109, 485 S.W.3d 695
before this court is Swanigans pro se fourth petition to
reinvest jurisdiction in the trial court to consider a
petition for writ of error coram nobis. Swanigan contends (1)
that there is newly discovered evidence and that he is
entitled to an evidentiary hearing; (2) that the prosecutor
or a detective coerced a witness, Cody Nelson, to falsely
testify so Nelsons testimony would match that of another
witness, Henderson; and (3) that although witnesses testified
to various facts about the shooting, including the number of
shots fired, the distance of the shooting, and the
description of the gun, there is evidence to dispute the
witnesses testimony. Because Swanigan has raised some of the
allegations before and because he fails to establish a ground
for the writ to issue, the petition is denied. Swanigans
motion to supplement the pro se fourth petition to reinvest
jurisdiction before the court is moot because it fails to
establish a claim for coram nobis relief.
Swanigan makes a generalized claim of a Brady
violation, while contending that Nelson was coerced to
testify falsely to "corroborate Hendersons untrue
statement" because capital murder and first-degree
murder overlap and "both carry premeditation as an
essential element that must be proven in order to find
guilt." There are three elements of a 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; (3) prejudice must
have ensued. Harrell v. State,2019 Ark. 120, 570
S.W.3d 463. The claims that the State used Hendersons false
testimony to obtain a conviction and the claim of a
Brady violation have been raised in both his second
and third coram nobis petitions.SeeSwanigan, 2016 Ark. 109, 485 S.W.3d 695;
Swanigan, 2015 Ark. 371. Because Swanigan has
alleged no fact sufficient to distinguish his claims in the