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                   SUPREME COURT OF ARKANSAS
                                         No.   CR-05-1381

                                                     Opinion Delivered March   12, 2015
DANNY LEE HOOPER
                                PETITIONER           PRO SE SECOND PETITION TO
                                                     REINVEST JURISDICTION IN THE
V.                                                   CIRCUIT COURT TO CONSIDER A
                                                     PETITION FOR WRIT OF ERROR
STATE OF ARKANSAS                                    CORAM NOBIS [WASHINGTON
                              RESPONDENT             COUNTY CIRCUIT COURT, NO. 72CR-
                                                     05-761]


                                                     PETITION DENIED.


                                         PER CURIAM

       In 2005, petitioner Danny Lee Hooper was found guilty by a jury of three counts of rape,

kidnapping, robbery, residential burglary, and third-degree battery and sentenced as a habitual

offender to an aggregate sentence of 1,320 months’ imprisonment. The Arkansas Court of

Appeals affirmed, noting that evidence was adduced at trial, which included the victim’s

testimony and DNA testing, that petitioner had entered the victim’s house at night and engaged

in vaginal and anal intercourse with her. Hooper v. State, CR-05-1381 (Ark. App. Aug. 30, 2006)

(unpublished).    Subsequently, petitioner filed in the trial court a timely petition for

postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2005). The petition

was denied. Petitioner appealed from the order to this court, and we dismissed the appeal as it

was clearly without merit. Hooper v. State, CR-07-816 (Ark. Nov. 29, 2007) (unpublished per

curiam).

       In 2013, petitioner filed in this court a petition and an amended petition requesting that

this court reinvest jurisdiction in the trial court so that he could proceed with a petition for writ
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of error coram nobis. We denied the relief sought. Hooper v. State, 2014 Ark. 16 (per curiam).

       On January 14, 2015, petitioner filed a second petition in this court to reinvest

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

petition and a subsequent amendment to it are now before us. We find no basis stated in the

petition to warrant issuance of the writ and thus deny leave to proceed in the trial court.

       A 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. Chestang v. State, 2014 Ark. 477 (per curiam); Charland v. State,

2013 Ark. 452 (per curiam); Cromeans v. State, 2013 Ark. 273 (per curiam). This court will grant

such permission only when it appears the proposed attack on the judgment is meritorious.

Echols v. State, 354 Ark. 414, 418, 125 S.W.3d 153, 156 (2003). In making such a determination,

we look to the reasonableness of the allegations of the petition and to the existence of the

probability of the truth thereof. Id.

       A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial

than its approval. Cromeans, 2013 Ark. 273; Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. The

writ is allowed only under compelling circumstances to achieve justice and to address errors of

the most fundamental nature. McDaniels v. State, 2012 Ark. 465 (per curiam). We have held that

a writ of error coram nobis is 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. Charland, 2013 Ark. 452; Cromeans, 2013 Ark. 273; Pitts v. State, 336 Ark. 580, 986 S.W.2d



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407 (1999) (per curiam). 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 circuit court and which, through no negligence or fault of the defendant, was not brought

forward before rendition of judgment. Mooney v. State, 2014 Ark. 453, 447 S.W.3d 121 (per

curiam); Cloird v. State, 2011 Ark. 303 (per curiam). The petitioner has the burden of

demonstrating a fundamental error of fact extrinsic to the record. Williams v. State, 2011 Ark.

541 (per curiam). Coram-nobis proceedings are attended by a strong presumption that the

judgment of conviction is valid. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771; Carter v. State,

2012 Ark. 186 (per curiam); Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984) (citing Troglin v.

State, 257 Ark. 644, 519 S.W.2d 740 (1975)).

       As he did in his original petition to this court, petitioner argues as grounds for the writ

that he was incompetent at the time of trial and was denied his right to present an insanity

defense by his attorney’s ineffectiveness and the failure of the State and others to reveal certain

medical reports. Petitioner attributes his impaired intellectual functioning to a gunshot wound

to the head that he suffered some years before trial and an accident on an all-terrain motor

vehicle. He alleges that he now has newly discovered evidence to support his claims for the writ

that is contained in those newly acquired medical records pertaining to the effects of the injuries,

particularly the gunshot injury. He contends that the psychiatrist, Dr. Robin Ross, who

conducted a pretrial examination on him, had some medical records when she made her

diagnosis but that she ignored the records he has now obtained and that Dr. Ross failed to

secure them. Petitioner avers that the recently obtained medical records from the prior



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examinations and prior psychological testing demonstrate that Dr. Ross’s conclusion that he was

competent was wrong. He urges this court to accept this newly discovered evidence as proof

that a viable insanity defense could have been raised at trial if Dr. Ross and the prosecuting

attorney at his trial had not wrongfully withheld the evidence in violation of Brady v. Maryland,

373 U.S. 83 (1963). Petitioner further faults his attorney for not obtaining the evidence and

mounting a successful insanity defense.

       We first note that, to the extent that the claims raised were intended by petitioner to be

allegations of ineffective assistance of counsel, such allegations are not cognizable in a coram-

nobis proceeding. Mackey v. State, 2014 Ark. 491 (per curiam). Assertions of inadequate counsel

are properly brought pursuant to Rule 37.1. Schrader v. State, 2014 Ark. 379, 441 S.W.3d 1 (per

curiam). We have consistently held that a petition for writ of error coram nobis is not a

substitute for raising claims of ineffective assistance of counsel under Rule 37.1. Mackey, 2014

Ark. 491; Mason v. State, 2014 Ark. 288, 436 S.W.3d 469 (per curiam).

