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SUPREME COURT OF ARKANSAS
No. CR-02-161
Opinion Delivered September 24, 2015
DAVID ANDERSON SECOND PRO SE PETITION AND
PETITIONER AMENDED PETITIONS TO
REINVEST JURISDICTION IN THE
V. TRIAL COURT TO CONSIDER A
PETITION FOR WRIT OF ERROR
CORAM NOBIS
STATE OF ARKANSAS [GREENE COUNTY CIRCUIT COURT,
RESPONDENT NO. 28CR-98-210]
PETITION AND AMENDED
PETITIONS DENIED.
PER CURIAM
In 2001, David Anderson was found guilty of murder in the first degree and sentenced
to life imprisonment. We affirmed. Anderson v. State, 354 Ark. 102, 118 S.W.3d 574 (2003).
The judgment had been entered on retrial after the Arkansas Court of Appeals reversed the
original judgment in the case in 2000. Anderson v. State, 71 Ark. App. 200, 33 S.W.3d 173 (2000).
Under the original judgment, Anderson had been sentenced to 480 months’ imprisonment for
the first-degree murder conviction.
Anderson then filed in the trial court a timely petition for postconviction relief pursuant
to Arkansas Rule of Criminal Procedure 37.1 (2001). The petition was denied, and we affirmed
the order. Anderson v. State, CR-04-621 (Ark. Jan. 26, 2006) (unpublished per curiam).
In 2012, Anderson petitioned this court to reinvest jurisdiction in the trial court so that
he could proceed with a petition for writ of error coram nobis. He also filed a motion for
“addition,” seeking to amend the petition to add claims and a motion to voluntarily dismiss the
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motion without prejudice. Later, Anderson filed an amendment to the petition; a second
amendment; a motion to compel; a third amendment; a second motion to compel; a motion to
raise objections; and fourth, fifth, and sixth amendments. The motions to compel sought an
order requiring the State to address certain issues concerning comments made by the trial court
and a statement made by the prosecutor at trial. In the motion to raise objections, Anderson
disputed the accuracy of the State’s description of certain facts. We granted the motion that
sought to amend the petition, denied the motions to dismiss and compel, and denied the petition
with its amendments. Anderson v. State, 2012 Ark. 270, 423 S.W.3d 20 (per curiam).
Now before us is Anderson’s second petition, filed July 15, 2015, to reinvest jurisdiction
in the trial court to consider a petition for writ of error coram nobis. Anderson has also filed
three amendments to the petition in which he reiterates the grounds raised in the petition.1
The petition for leave to proceed 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 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
1
Anderson also asks in the second amended petition that this court investigate his claim
that the administration of the Arkansas Department of Correction is blocking his access to the
federal court. We decline to do so; this court has no authority to investigate the conduct of the
department as part of this coram-nobis proceeding as requested by Anderson.
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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.
As grounds for reinvesting jurisdiction in the trial court, Anderson alleges in both his
petition and in the amended petitions that he has been subjected to double jeopardy on the
ground that he served three years’ imprisonment on his original conviction before he began
serving his life sentence on the subsequent judgment. He contends that the three years
constituted a multiple punishment because the three years cannot be applied to the twenty years
he must serve before becoming eligible to apply for executive clemency. He argues that he
should have received credit against his life sentence for the time spent in custody before his first
trial, the three years he served on the original sentence before the judgment was reversed by the
court of appeals, and the time he was incarcerated awaiting his second trial.
Anderson has not stated a ground for a writ of error coram nobis. When Anderson
contended in his first coram-nobis petition that he was entitled to credit for time served and that
he was subjected to double jeopardy, we noted that he provided no facts that would not have
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been available at the time of trial or shortly after his conviction to support the claims, and there
were other remedies available to him. Anderson, 2012 Ark. 270, at 8, 423 S.W.3d at 27. This
court has specifically held that a request for credit against a sentence for time spent in custody
is a request for modification of a sentence imposed in an illegal manner, which is a request that
must be timely filed in the trial court. See Perez v. State, 2015 Ark. 120, at 2 (per curiam).
A mere double-jeopardy claim is not a ground for the writ. Lukach v. State, 2014 Ark.
451, at 4. Such a claim does not fit within the categories for the writ. See Hooper v. State, 2014
Ark. 16, at 5 (per curiam). Anderson’s contention that his right to apply for clemency has been
affected by the failure of the trial court to award him sufficient credit for time served does not
constitute an assertion within the scope of a coram-nobis proceeding.
Petition and amended petitions denied.
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Anderson v. State
Combined Opinion