ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

FEBRUARY 8, 2001

DANIEL RISHER

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 92-923

PRO SE PETITION FOR LEAVE TO PROCEED IN CIRCUIT COURT WITH PETITION FOR WRIT OF ERROR CORAM NOBIS [CIRCUIT COURT OF COLUMBIA COUNTY, CR 91-93]

PETITION DENIED

Daniel Risher and Nikki Zinger were found guilty of the murder of Zinger's mother and each sentenced to life imprisonment. We affirmed. Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993). After the judgment was affirmed, Risher filed a petition for postconviction relief pursuant to Criminal Procedure Rule 37 in the trial court. The petition was denied, and this court affirmed the order. Risher v. State, CR 94-508 (December 5, 1994). In 1998, Risher filed a petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. The petition was denied. Risher v. State, CR 92-923 (April 16, 1998.) Risher filed a petition for rehearing that was also denied. Risher v. State, CR 92-923 (June 11, 1998).

Risher has now filed a second petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. ··²TopOfPage²····²TopOfPage²··-

As we said when the first such petition was denied, a writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Larimore v. State, 341 Ark.397, 17 S.W.3d 87 (2000). Literally, coram nobis means ourcourt, in our presence, before us. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). The essence of the writ of error coram nobis is that it is addressed to the very court which renders the judgment where injustice is alleged to have been done, rather than to an appellate or other court. Black's Law Dictionary 337 (6^th ed. 1990). The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999). We have held that a writ of error coram nobis was available to address certain errors of the most fundamental nature 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. Pitts, supra. Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid.

Due diligence is required in making application for relief. Penn v. State, supra; Troglin v. State, 257 Ark. 644, 646, 519 S.W.2d 740, 741 (1975). After reviewing the instant petition, we do not find that petitioner has stated any good cause to grant leave to proceed with a petition for writ of error coram nobis in the trial court.

Petitioner Risher contends that he is entitled to error coram nobis relief on several grounds. First, he asserts that a photograph of the crime scene which would have been helpful to the defense was suppressed by the State. Petitioner alleges that the photograph was found in the file of one of the investigating officers, Jim Wittington, who participated in the search of the crime scene. He asserts that the photograph, when compared with other photographs of the crime scene introduced into evidence at trial, would have shown that the scene as depicted in the photos introduced at trial was staged by the police. Petitioner argues that the photograph wouldhave discredited the investigation and caused the jury to give less weight to the photographic evidence.

When determining whether a petitioner is entitled to relief as a result of material evidence withheld by the prosecutor, the 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 evidence been disclosed at trial. Larimore, supra.

A mere claim of newly discovered evidence in itself is not a basis for relief under coram nobis. Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990). Petitioner has not demonstrated that there is a reasonable probability that the judgment would not have been rendered, or would have been prevented, had the photograph been disclosed.

Petitioner next raises questions pertaining to the chemical reagent Luminol which was used at the crime scene and on items of clothing belonging to him and Zinger to detect the presence of blood. He argues that the prosecutor knowingly elicited false testimony at trial about the effectiveness and trustworthiness of Luminol testing. As the allegation clearly concerns matters that could have been addressed at trial, petitioner has not stated a ground on which the writ could be issued.

As his third ground, petitioner asserts that he and Zinger, who did not join in this petition, are actually innocent of the offense. Petitioner and Zinger were found guilty at trial and the judgment was affirmed on appeal. An error coram nobis proceeding does not provide a remedy to overturn a judgment based on a conclusory claim of actual innocence Finally, petitioner argues that this court should excuse his delay in bringing theseallegations because his copy of the trial transcript and other legal material were confiscated and lost by the Arkansas Department of Correction. Inasmuch as none of the grounds raised by petitioner warrants granting relief, we need not address whether his failure to raise the grounds in his first petition or otherwise sooner amounts to a lack of diligence on his part.

Petition denied.