Powell v. State
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ARKANSAS SUPREME COURT
No.
CACR 03-862
Opinion Delivered
March 5, 2009
v.
PRO SE PETITION TO REINVEST
JURISDICTION IN CIRCUIT COURT
TO CONSIDER A PETITION FOR
WRIT OF ERROR CORAM NOBIS
[CIRCUIT COURT OF PULASKI
COUNTY, CR 2002-1558]
STATE OF ARKANSAS
Respondent
PETITION DENIED.
HOWARD POWELL
Petitioner
PER CURIAM
In 2003, petitioner Howard Powell was found guilty of rape and battery in the second degree
and sentenced to an aggregate term of thirty-two years’ imprisonment. The Arkansas Court of
Appeals affirmed. Powell v. State, CACR 03-862 (Ark. App. Sept. 1, 2004). Petitioner subsequently
filed a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1,
which was denied. No appeal was taken, and petitioner sought leave from this court to proceed with
a belated appeal. The motion was denied. Powell v. State, CR 05-758 (Ark. Oct. 13, 2005) (per
curiam).
Petitioner now asks that jurisdiction be reinvested in the trial court to consider a petition for
writ of error coram nobis in the case.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
1
For clerical purposes, a petition to reinvest jurisdiction in the trial court to consider a petition for
writ of error coram nobis is assigned the same docket number as the direct appeal of the judgment.
been affirmed on appeal only after we grant permission. Dansby v. State, 343 Ark. 635, 37 S.W.3d
599 (2001) (per curiam). 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 burden is on the
petitioner to show a fundamental error of fact extrinsic to the record. Larimore v. State, 327 Ark.
271, 938 S.W.2d 818 (1997).
The petitioner here argues only that he should have been granted leave to proceed with a
belated appeal of the order that denied his Rule 37.1 petition. As the petition raises no ground for
relief cognizable in a coram nobis proceeding, the petition is denied.2
Petition denied.
2
In a response to the response filed by the State to the petition, petitioner adds that the evidence was
insufficient to sustain the judgment in his case and that there was trial court error. Even if we were to
consider the claims raised in the response to the response, petitioner has stated no ground to issue a writ
of error coram nobis.
-2-
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