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                    SUPREME COURT OF ARKANSAS.
                                          No.   CR-91-206


                                                   Opinion Delivered April   6, 2017
STEVEN LARON MCARTHUR
                 PETITIONER
                              PRO SE SECOND PETITION TO
V.                            REINVEST JURISDICTION IN THE
                              TRIAL COURT TO CONSIDER A
 STATE OF ARKANSAS            PETITION FOR WRIT OF ERROR
                   RESPONDENT CORAM NOBIS
                              [LONOKE COUNTY CIRCUIT COURT,
                              NO. 43CR-90-22]

                                                   PETITION DENIED.


                                         PER CURIAM

        Petitioner Steven Laron McArthur was found guilty in 1991 by a jury of capital

 murder in the death of Rodney Spence. He was sentenced to life imprisonment without

 parole. We affirmed. McArthur v. State, 309 Ark. 196, 830 S.W.2d 842 (1992).

        McArthur has now filed in this court his second pro se petition to reinvest jurisdiction

 in the trial court to consider a writ of error coram nobis. 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, at 11, 425 S.W.3d 771, 778.

        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, at 4, 456 S.W.3d 374, 376. 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
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negligence or fault of the defendant, was not brought forward before rendition of the

judgment. Roberts, 2013 Ark. at 11, 425 S.W.3d at 778. The petitioner has the burden of

demonstrating a fundamental error of fact extrinsic to the record. Id.

       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.

       Before addressing the allegations in McArthur’s petition, a brief summary of the facts

and evidence adduced at trial is necessary. On January 21, 1990, a hunter discovered the

body of sixteen-year-old Rodney Spence in a ditch in north Lonoke County. Spence had

been shot twice in the head at close range. Spence’s father testified that on the afternoon

of January 20, 1990, his son had left home to go to town, driving a 1986 red Ford Ranger,

with the understanding that he would be home by 10:00 p.m. that night. Spence’s uncle

testified that he saw Spence at approximately 6:45 p.m., and Spence told him that he was

going to Cabot, Arkansas. When Spence did not return home by 10:30 p.m., his parents

became worried, and they reported him missing at 12:30 a.m. on January 21, 1990. Spence’s

body was discovered on the same day at approximately 1:00 p.m.

       On January 23, 1990, a Texas patrolman with the Plano Police Department pulled

over a red Ford Ranger with Arkansas plates after hearing a national broadcast to be on the

lookout for the vehicle. Donald Hawley, the driver of the truck, initially informed the

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Texas authorities that he and McArthur had been staying together in Cabot, Arkansas, the

past weekend. Hawley told authorities that while the two were in Cabot, McArthur showed

up driving the red truck and that the two of them decided to drive to Dallas and were

staying with McArthur’s sister, Robin. Hawley also informed police that a pistol was located

in Robin’s apartment in Dallas. The Plano police obtained and executed a search warrant

for Robin’s apartment, where they found a gun in a nightstand drawer.           Thereafter,

McArthur and Hawley were taken into custody.

       Hawley eventually pleaded guilty to capital murder and testified at McArthur’s trial

that McArthur had approached Spence in the parking lot of a grocery store in Cabot.

According to Hawley, he and McArthur arranged for Spence to give them a ride to a liquor

store and that Spence drove them to two liquor stores and a convenience store. When

Spence went inside the convenience store, McArthur informed Hawley that he was going

to persuade Spence to take them to a friend’s house, and McArthur instructed Hawley to

act sick when McArthur prompted him. Hawley further testified that the two planned to

steal Spence’s truck. McArthur directed Spence to a remote location whereupon McArthur

told Spence that Hawley “looked sick.” McArthur and Hawley got out of the truck on the

passenger side and crouched by the truck. Spence also got out of the truck, and McArthur

asked Spence for assistance in getting Hawley back in the truck. Hawley then stepped

around the rear of the truck, aimed a gun at Spence, and instructed Spence to lie on the

ground and empty his pockets. Hawley testified that McArthur said, “Well, shoot him,”

and Hawley shot Spence in the head. The two men had begun to drag Spence’s body when

McArthur dropped the upper half of Spence’s body and stated that Spence was still alive.

