Digitally signed by Susan P. Williams Reason: I attest to the accuracy and integrity of Cite as 2019 Ark. 268 this document SUPREME COURT OF ARKANSAS Date: No. CR-02-228 2022.07.18 12:23:41 -05'00'

JAMES E. SMITH Opinion Delivered October 10, 2019 PETITIONER

V. PRO SE SEVENTH PETITION TO REINVEST JURISDICTION IN THE STATE OF ARKANSAS TRIAL COURT TO CONSIDER A RESPONDENT PETITION FOR WRIT OF ERROR CORAM NOBIS AND MOTION TO REBUT THE STATE’S RESPONSE [JEFFERSON COUNTY CIRCUIT COURT, NO. 35CR-99-724]

PETITION DENIED; MOTION MOOT.

KAREN R. BAKER, Associate Justice

Pending before this court is petitioner James E. Smith’s pro se seventh petition to

reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis.

Also pending before this court is Smith’s motion to rebut the State’s response to his petition.

Because Smith has failed to raise claims that are cognizable in coram nobis proceedings, we

deny the petition, which renders the motion moot.

In 2001, a jury found Smith guilty of two counts of rape for engaging in sexual

intercourse or deviate sexual activity with his girlfriend’s two daughters who were both

under the age of fourteen when the sexual abuse occurred. In his seventh petition, Smith

raises new allegations that his trial counsel was ineffective and conflicted, failed to conduct

an adequate investigation, and intentionally withheld evidence that the two victims and their mother had a motive to fabricate rape accusations.1 Because the proposed claims Smith

raised in his seventh petition are based on allegations that are not cognizable in coram nobis

proceedings, we deny his seventh petition to reinvest jurisdiction in the trial court.

The petition for leave to proceed in the trial court is necessary because the trial court

can entertain a petition for writ of error coram nobis after a judgment has been affirmed on

appeal only after we grant permission. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771. A

writ of error coram nobis is an extraordinarily rare remedy. Id. Coram nobis proceedings

are attended by a strong presumption that the judgment of conviction is valid. Id.; Westerman

v. State, 2015 Ark. 69, 456 S.W.3d 374. The function of the writ is to secure relief from a

judgment rendered while there existed some fact that would have prevented its rendition if

it had been known to the trial court and which, through no negligence or fault of the

defendant, was not brought forward before rendition of the judgment. Roberts, 2013 Ark. 56, 425 S.W.3d 771. The petitioner has the burden of demonstrating a fundamental error

of fact extrinsic to the record. Id.

1 Smith’s first three pro se petitions to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis challenged his convictions on the basis that the two victims had made inconsistent statements, the trial court erroneously admitted evidence, the prosecution fabricated evidence, and the evidence was insufficient to sustain the conviction. Smith’s first petition was denied, and his second and third petitions were dismissed as successive. Smith v. State, 2012 Ark. 403 (per curiam); Smith v. State, 2014 Ark. 246, 456 S.W.3d 731 (per curiam); Smith v. State, 2015 Ark. 188, 461 S.W.3d 345 (per curiam). In Smith’s fourth petition to reinvest jurisdiction for error coram nobis relief, he alledged that his convictions were based on an invalid arrest warrant and an invalid information. The petition was denied. Smith v. State, 2016 Ark. 201, 491 S.W.3d 463 (per curiam). This court dismissed Smith’s fifth petition on August 3, 2017, without written opinion. In Smith’s sixth petition to reinvest jurisdiction for coram nobis relief, he challenged the validity of his signed Miranda form and contended that the investigator gave false testimony regarding the date that the form had been signed. That petition was also denied. Smith v. State, 2018 Ark. 37. 2 The writ is allowed only under compelling circumstances to achieve justice and to

address errors of the most fundamental nature. Id. A writ of error coram nobis is available

for addressing certain errors that are found in one of four categories: (1) insanity at the time

of trial, (2) a coerced guilty plea, (3) material evidence withheld by the prosecutor, or (4) a

third-party confession to the crime during the time between conviction and appeal. Id.;

Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.

It is well settled that ineffective-assistance-of-counsel claims are not cognizable in

error coram nobis proceedings. Osburn v. State, 2018 Ark. 341, 560 S.W.3d 774. Coram

nobis proceedings are not to be used as a substitute for raising claims of ineffective assistance

of counsel under Arkansas Rule of Criminal Procedure 37.1 and are not interchangeable

with proceedings under the Rule, which is the remedy in Arkansas for asserting allegations

of ineffective assistance of counsel. Id. The writ is not available when a mistake or error of

law is made by trial counsel. Id. Likewise, Smith’s claim that counsel was operating under a

conflict of interest constitutes an ineffective-assistance-of-counsel claim, which is outside

the purview of coram nobis proceedings. Nelson v. State, 2014 Ark. 91, 431 S.W.3d 852.

Smith attempts to use a coram nobis proceeding to raise new claims of ineffective

assistance of counsel and to reassert a conflict-of-interest claim, both of which were either

raised and rejected or should have been raised in a previous Rule 37.1 proceeding. As with

his first six petitions, Smith has again asserted claims that are not cognizable in a petition to

reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis.

Petition denied; motion moot.

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