PRO SE
THIRD PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO
CONSIDER A PETITION FOR A WRIT OF ERROR CORAM NOBIS [BENTON
COUNTY CIRCUIT COURT, NO. 04CR-07-1672]
Danny
R. Henington, pro se petitioner.
Leslie
Rutledge, Att'y Gen., by: Joseph Karl Luebke, Ass't
Att'y Gen., for respondent.
JOHN
DAN KEMP, CHIEF JUSTICE
Petitioner
Danny Ray Henington brings this third pro se petition to
reinvest jurisdiction in the trial court to consider a writ
of error coram nobis. In the petition, Henington primarily
alleges that prejudicial testimony provided by the
State's expert witness was admitted at trial without
objection from counsel or an admonishment from the trial
court. Henington contends that the errors of trial counsel
and the trial court in the admission of this testimony
deprived him of due process. Because Henington's claims
are not cognizable in coram nobis proceedings, we deny his
petition to reinvest jurisdiction in the trial court to
consider a petition for a writ of error coram nobis.
I.
Nature of the Writ
The
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. 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 trial court and which, through no
negligence or fault of the defendant, was not brought forward
before rendition of the judgment. Newman, 2009 Ark.
539, 354 S.W.3d 61. 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.
II.
Grounds for the Writ
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. Howard v.
State, 2012 Ark. 177, 403 S.W.3d 38. The burden is on
the petitioner in the application for coram nobis relief to
make a full disclosure of specific facts relied upon and not
to merely state conclusions as to the nature of such facts.
McCullough v. State, 2017 Ark. 292, 528 S.W.3d 833.
III.
Background
Henington
was convicted by a jury in 2009 of raping a five-year-old
girl in 2007 and sentenced to 432 months' imprisonment.
The Arkansas Court of Appeals affirmed the conviction and
sentence. Henington v. State, 2010 Ark.App. 619, 378
S.W.3d 196.
In
2016, Henington filed in this court his first petition to
reinvest jurisdiction in the trial court to consider a
petition for writ of error coram nobis. The principal claims
in the petition pertained to the admission at trial of the
victim's pretrial statement and the admission of
testimony from a witness who described a similar assault by
Henington under Rule 404(b) of the Arkansas Rules of
Evidence. We declined to grant the petition because
Henington's allegations did not state a claim for coram
nobis relief. Henington v. State, 2017 Ark. 111, 515
S.W.3d 577. In 2018, Henington filed a second coram nobis
petition alleging that evidence capable of impeaching the
credibility of the testimony of the 404(b) witness was
withheld in violation of Brady v. Maryland, 373 U.S.
83 (1963). Henington again alleged that the trial court made
errors in the admission of evidence at trial. We denied this
petition finding that Henington had not established a
Brady violation, that his additional claims were not
cognizable in coram nobis proceedings, and that he had failed
to act with due diligence. Henington v. State, 2018
Ark. 279, 556 S.W.3d 518.
IV.
Grounds for Relief
In this
third coram nobis petition, Henington claims that on
cross-examination by Henington's trial counsel, testimony
was elicited from the State's expert witness which
bolstered the credibility of the victim. Henington contends
that counsel was ineffective in eliciting such testimony and
that the trial court erred by failing to admonish the jury
with respect to what Henington contends was "highly
prejudicial" testimony. Henington argues that the
admission of testimony by the State's expert witness
regarding the credibility of the victim created a miscarriage
of justice such that it constituted a cognizable claim in
accordance with our holding in Strawhacker v. State,
where the grounds for the writ were expanded to ensure due
process and to provide a state remedy where none exists. 2016
Ark. 348, 500 S.W.3d 716. Here, however, there was no error
in the admission of the allegedly prejudicial testimony
provided by the State's expert, and therefore, Henington
has failed to allege a due process violation that would come
within the purview of coram nobis relief under our holding in
Strawhacker. This is so because there was no legal
basis to challenge the admission of testimony that was
elicited by Henington's own counsel. See Hicks v.
State, 327 Ark. 652, 941 S.W.2d 387 (1997) (Appellant
cannot complain of error in the admission of testimony when
he is the one who originally elicited the testimony.). To the
extent that the allegation can be construed as a claim of
ineffective assistance on the part of trial ...