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                  SUPREME COURT OF ARKANSAS
                                        No.   CR-08-1019

ROBERT BURTON                                      Opinion Delivered January   30, 2014
                               PETITIONER
                                                   PRO SE PETITION TO REINVEST
V.                                                 JURISDICTION IN THE CIRCUIT
                                                   COURT TO CONSIDER A PETITION
                                                   FOR WRIT OF ERROR CORAM NOBIS
STATE OF ARKANSAS                                  [GARLAND COUNTY CIRCUIT
                             RESPONDENT            COURT, NO. 26CR-07-144]


                                                   PETITION DENIED.


                                       PER CURIAM

       In 2008, a jury found petitioner Robert Burton guilty of aggravated robbery and burglary.

According to the trial record, Tamara Herrera, her son Anthony Newell, and his girlfriend,

Rachael Cummings, as well as several children, were asleep in their residence when petitioner,

Michael Canady, and Mary Crow entered the home and stated that they needed all the money.

The evidence at trial included the pretrial and in-court identification of petitioner by Cummings

as well as the in-court identification of petitioner by Newell. Both Cummings and Newell

testified that petitioner held a gun on the family while the woman (Crow) took $1000 from a pair

of Newell’s jeans. According to the trial record, Herrera identified Canady based on his voice,

and she made a pretrial identification of Crow; however, Herrera testified that she did not see

the third individual that was in the home. Petitioner was sentenced to serve a total of 360

months’ imprisonment. In a motion for new trial, petitioner argued that he was entitled to a new

trial based on newly discovered evidence consisting of (1) evidence of Herrera’s attempt to

extort money from Canady in exchange for the charges against him being dismissed; (2)
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testimony in the Canady trial that Herrera was unsure as to whether Canady was one of the

participants in the charged crimes; and (3) a tape recording of Herrera in which she made

admissions contrary to her testimony and statements to the Hot Springs Police Department. At

the motion hearing, the trial court heard arguments of counsel with regard to the bases for the

motion, and a copy of relevant portions of the trial transcript of the Canady trial was introduced.

The partial trial transcript reflects that all the evidence referenced by petitioner in the motion

was addressed or introduced in the Canady trial. In its order denying the motion for new trial,

the trial court found that (1) the identification of petitioner as a perpetrator of the crime with

which he was charged did not depend on the testimony of Herrera, and (2) the petitioner had

not demonstrated that the testimony elicited in the Canady trial would have been admissible in

his trial, and the court did not view it as admissible in this case. The Arkansas Court of Appeals

affirmed the judgment-and-commitment order. Burton v. State, 2009 Ark. App. 328.

       Subsequently, petitioner filed in the trial court a timely petition for postconviction relief

pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009). The petition was denied, and we

affirmed. Burton v. State, 2011 Ark. 351 (per curiam). Petitioner has now filed in this court a

petition requesting that this court reinvest jurisdiction in the trial court in order that he may

proceed with a petition for writ of error coram nobis. We deny the petition because petitioner

fails to show that the claims he would raise in his proposed attack on the judgment are

meritorious.

       A 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



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only after we grant permission. Cromeans v. State, 2013 Ark. 273 (per curiam); Burks v. State, 2013

Ark. 188 (per curiam).

       As grounds for the writ, petitioner, in an apparent claim of ineffective assistance of

counsel, first contends that if trial counsel had conducted a pretrial investigation, he could have

shown that the pretrial and in-court identifications of him were “grossly incorrect” as well as

“fabricated” or “distorted.” Petitioner next claims that a writ is warranted based on newly

discovered evidence that questions the credibility of the State’s witnesses, primarily Herrera. As

in his motion for new trial, petitioner claims that the newly discovered evidence consists of

evidence of attempted extortion of Canady by Herrera, testimony in the Canady trial that

Herrera was unsure of her identification of Canady, and a tape recording of Herrera in which

she contradicted her testimony and statements to the Hot Springs Police Department. Petitioner

also argues that the recording of Herrera was withheld by the prosecuting attorney’s office in

violation of his constitutional rights, as recognized in Brady v. Maryland, 373 U.S. 83 (1963).

Finally, petitioner contends that a writ is warranted because the initial investigation into his

involvement in the charged crimes was a result of hearsay—Canady’s mother telling Herrera that

if Canady was involved in the crime, then petitioner was also involved—that questions the

credibility of the State’s witnesses.

       Petitioner seems to urge this court to accept a new standard for determining when a writ

of error coram nobis is warranted. We decline to do so. A writ of error coram nobis is an

extraordinarily rare remedy, more known for its denial than its approval. Cromeans, 2013 Ark.

273; Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. The writ is allowed only under compelling



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circumstances to achieve justice and to address errors of the most fundamental nature.

McDaniels v. State, 2012 Ark. 465 (per curiam). We have held that a writ of error coram nobis

is available to address certain errors that are found in one of four categories: insanity at the time

of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party

confession to the crime during the time between conviction and appeal. Cromeans, 2013 Ark.

273; Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per curiam). 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 which, through no

negligence or fault of the defendant, was not brought forward before rendition of judgment.

McFerrin v. State, 2012 Ark. 305 (per curiam); Cloird v. State, 2011 Ark. 303 (per curiam). The

petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record.

Williams v. State, 2011 Ark. 541 (per curiam). Coram-nobis proceedings are attended by a strong

presumption that the judgment of conviction is valid. Roberts v. State, 2013 Ark. 56, __ S.W.3d

__; Carter v. State, 2012 Ark. 186 (per curiam); Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984)

(citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975)).

       As to petitioner’s claim that he is entitled to a writ based on trial counsel’s failure to

conduct an adequate pretrial investigation, such allegation is not a basis for the writ. This court

has consistently held that claims of ineffective assistance of counsel are outside the purview of

a coram-nobis proceeding. Hall v. State, 2013 Ark. 404 (per curiam); Cromeans, 2013 Ark. 273.

       As to petitioner’s claim based on newly discovered evidence that mirrors his argument

previously raised and addressed in a motion for new trial, a writ is not warranted on such basis.



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Likewise, petitioner’s claim regarding a “hearsay” statement that led to an investigation of his

involvement in the charged crimes does not warrant issuance of a writ. Testimony regarding this

statement was included in the partial transcript of the Canady trial that was introduced into

evidence at the hearing on petitioner’s motion for new trial. It is clear from the direct-appeal

record that all of this evidence was brought forward in the trial court and was not extrinsic to

the record as necessary to warrant issuance of the writ. The evidence was presented at the

hearing on petitioner’s motion for new trial; thus, the evidence was known to the trial court at

the time that it denied petitioner’s motion. Accordingly, petitioner’s claims are not cognizable

in a coram-nobis proceeding. See McCullough v. State, 2009 Ark. 211 (per curiam) (A coram nobis

proceeding does not provide a means to address issues raised by petitioner in a motion for new

trial.)

          Finally, petitioner’s argument that the recording, in which she made admissions contrary

to other statements, was withheld by the prosecuting attorney’s office in violation of his

constitutional rights, as recognized in Brady v. Maryland, 373 U.S. 83 (1963), is without merit.

The three elements of a Brady violation are that: (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; and (3) prejudice must have

ensued. Without addressing the first and third criteria, we recognize that the second criterion

cannot be met. Petitioner was aware of the recording at the time that he filed his motion for

new trial and referred to it as a basis for his motion.

          Petition denied.
          Robert Burton, pro se petitioner.
          Dustin McDaniel, Att’y Gen., by: Christian Harris, Ass’t Att’y Gen., for respondent.
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