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                 SUPREME COURT OF ARKANSAS
                                         No.   CR-05-1381

                                                     Opinion Delivered   January 16, 2014
DANNY LEE HOOPER                                     PRO SE PETITION AND AMENDED
                                PETITIONER           PETITION TO REINVEST
                                                     JURISDICTION IN THE CIRCUIT
v.                                                   COURT TO CONSIDER A PETITION
                                                     FOR WRIT OF ERROR CORAM NOBIS
STATE OF ARKANSAS                                    AND MOTIONS FOR APPOINTMENT
                              RESPONDENT             OF COUNSEL AND APPOINTMENT
                                                     OF PSYCHIATRIST [WASHINGTON
                                                     COUNTY CIRCUIT COURT, 72CR-05-
                                                     761]


                                                     PETITION AND AMENDED
                                                     PETITION DENIED; MOTIONS
                                                     MOOT.


                                          PER CURIAM

       In 2005, petitioner Danny Lee Hooper was found guilty by a jury of three counts of rape,

kidnapping, robbery, residential burglary, and third-degree battery and sentenced as a habitual

offender to an aggregate sentence of 1,320 months’ imprisonment. The Arkansas Court of

Appeals affirmed. Hooper v. State, CR-05-1381 (Ark. App. Aug. 30, 2006) (unpublished).

Subsequently, petitioner filed in the trial court a timely petition for postconviction relief pursuant

to Arkansas Rule of Criminal Procedure 37.1 (2005). The petition was denied. Petitioner

appealed from the order to this court, and we dismissed the appeal as it was clearly without

merit. Hooper v. State, CR-07-816 (Ark. Nov. 29, 2007) (unpublished per curiam).

       Petitioner has now filed here a petition and amended petition requesting that this court

reinvest jurisdiction in the trial court so that he may proceed with a petition for writ of error
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coram nobis. He has also filed a motion for appointment of counsel and a motion asking that

a psychiatrist be appointed to examine and consult with him in the coram-nobis proceeding. We

deny the petition and amended petition. As the petition and amended petition are denied, the

motions are moot.

       A petition for leave to proceed in the trial court is necessary because the circuit court can

entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal

only after we grant permission. Charland v. State, 2013 Ark. 452 (per curiam); Cromeans v. State,

2013 Ark. 273 (per curiam); Burks v. State, 2013 Ark. 188 (per curiam).

       A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial

than its approval. Cromeans, 2013 Ark. 273; Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. The

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

the most fundamental nature. McDaniels v. State, 2012 Ark. 465 (per curiam). We have held that

a writ of error coram nobis is available to address certain errors that are found in one of four

categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the

prosecutor, or a third-party confession to the crime during the time between conviction and

appeal. Charland, 2013 Ark. 452; Cromeans, 2013 Ark. 273; Pitts v. State, 336 Ark. 580, 986 S.W.2d

407 (1999) (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 circuit court and which, through no negligence or fault of the defendant, was not brought

forward before rendition of judgment. McFerrin v. State, 2012 Ark. 305 (per curiam); Cloird v.

State, 2011 Ark. 303 (per curiam).       The petitioner has the burden of demonstrating a



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fundamental error of fact extrinsic to the record. Williams v. State, 2011 Ark. 541 (per curiam).

Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction

is valid. Roberts v. State, 2013 Ark. 56, ___ S.W.3d ___; Carter v. State, 2012 Ark. 186 (per

curiam); Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984) (citing Troglin v. State, 257 Ark. 644,

519 S.W.2d 740 (1975)).

       As grounds for the writ, petitioner first contends that he was incompetent at the time of

trial and denied his right to present an insanity defense by his attorney’s ineffectiveness.

Petitioner attributes his impaired intellectual functioning to a gunshot wound to the head that

he suffered some years before trial. The allegation does not warrant issuance of a writ of error

coram nobis.

       Prior to trial, petitioner was examined by a psychiatrist pursuant to a motion filed by the

defense. The psychiatrist diagnosed him with drug and alcohol dependency and antisocial

personality. The psychiatrist further concluded that petitioner did not have a mental disease or

defect when he committed the crimes, did not lack the capacity to appreciate the criminality of

his conduct, and did not lack the capacity to conform his conduct to the requirements of the

law. While petitioner alleges that his attorney failed to provide the doctor with medical records

concerning the head injury, the matter was discussed at a pretrial hearing. At that time, the trial

court declined to grant a continuance to allow petitioner to obtain the records to be submitted

to the doctor.

       Petitioner has presented nothing in his coram-nobis petition to demonstrate that there

would have been a different outcome to the trial had the doctor had the medical records. The



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doctor determined that petitioner was competent at the time of the defense and at the time of

trial. Petitioner has not shown that any particular information in the medical report would have

caused the doctor to reach a different assessment. Moreover, while insanity at the time of trial

is a ground for the writ, the burden is on the petitioner who claims a history of mental defect

or illness to overcome the strong presumption that the judgment was valid. The mere fact that

petitioner may have had a head injury before the psychiatrist examined him is not sufficient to

warrant issuance of the writ.

       Petitioner’s assertion that the writ should issue because his attorney did not render

effective assistance of counsel at trial must also fail. This court has consistently held that

allegations of ineffective assistance of counsel are outside the purview of a coram-nobis

proceeding. Cromeans, 2013 Ark. 273 (per curiam); McDaniels, 2012 Ark. 465; see also State v.

Tejeda-Acosta, 2013 Ark. 217, ___ S.W.3d ___.

       Petitioner next contends that evidence in the form of a sample of his DNA was illegally

obtained and should have been suppressed. Petitioner alludes to the prosecution’s having

withheld the evidence, but it is not clear from the petition how the prosecution kept the

evidence from the defense inasmuch as petitioner was clearly aware at the time of trial that the

sample had been taken. Any argument pertaining to the collection of the DNA and its use as

evidence at trial could, therefore, have been raised at the time of trial. Allegations concerning

the admission of evidence are claims of trial error, and such allegations by their very nature

constitute issues known at the time of trial that were addressed, or could have been addressed,

at that time. Trial error is not a ground for the writ. Smith v. State, 2012 Ark. 403 (per curiam);



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Anderson v. State, 2012 Ark. 270, ___ S.W.3d ___ (per curiam). This applies even to issues of trial

error of constitutional dimension that could have been raised in the trial court. Rodgers v. State,

2012 Ark. 193 (per curiam).

       Finally, petitioner argues that the multiple offenses of which he was convicted were

committed in one episode and should not have been prosecuted as separate crimes. As with the

allegations concerning the admission of DNA evidence, the argument is one that could have

been raised at trial. Every fact that petitioner advances as proof that he should have been

charged with a single offense was known at the time of trial. There was no fact extrinsic to the

record that would justify issuance of the writ. Extraordinary relief is not a substitute for raising

an issue at trial and on the record on direct appeal. Id.; Fudge v. State, 2010 Ark. 426 (per curiam).

If petitioner intended the claim to be a claim of double jeopardy, such allegations are not

cognizable in a coram-nobis proceeding. See Anderson, 2012 Ark. 270, ___ S.W.3d ___.

       Petition and amended petition denied; motions moot.

       Danny Lee Hooper, pro se petitioner.

       Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for respondent.




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