Allen Lynn Penn v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 84-43

NOT DESIGNATED FOR PUBLICATION

ALLEN LYNN PENN

Petitioner

v.

STATE OF ARKANSAS

Respondent

Opinion Delivered October 20, 2005

PRO SE PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO PROCEED WITH A PETITION FOR A WRIT OF ERROR CORAM NOBIS [CIRCUIT COURT OF PULASKI COUNTY, CR 1983-441]

PETITION DENIED

PER CURIAM

Allen Lynn Penn was convicted of capital murder and sentenced to life imprisonment without parole. He appealed the conviction to this court. Prior to our decision on the appeal, Penn filed a petition for writ of error coram nobis based upon a confession to the crime made by Donald Lewis, then a prisoner at the Arkansas Department of Correction. We granted the petition. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). Lewis refused to testify at the hearing, and the trial court held that Penn was not entitled to a new trial. Penn did not appeal that decision, and we affirmed the judgment in Penn v. State, 284 Ark. 234, 681 S.W.2d 307 (1984). Penn then filed a pro se petition requesting permission to proceed in circuit court for postconviction relief pursuant to Ark. R. Crim. P. 37. We denied the petition in an unpublished opinion. Penn v. State, CR 84-43 (Ark. June. 23, 1986) (per curiam).

In a related proceeding, Penn has lodged an appeal in this court from an order denying his petition for writ of habeas corpus pursuant to Act 1780 of 2001, codified as Ark. Code Ann. § 16-112-201--207 (Supp. 2003), in which Penn requested DNA testing of blood samples that he claimed had been collected from the crime scene. Petitioner Penn, in the petition before us, asserts a violation of the right to due process as guaranteed by Brady v. Maryland, 373 U.S. 83 (1963), in that he contends the police withheld and then destroyed these blood samples. A brief recitation of the facts should be sufficient for the purposes of this discussion.

Anthony Faherty, a service station and convenience store clerk, was shot during a robbery. A taxi driver who pulled into the station during the robbery, then fled after encountering a man with a shotgun, identified petitioner as the robber. Another witness confirmed that a cab pulled into the station, and described how the robber shot out a window, after firing the shot that killed Faherty, and then fled through the broken window. The first police officer to arrive at the convenience store also placed petitioner near the scene shortly before the robbery. She testified that she believed there was blood on the broken glass in the window, which she knocked out onto the ground in order to enter the store. The officer who collected evidence at the murder scene testified that no blood samples were collected from the window glass. A plexiglass shard, however, was collected from the victim's body.

Petitioner Penn now requests this court to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis.1

The 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. Dansby v. State, 343 Ark.635, 37 S.W.3d 599 (2001) (per curiam). After reviewing the petition, we find that petitioner has failed to state good cause for us to do so.

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). We have held that a writ of error coram nobis was 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. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per curiam). For the writ to issue following the affirmance of a conviction, the petitioner must show a fundamental error of fact extrinsic to the record. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997). If petitioner had pleaded sufficient facts to support a showing that the prosecution withheld blood samples as he has alleged, he would establish the type of fundamental error we have previously held appropriate for issuance of the writ. However, coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Penn v. State, 282 Ark. at 574, 670 S.W.2d at 428, citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975). The court is not required to accept at face value the allegations of the petition. Id. Prior to our consideration of that issue, however, we must examine petitioner's diligence in seeking relief.

There is no specific time limit for seeking a writ of error coram nobis, but due diligence is required in making an application for relief and in the absence of a valid excuse for delay, the petition will be denied. Echols v. State, ___ Ark. ___, ___ S.W.3d ___ (January 20, 2005) ("Echols Error Coram Nobis II" or "Echols ECN II"). Due diligence requires that 1) the defendant be unaware of the fact at the time of trial; 2) he could not have, in the exercise of due diligence,presented the fact at trial; or 3) upon discovering the fact, did not delay bringing the petition. Id. A writ of error coram nobis is appropriate only when an issue was not addressed or could not have been addressed at trial because it was somehow hidden or unknown and would have prevented the rendition of the judgment had it been known to the trial court. Echols ECN II, at ____, ___ S.W.3d at ___; Brown v. State, 571, 670 S.W.2d 4 330 Ark. 627, 955 S.W.2d 901 (1997); Penn v. State, 282 Ark. at 574, 670 S.W.2d at 428, (citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975)).

Deoxyribonucleic acid testing was not available at the time of petitioner's trial, but blood comparisons and typing were, and the blood samples petitioner alleges the State withheld would have been important evidence. Petitioner's trial attorneys were aware that there was a possibility blood samples had been collected. A number of motions were filed by petitioner's trial counsel seeking information concerning the samples. The trial court and prosecutor agreed to tests on the samples during a hearing, but the officer who was responsible for collecting samples at the scene testified during that hearing that he had found no blood to collect. It appears from the transcript of this hearing that there had been some confusion from references in both the prosecution and defense counsel's files to glass samples, but that confusion was ultimately attributed to the sample of plexiglass taken from the victim. Trial counsel was granted access to the police officer's files during the hearing, and would have had opportunity to review those files for evidence of a Brady violation. At trial, trial counsel did question the first officer on the scene concerning her report that she saw blood on the glass.

The issues raised here were addressed at trial. Petitioner does not allege any new facts that were unknown, or that could not have been or were not presented at trial. Petitioner has failed to show a fundamental error that was unknown and could not have been addressed. This issue was addressed at trial and petitioner has therefore failed to show grounds for granting his petition.

Petition 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.