Thurman Odis Hamaker v. State of Arkansas

ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

September 30, 2004

THURMAN ODIS HAMAKER

Appellant

v.

STATE OF ARKANSAS

Appellee

CACR 98-503

PRO SE MOTION FOR RECONSIDERATION OF PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [CIRCUIT COURT OF BRADLEY COUNTY, NO. CR 96-66-1A]

MOTION DENIED

Per Curiam

In 1997, Thurman Odis Hamaker was found guilty by a jury of rape, sexual abuse in the first degree, and sexual abuse in the third degree. An aggregate sentence of 120 months' imprisonment was imposed. The court of appeals affirmed. Hamaker v. State, CACR 98-503 (Ark. App. February 24, 1999).

Hamaker subsequently filed in the trial court a petition for postconviction relief pursuant to Criminal Procedure Rule 37.1, challenging the judgment. The petition was denied as untimely and because it exceeded the ten pages allowed in a petition pursuant to Rule 37.1(e) without leave of the court to file an over-length petition. The court later entered an amended order stating that while the petition was indeed timely, it nevertheless was denied because it exceeded the page limit. Hamaker appealed to this court from the original order. The appeal was dismissed on the ground that the trial court did not err when it declared the Rule 37.1petition to have exceeded without leave of the court the ten-page limit. Hamaker v. State, CR 02-514 (Ark. November 7, 2002) (per curiam).

On May 26, 2004, Hamaker asked that this court reinvest jurisdiction in the trial court to

consider a petition for writ of error coram nobis.1 Petitioner contended that the writ should issue because he was not afforded effective assistance of counsel in the Rule 37.1 proceeding in his case. We found the claim to be without merit in that there is no right to effective assistance of counsel in a postconviction proceeding. See Pennsylvania v. Finley, 482 U.S. 551 (1987); see also Dyer v. State, 258 Ark. 494, 527 S.W.2d 622 (1975). Moreover, even when a petitioner seeking a writ of error coram nobis contends that his trial attorney was ineffective, the allegation is outside the purview of a coram nobis proceeding. McArty v. State, 335 Ark. 445, 983 S.W.2d 418 (1998)(per curiam). Petitioner also argued that the trial court erred in not determining whether a law student who participated in his trial was properly certified pursuant to Bar. Admis. R. XV. The issue was clearly one which could have been addressed at the time of trial and thus did not warrant granting leave to proceed in the trial court with a petition for writ of error coram nobis.

Petitioner now asks that we reconsider our ruling on the ground that the opinion made reference to the original Rule 37.1 order of the circuit court rather than the amended order. The motion for reconsideration is denied.

The grounds raised in the petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis, which were addressed in our opinion, were not concerned with the trial court's reasons for the denial of petitioner's Rule 37.1 petition. As a result, there is no cause to reconsider the coram nobis petition.

Motion denied.

1 For clerical purposes, the instant petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis was assigned the same docket number as the direct appeal of the judgment.