       Prior to trial, petitioner was examined by Dr. Ross pursuant to a motion filed by the

defense. Dr. Ross diagnosed him with drug and alcohol dependency and an antisocial

personality disorder, and she concluded that petitioner did not have a mental disease or defect

when he committed the crimes, did not lack the capacity to appreciate the criminality of his

conduct, and did not lack the capacity to conform his conduct to the requirements of the law.

The gunshot injury to petitioner’s head was discussed at a pretrial hearing, but, at that time, the

trial court declined to grant a continuance to allow petitioner to obtain the records to be

submitted to the doctor.



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       This court held when the first coram-nobis petition was denied that petitioner had

presented nothing in his petition to establish that there would have been a different outcome at

trial if the doctor had the medical records inasmuch as the doctor determined that petitioner was

competent at the time of the offense and at the time of trial. We further noted that petitioner

had not shown that any particular information in the medical report would have caused the

doctor to reach a different assessment. While insanity at the time of trial is a ground for the writ,

the burden is on the petitioner who claims a history of mental defect or illness to overcome the

strong presumption that the judgment was valid. Accordingly, we held when the original coram-

nobis petition was denied that the mere fact that petitioner may have had a head injury or

injuries before Dr. Ross examined him was not, in itself, sufficient cause to warrant issuance of

the writ.

       In this second petition to reinvest jurisdiction to consider a petition for writ of error

coram nobis, petitioner reiterates the claims raised in the first petition. The sole difference in

the instant petition is that petitioner states that he has obtained the medical records that were

not available to him at the time of trial.

       Having reviewed the second petition, we again do not find grounds for the writ. With

respect to whether there was a violation of Brady, failure to disclose evidence favorable to the

defense is a Brady violation, and such a violation falls within one of the four categories of coram-

nobis relief. Mooney, 2014 Ark. 453, 447 S.W.3d 121 (citing Bannister v. State, 2014 Ark. 59 (per

curiam)). The United States Supreme Court held in Brady that “the suppression by the

prosecution of evidence favorable to an accused upon request violates due process where the



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evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the

prosecution.” Brady, 373 U.S. at 87. In Strickler v. Greene, 527 U.S. 263 (1999), the Court

revisited Brady and declared that evidence is material “if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the proceeding would have been

different.” 527 U.S. at 280 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). There are

three elements of a Brady violation: (1) the evidence at issue must be favorable to the accused,

either because it is exculpatory or because it is impeaching; (2) the evidence must have been

suppressed by the State, either willfully or inadvertently; (3) prejudice must have ensued.

Strickler, 527 U.S. 263; Watts v. State, 2013 Ark. 485 (per curiam).

       Here, there is nothing to demonstrate that the information concerning the medical

reports at issue was withheld from the defense. Appellant clearly knew at the time of trial that

the examinations had occurred, and he provides no factual support for the claim that the medical

reports resulting from those examinations were somehow withheld. When there is no showing

that the State withheld favorable information from the defense, there is no violation of Brady.

See Mooney, 2014 Ark. 453, 447 S.W.3d 121.

       As to whether the reports constitute newly discovered evidence that forms a basis for

granting the writ, an assertion that there is newly discovered evidence alone is not a basis for

coram-nobis relief. Webb v. State, 2009 Ark. 550 (citing McArty v. State, 335 Ark. 445, 983

S.W.2d 418 (1998) (per curiam)). There is a distinction between fundamental error, which

requires issuance of the writ, and newly discovered information, which might have created an

issue to be raised at trial had it been known. Mosley v. State, 333 Ark. 273, 968 S.W.2d 612 (1998)



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(per curiam). Even if, as petitioner alleges, the medical reports might have provided information

to Dr. Ross and to the defense concerning his prior injuries and the findings of other medical

professionals concerning his mental state in the past, the fact remains that Dr. Ross found in her

pretrial examination that petitioner was competent. Moreover, petitioner has not offered facts

to show that entry of the judgment would have been precluded if Dr. Ross, his attorney, the

prosecutor, or any other party had possessed the medical records prior to trial. See Scott v. State,

2010 Ark. 363 (per curiam) (holding that information within petitioner’s knowledge and available

at the time of trial was not a ground for the writ inasmuch as it could have been utilized at trial

and, in any event, there was no showing that the information would have precluded entry of the

judgment had it been utilized at trial).

       Petitioner has not established that the information contained in the medical reports that

he contends is newly discovered exculpatory evidence is of such a fundamental nature that it can

be said that there is a reasonable probability that the judgment would not have been rendered

had the information contained in the reports been brought out at trial because it would have

overcome the finding of Dr. Ross that petitioner was competent or that it could have been the

basis for a successful insanity defense. Petitioner has not shown that there was any information

extrinsic to the record that, even if it had been utilized at the time of trial, would somehow have

created an issue sufficient to call into question the outcome of the trial. For that reason,

petitioner has fallen short of establishing a ground to issue a writ of error coram nobis. See

Thompson v. State, 2012 Ark. 339 (per curiam).

       Petition denied.
       Danny Lee Hooper, pro se petitioner.
       Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for respondent.

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