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                  SUPREME COURT OF ARKANSAS
                                        No.   CR-93-1096

                                                    Opinion Delivered   February 19, 2015


GEORGE L. RHOADES                                   PRO SE PETITION TO REINVEST
                               PETITIONER           JURISDICTION IN THE TRIAL COURT
                                                    TO CONSIDER A PETITION FOR WRIT
V.                                                  OF ERROR CORAM NOBIS, OR IN THE
                                                    ALTERNATIVE FOR LEAVE TO
STATE OF ARKANSAS                                   PROCEED IN THE TRIAL COURT
                             RESPONDENT             PURSUANT TO ARKANSAS CRIMINAL
                                                    PROCEDURE RULE 37.1, OR TO
                                                    RECALL MANDATE, OR FOR WRIT OF
                                                    CERTIORARI, AND MOTION FOR
                                                    APPOINTMENT OF COUNSEL [LITTLE
                                                    RIVER COUNTY CIRCUIT COURT,
                                                    NOS. 41CR-92-84, 41CR-92-85]


                                                    PETITION AND MOTION DENIED.


                                         PER CURIAM

       In 1993, petitioner George L. Rhoades was found guilty by a jury of two counts of capital

murder and sentenced to two concurrent terms of life imprisonment without parole. We

affirmed. Rhoades v. State, 319 Ark. 45, 888 S.W.2d 654 (1994). In 1999, petitioner petitioned

this court to reinvest the trial court with jurisdiction to consider a petition for writ of error

coram nobis in the case. The petition was denied. Rhoades v. State, CR-93-1096 (Ark. May 6,

1999) (unpublished per curiam).

       Now before us is petitioner’s second petition to reinvest jurisdiction in the trial court to

consider a petition for writ of error coram nobis. He also asks that the petition be considered

in the alternative as a petition to proceed in the trial court under Arkansas Rule of Criminal
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Procedure 37.1 (1993), or a motion to recall this court’s mandate issued on direct appeal, or a

petition for writ of certiorari.

       First, we note that it is not necessary under Rule 37.1 for petitioner to obtain this court’s

permission before filing a Rule 37.1 petition in the trial court. The Rule does not require that

this court grant leave to proceed. See Hill v. State, 2014 Ark. 57, at 3.

       Petitioner invokes Martinez v. Ryan, 132 S. Ct. 1309 (2012) and related cases, arguing that

he should be permitted to proceed under the Rule on the ground that the trial court denied him

his right to proceed under the Rule. He has appended to his petition a letter from the trial court

to him, dated January 30, 1995, erroneously informing him of the need to obtain this court’s

permission before filing a Rule 37.1 petition in the trial court. He also appended a letter to him

from one of our staff attorneys, dated February 9, 1995, declining to accept for filing a motion

for extension of time to file a Rule 37.1 petition. In the letter, petitioner is informed that it is

not necessary to seek leave from this court before proceeding in the trial court under the Rule.

As the mandate on direct appeal in petitioner’s case issued on December 30, 1994, the sixty-day

period allowed to file a Rule 37.1 petition in the trial court under Rule 37.2(c) expired February

28, 1995. Petitioner, therefore, could have filed a timely Rule 37.1 petition with the circuit clerk.

If relief was denied, an appeal could have been taken to this court. The instant petition is not

a substitute for abiding by procedural rules. See Gran v. Hale, 294 Ark. 563, 745 S.W.2d 129

(1988). Moreover, this court, under the Rule, does not review claims for leave to proceed under

the Rule in cases where a petitioner is not required to obtain leave of this court to proceed.

       With respect to the request for a writ of certiorari in which petitioner raises allegations



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of ineffective assistance of counsel, trial error, and error by this court in its decision on direct

appeal, petitioner could have raised his claims pertaining to the effectiveness of counsel in the

trial court in a timely petition under Rule 37.1. His opportunity to raise his claims of trial error

were, or could have been, properly raised at trial and on the record on direct appeal. Stewart v.

State, 2014 Ark. 419, 443 S.W.3d 538 (per curiam). His assertions of error by this court could

have been addressed by means of a timely filed petition for rehearing. See Miller v. State, 273 Ark.

508, 621 S.W.2d 482 (1981). While petitioner contends that the trial court wrongly declined to

consider his Rule 37.1 petition, he has not shown that certiorari will lie to provide a remedy for

any of the issues raised in the instant petition.

       As to the request to recall the mandate issued on direct appeal, this court has reserved

recalling mandates to certain circumstances that do not apply to petitioner’s case. In Lee v. State,

367 Ark. 84, 238 S.W.3d 52 (2006), this court identified three factors that must be met to recall

a mandate: (1) the presence of a defect in the appellate process; (2) a dismissal of proceedings

in federal court because of unexhausted state court claims; and (3) the appeal was a death case

that required heightened scrutiny. Petitioner has not met these three criteria. A petitioner who

does not met the criteria, including that the matter be a death-penalty case, is not entitled to

recall of the mandate. Isom v. State, 2011 Ark. 149 (per curiam) (citing Lee, 367 Ark. 84, 238

S.W.3d 52).

       Turning to petitioner’s request to reinvest jurisdiction in the trial court to consider a

petition for writ of error coram nobis, petitioner has not stated a ground for the writ. A writ of

error coram nobis is an extraordinarily rare remedy more known for its denial than its approval.



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Mackey v. State, 2014 Ark. 491 (per curiam). Coram-nobis proceedings are attended by a strong

presumption that the judgment of conviction is valid. Greene v. State, 2013 Ark. 251 (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 trial court and which,

through no negligence or fault of the defendant, was not brought forward before rendition of

the judgment. Id. The petitioner has the burden of demonstrating a fundamental error of fact

extrinsic to the record. Burks v. State, 2013 Ark. 188 (per curiam).

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

errors of the most fundamental nature. Mackey, 2014 Ark. 491; Cromeans v. State, 2013 Ark. 273

(per curiam). 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. Wright v. State, 2014 Ark. 25 (per curiam); Greene, 2013 Ark. 251.

       In his petition, petitioner does not contend that there is any specific ground for issuance

of the writ that can be said to be within one of the four categories for relief. Instead, he argues

ineffective assistance of counsel, trial error, errors by this court in its decision on direct appeal,

and the failure of the trial court to consider his Rule 37.1 petition. As stated, 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, and the

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



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Petitioner here has not met that burden. Claims of ineffective assistance of counsel, trial error,

and error by the appellate court are not within the purview of a coram-nobis proceeding. See

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

       Finally, petitioner asks that counsel be appointed to “perfect” his petition. As petitioner

has not stated a ground for relief under any of the remedies that he invokes, the motion for

counsel is denied.

       Petition and motion denied.

       George L. Rhoades, pro se petitioner.

       Dustin McDaniel, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for respondent.




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