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                    SUPREME COURT OF ARKANSAS.
                                          No.   CR-10-6


                                                   Opinion Delivered March   30, 2017
DANNY HENINGTON
                               PETITIONER
                              PRO SE PETITION TO REINVEST
V.                            JURISDICTION IN THE TRIAL COURT
                              TO CONSIDER A PETITION FOR WRIT
 STATE OF ARKANSAS            OF ERROR CORAM NOBIS
                              [BENTON COUNTY CIRCUIT COURT,
                   RESPONDENT NO. 04CR-07-1642]


                                                   PETITION DENIED.


                                         PER CURIAM

        In 2009, petitioner Danny Henington was found guilty by a jury of the rape of a

 child and was sentenced to 432 months’ imprisonment. The Arkansas Court of Appeals

 affirmed. Henington v. State, 2010 Ark. App. 619, 378 S.W.3d 196.

        Henington subsequently filed in the trial court a petition for postconviction relief

 pursuant to Arkansas Rule of Criminal Procedure 37.1 (2016) that was denied. We affirmed

 the order. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55.

        On December 20, 2016, Henington filed in this court a pro se petition to reinvest

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

 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 v. State, 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
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the judgment of conviction is valid. Green v. State, 2016 Ark. 386, 502 S.W.3d 524;

Westerman v. State, 2015 Ark. 69, at 4, 456 S.W.3d 374, 376; Roberts v. State, 2013 Ark. 56,

425 S.W.3d 771. 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. Newman, 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, 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

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. Howard

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

       As grounds for issuance of the writ, Henington contends that he was denied effective

assistance of counsel at his trial and that the trial court erred by failing to “bring forward”

certain evidence and by admitting into the record evidence that was inadmissible. The

assertions do not establish a ground for the writ.

       This court has repeatedly held that ineffective-assistance-of-counsel and trial-error

claims are not grounds for the writ. Green v. State, 2016 Ark. 386, 502 S.W.3d 524; White

v. State, 2015 Ark. 151, 460 S.W.3d 285. Claims of ineffective assistance of counsel are

properly raised in a timely petition for postconviction relief pursuant to Arkansas Rule of
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Criminal Procedure 37.1 (2016). Mason v. State, 2014 Ark. 288, 436 S.W.3d 469 (per

curiam). A petition for writ of error coram nobis is not a substitute for raising an issue under

Rule 37.1. Travis v. State, 2014 Ark. 82 (per curiam).

       As to the allegations of trial error, by its very nature, an issue concerning a trial court’s

ruling could have been settled in the trial court and on the record on direct appeal.

Accordingly, the allegation that the trial court made some mistake in its rulings, including

rulings concerning the admissibility of evidence, is not within the purview of a coram nobis

proceeding. Mason, 2014 Ark. 288, 436 S.W.3d 469. Also, some of the arguments of trial

error raised in this petition were raised on direct appeal. A coram nobis proceeding is not

a forum for the petitioner to relitigate appeal issues. Ventress v. State, 2015 Ark. 181, 461

S.W.3d 313 (per curiam); see also Watts v. State, 2013 Ark. 485 (per curiam) (This court

does not consider in a coram nobis action allegations that are an attempt to reargue issues

addressed on appeal.).

       Henington next contends that there was prosecutorial misconduct in his trial because

the State failed to bring forth the documentation that would have shown Henington to be

not guilty. Henington’s claims do not establish the existence of some fact extrinsic to the

record that was concealed from the defense by the State. The petitioner seeking to reinvest

jurisdiction in the trial court to proceed with a coram nobis petition bears the burden of

presenting facts to support the claims for the writ because an application for the writ must

make a full disclosure of specific facts relied on and not merely state conclusions as to the

nature of such facts. Howard, 2012 Ark. 177, 403 S.W.3d 38; see also Cloird v. State, 357

Ark. 446, 182 S.W.3d (2004). Henington’s assertions of prosecutorial misconduct are the
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type that could have been raised at trial; therefore, he has not asserted a ground for the writ.

See Chatmon v. State, 2015 Ark. 417, 473 S.W.3d 542 (per curiam).

       Henington further argues that the evidence adduced at his trial was not sufficient to

sustain the jury’s verdict and that there was evidence that could have been adduced at trial

to prove his innocence if trial counsel and the trial court had permitted the available

evidence to be presented to the jury.        Such arguments constitute a challenge to the

sufficiency of the evidence. We have held that issues concerning the sufficiency of the

evidence are not cognizable in coram nobis proceedings because the question of the

sufficiency of the evidence is to be settled at trial and on the record on direct appeal. Philyaw

v. State, 2014 Ark. 130 (per curiam).

       To the degree that it could be said that Henington is claiming that the trial court was

biased, to state a ground for the writ on the basis of judicial bias, a petitioner must show that

there was a reasonable probability that he would not have been convicted if an unbiased

judge had served, and an allegation of the mere appearance of impropriety is not sufficient.

Chatmon v. State, 2015 Ark. 417, at 3, 473 S.W.3d 542, 545 (per curiam). A petitioner does

not make the necessary showing of fundamental error to support relief where there is no

demonstration of actual bias.      Id.   Henington’s allegations are founded on whether

Henington agreed with the trial court’s rulings rather than a showing of actual bias. See

Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994) (holding that it was not error to

decline to issue the writ even where there was an appearance of impropriety when the

petitioner demonstrated no prejudice from the alleged bias).

       Petition denied.
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