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According to Hawley, McArthur stated that he did not want to see Spence suffer, and

McArthur fired a second shot into Spence’s head. Hawley and McArthur left Spence’s body

in the ditch where it was eventually discovered. After killing Spence, Hawley and McArthur

took Spence’s truck and left for Dallas. McArthur, 309 Ark. at 199–200, 830 S.W.2d at 843–

44.

      At trial, the parties stipulated that the gun found in the nightstand drawer was the

same weapon that was used to murder Spence, and McArthur testified at trial that the gun

belonged to his father. McArthur testified on his own behalf and denied taking part in any

plan to steal Spence’s truck, and he denied taking part in the murder. McArthur testified

that after murdering Spence, Hawley forced him to exit the truck and assist in moving

Spence’s body. McArthur’s testimony was corroborated by a county-jail inmate who

testified that he overheard Hawley admitting being the sole perpetrator of the crime. The

jury found McArthur guilty of capital murder.

      In his first petition for coram nobis relief filed in this court, McArthur asserted that

he had discovered new evidence that consisted of an undated letter from Hawley forwarded

to McArthur’s mother wherein Hawley admitted that he had lied about McArthur’s firing

the second shot and instead stated that he had been the only shooter. In addition, McArthur

submitted a pretrial statement that Hawley had given to his attorney admitting that he had

fired both gunshots. McArthur alleged that the prosecution withheld Hawley’s pretrial

statement from the defense in violation of Brady v. Maryland, 373 U.S. 83 (1963). We

denied the petition, concluding that McArthur had not established a Brady violation and




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otherwise failed to state sufficient grounds to justify coram nobis relief. McArthur v. State,

2014 Ark. 367, at 5–6, 439 S.W.3d 681, 685 (per curiam).

       In this second petition for coram nobis relief, McArthur sets forth eleven grounds for

relief. McArthur asserts in his first five grounds for relief that new evidence has emerged

demonstrating his actual innocence; that this new evidence was withheld by investigating

officers; that Sheriff Isaac conspired to present false testimony; and that the prosecutors, Will

Feland and Larry Cook, were guilty of prosecutorial misconduct. In support of the grounds

for relief, McArthur presents an affidavit from his codefendant, Hawley, recanting his trial

testimony and asserting that Sheriff Isaac and the prosecutors conspired to ensure that

Hawley provided false testimony implicating McArthur in the murder despite Hawley’s

statements to the sheriff and the prosecutors that McArthur had not participated in a plan to

steal Spence’s truck and did not actively participate in Spence’s murder.1 Hawley further

contradicts McArthur’s own testimony and contends that the gun used in the murder did

not belong to McArthur’s father, but was a gun that Hawley had stolen from police and that

the sheriff and the prosecutor manufactured evidence that he and McArthur had used this

gun for target practice prior to the murder.

       McArthur further contends that he has discovered new evidence consisting of two

additional affidavits from alleged witnesses to Spence’s murder, Larry Stephens and Jackie




       1 Hawley’s affidavit was executed in August 2007, and according to an affidavit
executed by McArthur’s mother, Hawley did not forward his affidavit to McArthur’s
mother until October 30, 2015. There is no other explanation for Hawley’s eight-year
delay in disclosing this affidavit.

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Carlin.2 Stephens and Carlin provide identical affidavits which state that they were attending

a party in “a field located a few miles off highway 31 on Hefner Road” and approached a

road where they had heard people engaged in an argument. Carlin and Stephens further

assert that, while they could not clearly see the three individuals involved in this argument,

they were able to observe one of the three shoot another in the group and then force the

third person at gunpoint to move the body. According to Stephens and Carlin, they were

interviewed the following day by Deputy Sheriff Larry Jones and provided statements

consistent with the facts set forth in their affidavits. Based on the affidavits of Hawley and

the two alleged witnesses, McArthur contends that investigators, acting in concert with the

two prosecutors, suppressed exculpatory evidence provided by these witnesses and suborned

perjury.

