Paul Emery v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

October 3, 2002

PAUL EMERY

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 97-993

PRO SE PETITION FOR LEAVE TO FILE A PETITION FOR WRIT OF ERROR CORAM NOBIS [CIRCUIT COURT OF JACKSON COUNTY, NO. CR 96-187, HON. HAROLD ERWIN, JUDGE]

PETITION DENIED

Petitioner Paul Emery was found guilty of rape and sexual abuse in the first degree and was sentenced to fifty years' imprisonment. We affirmed. Emery v. State, No. CR 97-993 (Ark. Nov. 4, 1989)(unpublished). Petitioner now seeks leave to file a petition for writ of error coram nobis in the trial court. The petition for leave to proceed in the trial court is necessary after a judgment has been affirmed by this court. See Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997).

The writ of error coram nobis is an ancient writ developed from the common law of England that provides a remedy where the convicted criminal defendant is not protected by his right of appeal because the record on its face discloses no error to the appellate court. See Magby v. State, 348 Ark. 415, 72 S.W.3d 508 (2002)(per curiam) (citing Woods, The Writ of Error Coram Nobis in Arkansas, 8 Ark. L. Bul. 15 (1940)). A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Larimore v. State, 341 Ark. 397, 17 S.W.3d 87 (2000). Literally, coram nobis means our court, in our presence, before us. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). The essence of the writ of error coram nobis is that it is addressed to the very court which renders the judgment where injustice is alleged to have been done, rather than to an appellate or other court. Black's Law Dictionary 337 (6th ed. 1990). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999). We have held that a writ of error coram nobis was available to address certain errors of the most fundamental nature 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. Pitts, supra. Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Due diligence is required in making application for relief. Penn v. State, supra.

As none of the petitioner's allegations fall within the four categories of claims for which a writ of error coram nobis may be granted, permission to file the petition in the trial court is denied.

Petition denied.