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                         SUPREME COURT OF ARKANSAS.
                                            No.   CR-00-587


LEONARD NOBLE                                         Opinion Delivered December   15, 2016

                    PETITIONER PRO SE THIRD PETITION TO
                               REINVEST JURISDICTION IN THE
V.                             TRIAL COURT TO CONSIDER A
                               PETITION FOR WRIT OF ERROR
                               CORAM NOBIS
 STATE OF ARKANSAS             [SEBASTIAN COUNTY CIRCUIT
                               COURT, GREENWOOD DISTRICT,
                   RESPONDENT NO. 66CR-98-72]
                                                      PETITION DENIED.


                                            PER CURIAM


           In 1999, petitioner Leonard Noble was found guilty by a jury of residential burglary

 and rape and was sentenced as a habitual offender to an aggregate sentence of 900 months’

 imprisonment. The Arkansas Court of Appeals affirmed. Noble v. State, CR-00-587 (Ark.

 App. Sept. 19, 2001) (unpublished) (original docket no. CACR 00-587). On August 22,

 2016, Noble filed this, his third pro se petition requesting this court to reinvest jurisdiction

 in the trial court to consider a petition for writ of error coram nobis.1

           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




           1
               For clerical purposes, the motion was assigned the same docket number as the direct
 appeal.
                                    Cite as 2016 Ark. 463

before rendition of the judgment. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. The

petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the

record. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.

       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

to address 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. Howard

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

       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. Newman, 2009 Ark. 539, 354 S.W.3d 61. A writ of

error coram nobis is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17

S.W.3d 87 (2000). Coram-nobis proceedings are attended by a strong presumption that the

judgment of conviction is valid. Westerman v. State, 2015 Ark. 69, at 4, 456 S.W.3d 374,

376.

       Noble seeks leave to proceed in the trial court for a writ of error coram nobis,

claiming the following: that he was not identified as the rapist by the victim and no witness

identified him; that the prosecutor withheld doctor’s statements, medical examination

results, results of “testable” DNA, and comparisons of hair results, particularly those labeled

“Q-11”; that there was no medical staff testimony; that the prosecutor told his trial counsel

there was no “testable” DNA but there was “testable” evidence from the rape kit; that the

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rape-kit results were withheld, which would have shown the victim was not penetrated and

that no rape had occurred; that trial counsel requested testable material evidence and the

results of the medical examination but the State withheld the evidence, specifically the

results of the rape kit and the hair; and that “Linda” was subpoenaed but was never called

to testify because the “prosecutor [ ] told [t]rial [a]ttorney not to call her[,]” which entitled

him to relief.   Noble has previously petitioned this court twice for leave to reinvest

jurisdiction in the trial court to proceed with a petition for coram-nobis relief, and this court

has denied both petitions. See Noble v. State, 2015 Ark. 215, 462 S.W.3d 341 (per curiam);

Noble v. State, 2014 Ark. 332, 439 S.W.3d 47 (per curiam).

       In his first petition to reinvest jurisdiction with the trial court to entertain a petition

for a writ of error coram nobis, Noble argued that the trial court erred by not ordering a

psychological evaluation and not holding a hearing on his mental condition and for not

allowing the defense to hire an expert witness to examine the physical evidence adduced at

trial. This court found that a claim that the trial court made errors at trial does not fall

within one of the four categories that warrant coram-nobis relief nor do claims concerning

the sufficiency of the evidence or the credibility of witnesses. See Noble, 2015 Ark. 215, at

3–4, 462 S.W.3d at 344–45. Noble argued that the State withheld evidence that there was

no evidence to establish his guilt; no testimony about evidence of rape from any medical

staff member; and no DNA evidence. Noble, 2014 Ark. 332, at 3, 439 S.W.3d at 50. He

further argued that neither the victim nor any other witness was able to identify him as the

rapist and that the state crime-laboratory report and rape kit did not reveal a match or any

sign of rape to the victim. See id. This court found that Noble failed to allege that the

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records he claimed were withheld contained any particular exculpatory information that was

not known at the time of trial and could not have been secured by the defense because the

State had somehow concealed it and that Noble’s vague claims were insufficient to satisfy

his burden that the writ should issue. Noble, 2014 Ark. 332, at 4-5, 439 S.W.3d at 50.

Furthermore, to the extent that Noble’s assertions concerning the alleged suppression of

exculpatory evidence constituted claims that the evidence was insufficient to sustain the

judgment, claims concerning sufficiency of the evidence are not cognizable in coram-nobis

proceedings. Id.