       The wrongful withholding of material exculpatory evidence from the defense is a

violation of Brady and a ground for granting the writ. Noble v. State, 2015 Ark. 215, at 4,

462 S.W.3d 341, 345 (per curiam). 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. Id. (quoting Strickler v. Greene, 527 U.S. 263, 280 (1999)). 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. Id.     However, this court is not required to take claims of a Brady violation in a




       2   Carlin is currently incarcerated at Varner Unit where McArthur is also incarcerated.
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coram nobis petition at face value without substantiation. Ventress v. State, 2015 Ark. 181,

at 5, 461 S.W.3d 313, 316–17.

       A claim of recanted testimony, standing alone, is not cognizable in an error coram

nobis proceeding. Wilson v. State, 2016 Ark. 327, at 5, 499 S.W.3d 638, 640 (per curiam).

This is because a coram nobis proceeding is not a means to contradict a fact already

adjudicated. Carter v. State, 2016 Ark. 378, at 7, 501 S.W.3d 375, 381 (per curiam).

Hawley’s trial testimony and the testimony of other witnesses who observed Hawley and

McArthur’s behavior immediately after the murder supported the jury’s determination that,

rather than being coerced, McArthur had been a willing participant in the crime. Moreover,

a stipulation from the defense and McArthur’s testimony established that the gun belonged

to McArthur’s father.

       The resulting lack of credibility of the affidavits from the two alleged witnesses to

the murder therefore means that the affidavits fail to substantiate McArthur’s claim based on

Hawley’s recanted testimony. The affidavits of these two alleged witnesses are highly

questionable in that, among other things, there is no explanation why these two individuals

failed to report the murder in the first instance and waited over fifteen years to come

forward.   Furthermore, the authorities did not become aware that Spence had been

murdered until Spence’s body was discovered by a hunter in an isolated area several hours

after Stephens and Carlin had allegedly witnessed the commission of the crime. Since

Stephens and Carlin failed to report the crime, they fail to explain how the sheriff was aware

that they had been near the area where the murder had taken place such that the sheriff

interviewed them on the following day.

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       Even assuming that Stephens and Carlin witnessed the murder and gave statements

to the deputy sheriff, 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. Hooper v. State, 2015 Ark. 108, at 6, 458 S.W.3d

229, 233. To merit relief on a claim of a Brady violation, McArthur must demonstrate that

the alleged withheld evidence would have prevented the rendition of the judgment had it

been disclosed at trial. Noble v. State, 2014 Ark. 332, at 4, 439 S.W.3d 47, 50. McArthur’s

trial testimony and the testimony of a fellow inmate were consistent with the version of

events that are set forth in the affidavits of Stephens and Carlin. The jury apparently did

not believe McArthur’s testimony or the corroborating testimony, and it is unlikely that

testimony from these two witnesses, who did not take the trouble to report a murder, would

have changed the outcome of the trial.

       Other than the affidavits of Hawley and the two alleged witnesses, McArthur offers

no substantiation for his claims that investigators and the prosecutor suppressed material

exculpatory evidence outside McArthur’s own conclusory claims. Conclusory claims

concerning evidence omitted from the record are deficient as a basis for coram nobis relief

and do not establish that there is a reasonable probability that the outcome of the proceeding

would have been different if the State had disclosed any particular evidence to the defense.

Carter, 2016 Ark. 378, at 7, 501 S.W.3d at 381.

       In his sixth ground for relief, McArthur contends that the presiding judge was biased

because, according to McArthur, the judge’s son dated the victim’s cousin and was a

member of the same church as that of the victim’s family. To state a ground for the writ

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on the basis of judicial bias, a petitioner must show that there was a reasonable probability

that he or she 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 3–4, 473 S.W.3d 542, 545–46 (per curiam). A petitioner does not make the

necessary showing of fundamental error to support relief when there is no demonstration of

actual bias. Id. The mere fact that some rulings were adverse to a defendant is not enough

to demonstrate actual bias. Brown v. State, 2012 Ark. 399, at 5, 424 S.W.3d 288, 292.

