Washington v. State

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                  SUPREME COURT OF ARKANSAS
                                         No.   CR-04-18

DELARRON KEITH WASHINGTON                          Opinion Delivered September   11, 2014
                   PETITIONER
                                                   PRO SE PETITION TO RECALL THE
V.                                                 MANDATE AND REINVEST
                                                   JURISDICTION IN THE CIRCUIT
                                                   COURT TO CONSIDER A PETITION
STATE OF ARKANSAS                                  FOR WRIT OF ERROR CORAM NOBIS,
                             RESPONDENT            WRIT OF HABEAS CORPUS, QUO
                                                   WARRANTO, AND EVIDENTIARY
                                                   HEARING [UNION COUNTY CIRCUIT
                                                   COURT, NO. 70CR-02-487]


                                                   PETITION DENIED.


                                         PER CURIAM

       In 2003, a jury found petitioner DeLarron Keith Washington guilty of residential

burglary, aggravated robbery, and first-degree battery and sentenced him to an aggregate term

of 480 months’ imprisonment. The Arkansas Court of Appeals affirmed. Washington v. State,

CR-04-18 (Ark. App. Oct. 27, 2004) (unpublished) (original case no. CACR 04-18) (Washington

I). Petitioner then filed in this court a pro se petition in which he requested permission to

proceed in the trial court with a petition for writ of error coram nobis based on a claim of

ineffective assistance of counsel. The petition was denied. Washington v. State, CR-04-18 (Ark.

May 8, 2008) (unpublished per curiam) (original case no. CACR 04-18) (Washington II).

Petitioner has now filed a second petition in this court entitled “Petitioner’s Pro Se Petition to

Recall the Mandate, Reinvest Jurisdiction to Allow Writ of Error Coram Nobis, Habeas Corpus,

Quo Warranto, Evidentiary Hearing, Etc.” We construe the petition as a request that
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jurisdiction be reinvested in the trial court so that petitioner may proceed with a petition for writ

of error coram nobis.1

       A petition for leave to proceed in the trial court is necessary because the circuit court can

entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal

only after we grant permission. Cromeans v. State, 

 (per curiam); Burks v. State, 

 (per curiam).

       A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial

than its approval. Cromeans, 

; Howard v. State, 

, 

. The

writ is allowed only under compelling circumstances to achieve justice and to address errors of

the most fundamental nature. McDaniels v. State, 

 (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, 

; Pitts v. State, 

, 

 (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, 

 (per curiam); Cloird v. State, 

 (per

curiam). The petitioner has the burden of demonstrating a fundamental error of fact extrinsic

to the record. Williams v. State, 

 (per curiam). Coram-nobis proceedings are

       1
        As with the first such petition, the petition was assigned the same docket number as the
direct appeal in the case.

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attended by a strong presumption that the judgment of conviction is valid. Roberts v. State, 

, 

; Carter v. State, 

 (per curiam); Penn v. State, 

,

 (1984) (citing Troglin v. State, 

, 

 (1975)).

       In the first petition, petitioner alleged that counsel representing him at trial was not a

licensed attorney, that counsel’s license was suspended at the time of petitioner’s trial, and that

petitioner was therefore without counsel and deprived of a fair trial. Petitioner further asserted

that the trial court and the prosecutor were aware of counsel’s suspension, although petitioner

was not. We concluded that petitioner’s claim was, in effect, a claim that counsel was ineffective

because his license was suspended at the time of trial, and we denied the petition because a claim

of ineffective assistance of counsel is not a ground to grant a writ of error coram nobis.

Washington II, slip op. at 2–3.

       Now, in his second petition, petitioner again raises the claim that he was denied effective

assistance of counsel because his trial attorney’s license had been suspended at the time of trial.

