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                   SUPREME COURT OF ARKANSAS.
                                         No.   CR-81-82


                                                  Opinion Delivered May   11, 2017
ROBERT R. HEFFERNAN a/k/a
ROBERT RICHARD HEFFERNAN
                               PRO SE SECOND PETITION TO
                    PETITIONER REINVEST JURISDICTION IN THE
                               TRIAL COURT TO CONSIDER A
V.                             PETITION FOR WRIT OF ERROR
                               CORAM NOBIS
 STATE OF ARKANSAS             [SALINE COUNTY CIRCUIT COURT,
                               NO. 63CR-80-41]
                   RESPONDENT
                               PETITION DENIED.

                                        PER CURIAM


        Petitioner Robert R. Heffernan, also known as Robert Richard Heffernan, was

 convicted by a jury of capital felony murder and sentenced to life imprisonment without

 parole in the Arkansas Department of Correction. This court affirmed. Heffernan v. State,

 278 Ark. 325, 645 S.W.2d 666 (1983). Now before this court is Heffernan’s pro se second

 petition 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. Pinder v. State, 2015 Ark. 423, 474 S.W.3d 490 (per

 curiam). A writ of error coram nobis is an extraordinarily rare remedy. Id. at 2–3, 474




        1
         For clerical purposes, the instant pleading was assigned the same docket number as
 the direct appeal of the judgment.
                                    Cite as 2017 Ark. 177

S.W.3d at 492. Coram nobis proceedings are 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. Id. 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, at 4, 403 S.W.3d 38, 43.

       When a petitioner files successive applications 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 10–11, 503 S.W.3d 754, 760 (per curiam). In

Heffernan’s first application for coram nobis relief, he claimed he was insane and

incompetent at all stages of his trial and was taking psychotropic medications; thus, he could

not possess any rational understanding of the proceedings against him and was unable to

assist his attorneys in his defense. Heffernan v. State, CR-81-82 (Ark. Feb. 22, 2007)

(unpublished per curiam). Here, Heffernan raises a wholly new claim based on the holding

in Brady v. Maryland, 373 U.S. 83 (1963), which prohibited the prosecution from
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withholding material exculpatory evidence from the defense. Heffernan contends he is

entitled to coram nobis relief because the prosecutor withheld a confession made by the

codefendant, Michael Breault, that he killed the victim. The confession was in a letter dated

November 10, 1980, and referenced in a supplemental motion for discovery and

continuance filed on April 27, 1981. It was also in an affidavit by defense counsel regarding

Breault’s psychiatric report in which Breault allegedly made an additional admission to

killing the victim.

       While allegations of a Brady violation fall within one of the four categories of

fundamental error that this court has recognized in coram nobis proceedings, the fact that a

petitioner alleges a Brady violation alone is not sufficient to provide a basis for error coram

nobis relief. Davis v. State, 2016 Ark. 296, at 3, 498 S.W.3d 279, 281 (per curiam).

Furthermore, to merit relief on a claim of a Brady violation, a petitioner must demonstrate

that there is a reasonable probability that the judgment of conviction would not have been

rendered, or would have been prevented, had the information been disclosed at trial. Noble

v. State, 2014 Ark. 332, at 4, 439 S.W.3d 47, 50 (per curiam).

       A Brady violation is established when material evidence favorable to the defense is

wrongfully withheld by the State. Ventress v. State, 2015 Ark. 181, 461 S.W.3d 313 (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 of the proceeding would have been


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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.

       Before addressing the merits of Heffernan’s claims for relief, a recitation of the

evidence adduced at his trial is necessary. The State introduced evidence that on February

3, 1980, the victim, a fourteen-year-old girl, was abducted from a laundromat in Benton,

Arkansas, and then raped and shot four times. Heffernan, 278 Ark. at 326, 645 S.W.2d at

666. The victim’s body was discovered the next day near Benton. Heffernan, along with

Breault and two women, camped at a park near Benton from February 2 to February 5, and

a .357 Magnum, owned by Heffernan, was retrieved from a lake.                    Ballistics later

demonstrated that this gun was the weapon from which the fatal bullets had been fired.

Glitter and hair were found on pants in the truck driven by Heffernan and Breault that

matched glitter and hair found on the clothing of the victim. Heffernan and Breault were

arrested in Colorado.

       To warrant coram nobis relief, the defendant must have been unaware of the fact

alleged to have been unknown to the trial court at the time of trial, and he could not have

discovered the fact with the exercise of due diligence. Stenhouse v. State, 2016 Ark. 295, at

7–8, 497 S.W.3d 679, 684 (per curiam). Moreover, the court is not required to accept at
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face value the allegations of the petition. Chatmon v. State, 2015 Ark. 417, at 2, 473 S.W.3d

542, 544 (per curiam). Heffernan fails to establish a Brady violation because he alleges

evidence was withheld by the prosecutor at the time of trial; however, Heffernan’s own

petition makes reference to the fact that the November 10, 1980 letter “was never given”

to his counsel but then alleges that “how they got a copy of this letter . . . is unknown[]”

and that his counsel was aware “that Breault’s confession did exculpate petitioner, and said,

he did kill [the victim].”

       Even if the letter had been exculpatory, the issue of the discovery of the November

10, 1980 letter was addressed on direct appeal. See Heffernan, 278 Ark. at 328–29, 645

S.W.2d at 667–68. Heffernan argued that the State, in violation of a request for discovery,

did not furnish the defense with a copy of the letter. The State argued that its entire file,

including the letter, had been made available to the defense in compliance with the

discovery request, and Heffernan’s counsel acknowledged as much. In fact, Heffernan’s

counsel filed a petition for writ of prohibition in this court on April 27, 1981, the date of

trial, and attached a copy of the November 10, 1980 letter, which “verifies the statement

that [defense counsel] had discovered the letter in his files prior to trial.” Heffernan, 278

Ark. at 328, 645 S.W.2d at 668. Heffernan fails to point to any evidence that was withheld

by the State that was unknown to the defense or that any prejudice ensued. See Anderson v.

State, 2017 Ark. 44, at 6, 510 S.W.3d 755 (per curiam). Because the petition does not

demonstrate a fundamental error of fact extrinsic to the record, the allegations advanced by

Heffernan do not warrant reinvesting jurisdiction in the trial court to consider a coram nobis

petition. Id.
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       In addition, Heffernan has failed to exercise due diligence in bringing this coram

nobis petition.   We have consistently held that due diligence is required in making

application for coram nobis relief, and in the absence of a valid excuse for delay, the petition

can be denied on that basis alone. Ratchford v. State, 2015 Ark. 309, 468 S.W.3d 274 (per

curiam). This court will itself examine the diligence requirement and deny a petition where

it is evident that a petitioner failed to proceed diligently. Roberts v. State, 2013 Ark. 56, at

12, 425 S.W.3d 771, 778. Due diligence requires that (1) the defendant be unaware of the

fact at the time of trial; (2) the defendant could not have, in the exercise of due diligence,

presented the fact at trial; and (3) upon discovering the fact, the defendant did not delay

bringing the petition. Grant v. State, 2016 Ark. 82, at 6, 484 S.W.3d 272, 276 (per curiam).

The judgment in Heffernan’s case was affirmed in 1983; yet, he did not bring his petition

for more than thirty-four years, and he has not shown in his petition that he exercised due

diligence in raising his claims for coram nobis relief.

       Petition denied.




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