Powell v. State
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Cite as 2009 Ark. 117 (unpublished)
ARKANSAS SUPREME COURT
No.
CACR 03-862
Opinion Delivered
HOWARD POWELL
Petitioner
v.
STATE OF ARKANSAS
Respondent
March 5, 2009
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]
PETITION DENIED.
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
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
Cite as 2009 Ark. 117 (unpublished)
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). 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.
of the judgment.
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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