Petitioner also again alleges that the trial court and the prosecutor were aware of the suspension

at the time of trial. While petitioner alleges that the trial judge violated his oath of office by

permitting counsel to represent him while his license was suspended, the allegation appears to

be made in support of his claim that he is entitled to relief because he has not been allowed to

present his claim of ineffective assistance. Claims of ineffective assistance of counsel are not

cognizable in error-coram-nobis proceedings. Burgie v. State, 

 (per curiam);

Cromeans, 

. Accordingly, as with petitioner’s prior petition based on a claim of

ineffective assistance of counsel, we find no ground to grant the relief sought based on



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petitioner’s repeated assertion that he was denied effective assistance of counsel.2

       To the extent that petitioner is attempting to argue that, based on Trevino v. Thaler, 

, 

 (2013), he is entitled to raise an allegation of ineffective assistance of

counsel and related claims, his reliance on Trevino is misplaced. Trevino does not require this

court to expand the scope of a coram-nobis proceeding to allow for issuance of a writ of error

coram nobis to permit a collateral challenge to a judgment of conviction based on a claim of

ineffective assistance of counsel. Jarrett v. State, 

 (per curiam). Again, a coram-

nobis proceeding is an exceedingly narrow remedy that requires a showing of facts that were

extrinsic to the record that would have prevented rendition of the judgment at trial. 

Petitioner’s claim that he has not been afforded an adequate opportunity to present claims of

ineffective assistance of counsel is not within the scope of such a proceeding. See 

 We decline

to refashion the writ to afford petitioner a remedy. See id.; Nelson v. State, 

, 

 (holding that claims of ineffective assistance of counsel are beyond the scope of a

coram-nobis proceeding); Zulpo v. State, 

 (per curiam) (holding that the scope of a

coram-nobis proceeding would not be expanded to include an argument outside the four

categories recognized as being within the purview of a coram-nobis proceeding).

       Petitioner’s next claim is based on the assertion that the victim was not able to identify

him at trial. This allegation amounts to an argument that the evidence was not sufficient to



       2
         While the petition summarily refers to habeas-corpus relief and the style of the petition
refers to other forms of relief, the petition does not include any cognizable claim or convincing
argument for such relief. Moreover, as we stated in our prior decision addressing petitioner’s first
petition to reinvest jurisdiction, petitioner must file a petition for writ of habeas corpus directly
in the circuit court in the county in which the prisoner is held in custody. Washington II.

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sustain the judgment-and-commitment order. The issue of the sufficiency of the evidence is not

cognizable in a coram-nobis proceeding. Sims v. State, 

 (per curiam); Smith v. State,

 (per curiam). The sufficiency of the evidence is a matter to be addressed at trial.

McDaniels v. State, 

 (per curiam); Sims, 

.

       Finally, petitioner claims that, because his trial attorney admitted to a drug addiction and

had his license suspended, he is entitled to “have all records, files, docket sheets, etc. . . .

recalled” and to receive “postconviction relief.” We treat petitioner’s request as a request to

recall the direct-appeal mandate and find no good cause to do so. To warrant recall of the

mandate, a petitioner must show an “error in the appellate process,” meaning an error that this

court made or overlooked while reviewing a case in which the death sentence was imposed.

Nooner v. State, 

, ___ S.W.3d ___ (citing Engram v. State, 

, 

 (2004)). We have been consistent in considering motions to recall the mandate in criminal

cases only where the death penalty has been imposed. 

 While petitioner does not cite Lee v.

State, 

, 

 (2006) in support of his request to recall the mandate, we note

that Lee is distinguishable from the instant case because Lee was a death-penalty case in which

the petitioner’s postconviction proceedings were determined to be procedurally flawed based

on a record replete with examples of his postconviction attorney not functioning at the level of

qualified or competent counsel required by Arkansas Rule of Criminal Procedure 37.5. Here,

petitioner’s claim of ineffective assistance of counsel is not sufficient to demonstrate any error

in the appellate process to warrant recalling the direct-appeal mandate.

       Petition denied.

       DeLarron Keith Washington, pro se petitioner.

       Dustin McDaniel, Att’y Gen., by: Nicana C. Sherman, Ass’t Att’y Gen., for respondent.


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