PRO SE
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]
Terry
Swanigan, pro se petitioner.
Leslie
Rutledge, Att'y Gen., by: Vada Berger, Sr. Ass't
Att'y Gen., for respondent.
COURTNEY 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 Allen's 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).
In
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.
The
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.
We
denied Swanigan's petition because it did not establish a
ground for the writ. Swanigan v. State, CR-93-1127
(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 (1963),
and because the State used "false testimony" to
obtain the conviction. The second petition was also denied.
Swanigan v. State, 2015 Ark. 371 (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 2015.[1]We 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 (per curiam).
Now
before this court is Swanigan's 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 Nelson's 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.
Swanigan's 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 Henderson's 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 Henderson's 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.[2] See Swanigan, 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 instant petition from the claims in the second
or third petition, his reassertion of largely the same claims
is a misuse of the remedy; accordingly, this court will not
address those issues again. Smith v. State, 2018
Ark. 396, 562 S.W.3d 211.
To the
extent that Swanigan has raised a new claim regarding
Nelson's coerced testimony, it fails.[3] Swanigan offers
no further evidence to support his claim that Nelson's
testimony was coerced by the State, and the lack of factual
support for a claim in a coram nobis petition is itself cause
to deny the writ.[4] Although Swanigan couches his claim
concerning Nelson's allegedly coerced testimony as a
Brady violation rather than as a claim of recanted
testimony, neither claim-recanted testimony or Brady
violation-affords Swanigan relief. If Swanigan's claim is
an attempt to provide evidence that Nelson recanted his trial
testimony, it is well settled that a claim of recanted
testimony, standing alone, is not cognizable in a coram nobis
proceeding. Foreman v. State, 2018 Ark. 330;
Smith v. State, 200 Ark. 767, 140 S.W.2d 675 (1940)
(holding that the writ was not available to afford relief on
the ground that the principal witness against the accused had
recanted and that others since the accused's conviction
had confessed to the crime); see also Swanigan, 2015
Ark. 371. A court considering a claim of a Brady
violation in a coram nobis petition is not required to take a
petitioner's allegations at face value without
substantiation-which Swanigan fails to provide. Thacker
v. State, 2016 Ark. 350, 500 S.W.3d 736; see
Jackson, 2017 Ark. 195, 520 S.W.3d 242.
Moreover,
Swanigan does not establish the existence of facts that could
not have been discovered at the time of trial. Hall v.
State, 2018 Ark. 319, 558 S.W.3d 867. The nature and
extent of Nelson's testimony was well known at trial and
was even argued by Swanigan in his pro se third petition
before this court; as such, Swanigan has failed to establish
he is entitled to coram nobis relief. See Carner,
2018 Ark. 20, 535 S.W.3d 634.
Swanigan,
however, clearly raises for the first time a Brady
violation involving a "State Crime Laboratory Evidence
Submission Form," which he indicates is a "State
Crime Laboratory Report."[5] Although he indicates this
submission report was withheld, it simply is not exculpatory
because it is merely a form from the state crime lab
indicating the type of evidence collected and the nature of
the requested analysis for the evidence. It does not indicate
any test results and provides no information that is either
favorable or unfavorable to Swanigan. See Harrell,
2019 Ark. 120, 570 S.W.3d 463. Swanigan has not shown that
the State withheld exculpatory evidence from the defense in
violation of Brady.
The
remainder of his allegations referencing the witness
testimony at trial with respect to the number of gunshots
heard, whether Swanigan was seen stepping away from the
victim's body, and whether the victim was seen with a
gun, are nothing more than assertions that the evidence was
insufficient to sustain the judgment and do not state a basis
for coram nobis relief. Claims that attack the sufficiency of
the evidence or the credibility of witnesses constitute a
direct attack on the judgment and are not within the purview
of a coram nobis proceeding. Grady v. State, 2017
Ark. 245, 525 S.W.3d 1. Allegations that the evidence
presented at trial was not sufficient to support a finding of
the defendant's guilt are to be addressed at trial and,
when appropriate, on the record on ...