Moreover, in coram nobis proceedings, a petitioner must demonstrate that the judge’s bias

manifested in a manner that was hidden and could not have been challenged at the time of

trial. See Chatmon, 2015 Ark. 417, at 3–4, 473 S.W.3d at 545–46. (noting that to the extent

that the court’s denial of the motion for new counsel demonstrated bias, the issue was not

one that was hidden and was addressed by the trial court).

       McArthur’s claim of judicial bias is based on allegations that the trial court made a

series of adverse rulings, including the denial of a motion for a change of venue; the

exclusion of the deposition of Dr. Marino, a psychiatrist who evaluated Hawley; the refusal

to grant a mistrial; and by allegedly providing improper jury instructions. The trial court’s

rulings on change of venue and the exclusion of Dr. Marino’s deposition were issues raised

at trial and affirmed on appeal. McArthur, 309 Ark. at 201–05, 830 S.W.2d at 844-46. The

remainder of McArthur’s judicial-bias allegations also consist of matters that were not

extrinsic to the record. McArthur’s judicial-bias claim is nothing more than a claim of trial

court error, which is not cognizable in a coram nobis proceeding. Johnson v. State, 2015

Ark. 170, at 5, 460 S.W.3d 790, 794 (per curiam). By their very nature, claims of trial error

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could have been settled at trial and on the record on direct appeal; therefore, allegations of

trial error, even if of constitutional dimension, are not within the purview of a coram nobis

petition. Id.

       McArthur next claims ineffective assistance of counsel as grounds for coram nobis

relief. Claims of ineffective assistance of counsel are not cognizable in a coram nobis

proceeding. Matthews v. State, 2016 Ark. 447, at 3–4, 505 S.W.3d. 670, 673 (per curiam).

Such claims are properly brought pursuant to Arkansas Rule of Criminal Procedure 37.1.

A petition for writ of error coram nobis is not a substitute for proceeding under Rule 37.1.

Id. This holds true even when the deadline for filing for Rule 37 relief has passed, as

fundamental fairness and due process do not require an unlimited opportunity to proceed

under Rule 37.1. Id.

       McArthur’s remaining claims include the following: that he was discriminated

against because a second attorney had not been appointed to represent him in a capital case;

that he was convicted of capital murder without being found guilty of the underlying

felony;3 that he has been denied due process because there is no remedy in the State of

Arkansas for an inmate who discovers new evidence after conviction that is not scientific in

nature; and that he had been precluded from assisting his attorney in a meaningful way due

to his being denied access to a law library while in custody.




       The record demonstrates that the jury was instructed in accordance with AMI Crim.
       3

1501-A, that a finding of capital murder must be based on a determination that McArthur
had committed the crime of robbery and that if the crime of robbery had not been proved
then McArthur could not be found guilty of capital murder.
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       These claims for relief are not cognizable in coram nobis proceedings. As stated

above, the function of the writ of error coram nobis 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, at 11, 425

S.W.3d at 778. McArthur has the burden of demonstrating a fundamental error of fact

extrinsic to the record. Id. Constitutional issues such as due-process and equal-protection

claims that could have been addressed at trial are not within the purview of the writ. Wallace

v. State, 2015 Ark. 349, at 11–12, 471 S.W.3d 192, 199–200 (per curiam). An issue that

was known at the time of trial and could have been addressed is not one cognizable in an

error coram nobis proceeding. Anderson v. State, 2012 Ark. 270, at 5–6, 423 S.W.3d 20,

25–26 (per curiam). Regarding McArthur’s claim that he has been denied due process with

respect to presenting new evidence in claims for postconviction relief, we have noted that

there is no constitutional right to a postconviction proceeding. Roberts v. State, 2013 Ark.

57, at 12, 426 S.W.3d 372, 378.

       Petition denied.




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