Summary
In Rodgers v. State, 2013 Ark. 294, 2013 WL 3322344 (per curiam), we noted that a court has the discretion to determine whether the renewal of a petitioner's application for the writ, when there are additional facts presented in support of the same grounds, will be permitted.
Summary of this case from Swanigan v. StateOpinion
No. CR-04-534
06-27-2013
CHARLES GENTRY RODGERS PETITIONER v. STATE OF ARKANSAS RESPONDENT
Charles Gentry Rodgers, pro se petitioner. No response.
PRO SE PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS AND MOTION TO AMEND PETITION TO REINVEST JURISDICTION [PHILLIPS COUNTY CIRCUIT COURT, 54CR-02-171]
PETITION DISMISSED; MOTION TO AMEND PETITION DENIED.
PER CURIAM
In 2003, a jury found petitioner Charles Gentry Rodgers guilty of rape for which he was sentenced as a habitual offender to life imprisonment. We affirmed. Rodgers v. State, 360 Ark. 24, 199 S.W.3d 625 (2004).
In 2011, petitioner filed a pro se petition in this court seeking to have jurisdiction reinvested in the trial court to consider a petition for writ of error coram nobis. The petition was denied. Rodgers v. State, 2012 Ark. 193 (per curiam). Five months after the petition was denied, petitioner filed the pro se petition that is now before us, again seeking leave to have jurisdiction reinvested in the trial court to consider a coram-nobis petition.
As with the first such petition, the petition was assigned the same docket number as the direct appeal in the case.
In the first petition, petitioner alleged that he had been denied a speedy trial by the State on the ground that the State introduced false information into the record and misled the trial court on the facts. This court has consistently held that 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); Cloird v. State, 357 Ark. 446, 182 S.W.3d 477 (2004). The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Williams v. State, 2011 Ark. 541 (per curiam). We concluded that the information put forth by petitioner as proof that he had been denied a speedy trial was available at the time of trial and was not hidden in some way by the State. Rodgers, 2012 Ark. 193, at 2. As the information was available, petitioner did not meet his burden of establishing a basis for a writ of error coram nobis.
Petitioner also raised the speedy-trial issue in a petition filed in the trial court for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2005). The petition was denied, and this court granted appellant leave to proceed with a belated appeal of the order. Rodgers v. State, CR-05-1112 (Ark. Nov. 3, 2005) (unpublished per curiam). Petitioner argued in the Rule 37.1 petition that trial counsel had been ineffective in failing to move for dismissal of the rape charge based on a speedy-trial violation. On appeal, however, appellant argued that counsel was ineffective for failing to raise the speedy-trial issue on direct appeal or in a petition for writ of prohibition. As the issue argued on appeal was different from that raised below and not addressed by the court in the order, we declined to reach it. Rodgers v. State, CR-05-1112 (Ark. Jan. 11, 2007) (unpublished per curiam).
--------
Now, in his second coram-nobis petition, petitioner again raises the claim that he was denied a speedy trial because of the State's misconduct. He urges this court to accept a second petition raising the same allegation because he has now obtained a copy of the docket sheet and arrest warrant from his trial record. Clearly, however, those documents were available at the time of trial. Petitioner has not demonstrated that there is any fact, not known to the circuit court at the time of trial, that would have prevented the rendition of the judgment in his case.
It appears that petitioner may have couched his allegation concerning a speedy-trial violation as a willful withholding of information by the State because trial error, in itself, is not a basis to grant the writ. A writ of error coram nobis is available to address certain errors that are found in only 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. McDaniel v. State, 2012 Ark. 465 (per curiam). The question of whether there was a speedy-trial violation is one that could have been addressed at trial and, if the issue was decided adversely to petitioner, on the record on direct appeal. Claims that could have been raised at trial are not grounds for the writ. Smith v. State, 2012 Ark. 403 (per curiam). As we noted when this same issue was raised in the first coram-nobis petition, this applies even to issues of trial error of constitutional dimension that could have been raised in the trial court. Rodgers, 2012 Ark. 193, at 3.
Petitioner filed a motion to amend the petition to reinvest jurisdiction in the trial court to offer further proof of a speedy-trial violation. As he has not shown in the motion that the facts surrounding whether he was afforded a speedy trial were not available at the time of trial, there is no cause to grant the motion, and it is denied.
With respect to the fact that the instant petition is much like the first that was denied by this court, a court has discretion to determine whether the renewal of a petitioner's application for the writ, when there are additional facts presented in support of the same grounds, will be permitted. Kelly v. State, 2013 Ark. 187 (per curiam); see O'Neal v. State, 2010 Ark. 425 (per curiam) (citing Jackson v. State, 2009 Ark. 572 (per curiam)); see also People v. Sharp, 320 P.2d 589 (Cal. Ct. App. 1958) (denial of the writ of error coram nobis is not res judicata; it is within the sound discretion of the court whether renewal of the application, on the same ground but with an adequate statement of facts, will be permitted); see also United States v. Camacho-Bordes, 94 F.3d 1168 (8th Cir. 1996) (res judicata did not apply to bar a second petition for writ of error coram nobis, but abuse-of-writ doctrine was applied to subsume res judicata).
Petitioner's successive application for coram-nobis relief in this court is an abuse of the writ in that he alleges no fact sufficient to distinguish his claim in the instant petition from the claim in the first. He did not establish in the first petition that there was any basis for the writ, and his reassertion of the same claim in the second petition is a misuse of the remedy. Accordingly, the petition is dismissed.
Petition dismissed; motion to amend petition denied.
Charles Gentry Rodgers, pro se petitioner.
No response.