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                  SUPREME COURT OF ARKANSAS.
                                      No.   CR-95-985


                                                Opinion Delivered April   13, 2017
GREG HOGUE
                               PETITIONER
                                        PRO SE SECOND PETITION TO REINVEST
V.                                      JURISDICTION IN THE TRIAL COURT TO
                                        CONSIDER A PETITION FOR WRIT OF
STATE OF ARKANSAS                       ERROR CORAM NOBIS AND TO PROCEED IN
                             RESPONDENT FORMA PAUPERIS
                                        [PULASKI COUNTY CIRCUIT COURT, NO. 60CR-94-
                                        904]

                                                PETITION DENIED.

                                      PER CURIAM


       A jury found petitioner Greg Hogue guilty of capital murder in the death of Jess

 Brown for which he was sentenced to life imprisonment without parole. This court

 affirmed the judgment. Hogue v. State, 323 Ark. 515, 915 S.W.2d 276 (1996). On

 January 19, 2017, Hogue filed his second petition requesting this court to reinvest

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

       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



       1For clerical purposes, the motion was assigned the same docket number as the

 direct appeal.
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attended by a strong presumption that the judgment of conviction is valid. Id. 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 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 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.

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

for a second time, contending the State committed prosecutorial misconduct by

failing to disclose an intimate relationship between the prosecutor and the circuit

judge.2 Specifically, he contends that the failure of the prosecutor and the circuit




      2When     a petitioner files a successive application for coram nobis relief in this
court, it is an abuse of the writ to argue the same claims that have been addressed if
the petitioner does not allege new facts that are sufficient to distinguish his latest
claims from the prior claims. Wallace v. State, 2016 Ark. 400, at 11, 503 S.W.3d 754,
760 (per curiam). Hogue’s second application is not an abuse of the writ as he raises
wholly new claims. See Hogue v. State, 2011 Ark. 496 (per curiam) (Hogue requested
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judge to disclose the “exculpatory evidence” of their relationship violated his

constitutional rights and that the outcome of the trial would have been different

because the circuit judge favored the prosecutor during the entire trial court

proceedings by denying multiple defense motions and objections; the circuit judge

allowed extra preemptory strikes in favor of the prosecution; and the defense could

have filed a motion to have the circuit judge recuse himself from the case. Hogue also

argues that the State committed prosecutorial misconduct by failing to disclose that

the prosecutor was in an intimate relationship with the circuit judge when Hogue

filed his Rule 37.1 petition.3

       A Brady violation is established when material evidence favorable to the

defense is wrongfully withheld by the State. Pitts v. State, 336 Ark. 580, 986 S.W.2d

407 (1999) (per curiam). In Strickler v. Greene, 527 U.S. 263 (1999), the Supreme

Court revisited Brady and declared that when the petitioner contends that material

evidence was not disclosed to the defense, the petitioner must show that “there is a

reasonable probability that, had the evidence been disclosed to the defense, the result




the writ claiming Brady v. Maryland, 373 U.S. 83 (1963), violations involving five
specific documents.).
       3To the extent Hogue attempts to utilize the petition to reinvest to seek relief

from any error in his Rule 37 proceedings, the attempt fails because the function of
the writ is to secure relief from the judgment 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. See Newman, 2009 Ark. 539, 354 S.W.3d 61.

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of the proceeding would have been different.” Strickler, 527 U.S. at 280 (quoting

United States v. Bagley, 473 U.S. 667, 682 (1985)).

      In Strickler, the Court also set out the three elements of a true 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; and (3) prejudice must have ensued.

Strickler, 527 U.S. 263; see Howard, 2012 Ark. 177, 403 S.W.3d 38.

      Hogue’s claims are conclusory in nature and fail to establish that there was

error. Noble v. State, 2016 Ark. 463, 505 S.W.3d 687 (per curiam). In order to carry

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

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

judgment. Id. Hogue contends that the prosecutor and the circuit judge were in an

intimate relationship during the time of his trial yet he fails to demonstrate how that

relationship even qualifies as evidence and, if considered as evidence, whether that

evidence is material, much less, exculpatory. Moreover, the court is not required to

accept at face value the allegations of the petition. Chatmon v. State, 2015 Ark. 417,

at 2, 473 S.W.3d 542, 544 (per curiam). Hogue’s allegations are conclusory, and he

offers no factual substantiation that any specific, particular evidence was hidden from

the defense at the time of trial, nor does he identify any specific motions or rulings

that favored the prosecution or a specific extra preemptory strike and how the

outcome of the trial would have been different had any particular evidence been


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disclosed. Evans v. State, 2016 Ark. 377, at 5, 501 S.W.3d 819, 822–23 (per curiam).

Hogue fails to establish a Brady violation or to point to any prejudice that may have

ensued, which would warrant granting the petition.

       Hogue fails to raise a claim that falls within the purview of a coram nobis

proceeding because the error he claims is not an error found in one of the four above-

referenced categories of error, i.e., insanity at the time of trial, a coerced guilty plea,

material evidence withheld by the prosecutor, or a third-party confession.4 Howard,

2012 Ark. 177, 403 S.W.3d 38. None of the claims raised by Hogue demonstrate that

there was some fundamental error at trial or that there existed some fact that would

have prevented rendition of the judgment if it had been known to the trial court and

which, through no negligence or fault of his own, was not brought forward before

rendition of judgment.5 Newman, 2009 Ark. 539, 354 S.W.3d 61.

       Petition denied.




       4Althoughthe four categories are not set in stone, the remedy of coram nobis
remains an extraordinary remedy. See Strawhacker v. State, 2016 Ark. 348, 500
S.W.3d 716.
       5Hogue fails to make any allegation of judicial bias because he stated a claim of
prosecutorial misconduct for the State’s failure to disclose the alleged relationship.
Even had Hogue alluded to a claim of judicial bias, to state a ground for the writ on
that basis, 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, 2015 Ark. 417, at 3,
473 S.W.3d at 545. Hogue did not make any argument or showing of fundamental
error to support relief because he failed to demonstrate any actual bias with his
conclusory claims. Id.

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       HART, J. dissents.

       JOSEPHINE LINKER HART, Justice, dissenting. I respectfully dissent from this

court’s denial of Greg Hogue’s petition for writ of error coram nobis. Hogue contends that

the deputy prosecutor who prosecuted him and the circuit judge who presided over his trial

were in an intimate relationship during the time of his trial. Contrary to the majority’s

conclusion, Hogue has raised not only a claim of prosecutorial misconduct but also a claim

of judicial bias, which we have recently held falls within the purview of an error coram

nobis proceeding. McArthur v. State, 2017 Ark. 120 (per curiam). By engaging in a narrow,

cramped reading of Hogue’s petition, the court essentially treats two judicial bias claims

differently, even though both were raised in error coram nobis proceedings. Moreover,

Hogue’s claim that he was tried by a circuit judge who was in an intimate relationship with

the deputy prosecutor is a claim of actual bias, which is a fundamental error. 1 Chatmon v.

State, 2015 Ark. 417, at 3, 473 S.W.3d 542, 545 (per curiam) (stating that a petitioner does

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

demonstration of actual bias). I would consider the merits of Hogue’s judicial bias claim.




       1
        This court has discussed this relationship in other cases. See Lee v. State, 343 Ark.
702, 38 S.W.3d 334 (2001), mandate recalled, Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006).