      In his second petition to reinvest jurisdiction, Noble argued that he was insane at the

time of trial; however, Noble’s mere statement that he suffered from mental problems from

a young age and an affidavit stating that he had mental problems were insufficient to

demonstrate incompetence at the time of trial. Noble, 2015 Ark. 215, at 3, 462 S.W.3d at

344. Noble again argued that the State withheld evidence from the defense. Specifically,

Noble focused on a hair labeled “Q-11” and that “Q-11” would have established his

innocence. Noble, 2015 Ark. 215, at 4–5, 462 S.W.3d at 345. At trial, testing on “Q-11”

was discussed, and its results were known and discussed at the time of trial. Id. Again,

Noble argued that the State suppressed medical and doctor’s reports that would have proven

the victim was not raped. Noble, 2015 Ark. 215, at 5, 462 S.W.3d at 345–46. Specifically,

Noble claimed that the State did not present the evidence fairly—not that the State hid the

evidence from the defense. Id. Such a claim is one of the sufficiency of the evidence to

sustain the judgment and, as this court found, is not within the purview of a coram-nobis

proceeding. Noble, 2015 Ark. 215, at 5, 462 S.W.3d at 346. Noble further argued that

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counsel was ineffective, a claim that is clearly not within the purview of a coram-nobis

proceeding. Noble, 2015 Ark. 215, at 6, 462 S.W.3d at 346.

       In this present petition, Noble again fails to allege any facts sufficient to distinguish

his current claims from his two prior attempts seeking coram-nobis relief, excepting one

claim regarding the subpoena of Linda as a witness.2 His claims on the evidence and results

were known at the time of trial, and the majority of his claims attack the sufficiency of the

evidence to sustain his judgment and are not within the purview of a coram-nobis

proceeding. See Noble, 2015 Ark. 215, at 5, 462 S.W.3d at 346; Noble, 2014 Ark. 332, at

4–5, 439 S.W.3d at 50. When an issue could have been raised at trial or is cognizable in

some other legal proceeding, that issue is not cognizable in a later error-coram-nobis

proceeding. Chatmon v. State, 2015 Ark. 417, at 7, 473 S.W.3d 542, 547 (per curiam). Due

process does not require this court to entertain an unlimited number of petitions to reinvest

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

particular case. Swanigan v. State, 2016 Ark. 109 (per curiam); see Rodgers v. State, 2013 Ark.

294, at 3–4 (per curiam) (“[A] court has the discretion to determine whether the renewal

of a petitioner’s application for the writ, when there are additional facts presented in support



       2
          To the extent Noble’s generalized claim that the State withheld the rape kit and hair
results could arguably be deemed a new claim, it is wholly inconsistent with the other claims
made in his present petition, as well as claims in his prior petitions. Noble clearly was given
the results of the rape kit because he claimed that the results were not a “match up” to him
in his first petition to reinvest jurisdiction in the trial court. Noble, 2014 Ark. 332, at 4, 439
S.W.3d at 50. In his second petition to reinvest jurisdiction in the trial court, this court
found that Noble was also clearly given the results of the hair testing, which was also known
at the time of trial. Noble, 2015 Ark. 215, at 5, 462 S.W.3d at 345.


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of the same grounds, will be permitted.”). Here, however, Noble does raise one new claim

regarding a witness he contended had been subpoenaed, Linda, and the failure of his trial

counsel to call her as a witness—couched in terms that the prosecutor told trial counsel not

to call the witness. Whether Noble is making a claim that the prosecutor somehow withheld

the witness thus making a Brady v. Maryland, 373 U.S. 83 (1963)3 claim or whether the

claim is an ineffective-assistance-of-counsel claim, the claim remains conclusory in nature

and fails to establish that there was some error. Mosley v. State, 333 Ark. 273, 968 S.W.2d

612 (1998); see Williams v. State, 2016 Ark. 92, 485 S.W.3d 254 (per curiam) (ineffective-

assistance-of-counsel claims are not cognizable in error-coram-nobis proceedings). In order

to carry his burden to show the writ is warranted, a petitioner must demonstrate that the

State had specific evidence that would have been sufficient to have prevented rendition of

the judgment. Harris v. State, 2010 Ark. 489 (per curiam). All of Noble’s claims remain

vague regarding the allegations of withheld evidence and are insufficient to meet that

burden. Noble has not stated any cognizable claim for relief because all of his allegations




       3
         To establish a Brady violation, three elements are required: (1) the evidence at issue
must be favorable to the accused, either because it is exculpatory or because it is impeaching;
(2) that evidence must have been suppressed by the State, either willfully or inadvertently;
(3) prejudice must have ensued. State v. Larimore, 341 Ark. 397, 404, 17 S.W.3d 87, 91
(2000). Furthermore, assuming that the alleged withheld evidence meets the requirements
of a Brady violation and is both material and prejudicial, in order to justify issuance of the
writ, the withheld material evidence must also be such as to have prevented rendition of the
judgment had it been known at the time of trial. Smith v. State, 2015 Ark. 188, at 4–5, 461
S.W.3d 345, 349 (per curiam). To merit relief, a petitioner must demonstrate that there is
a reasonable probability that the judgment of conviction would not have been rendered, or
would have been prevented, had the information been disclosed at trial. Id.

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concern a matter which was known or could have been known at the time of trial and

addressed at that time. Watts v. State, 2013 Ark. 485, at 5 (per curiam).

       Petition denied.




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