ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

JANUARY 17, 2002

TERESA McCLENDON

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 93-1160

PRO SE PETITION FOR LEAVE TO PROCEED IN CIRCUIT COURT WITH PETITION FOR WRIT OF ERROR CORAM NOBIS [CIRCUIT COURT OF SALINE COUNTY, CR 92-597-2]

PETITION DENIED

In 1993, Teresa McClendon was found guilty by a jury of capital murder and sentenced to life imprisonment without parole. We affirmed. McClendon v. State, 316 Ark. 688, 875 S.W.2d 55 (1994). McClendon now asks this court to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. ··²TopOfPage²····²TopOfPage²··-The 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. Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001).

-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). 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, citing Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. After reviewing the instant petition, we do not find that petitioner has stated good cause to grant leave to proceed with a petition for writ of error coram nobis in the trial court.

As grounds for the writ, petitioner asserts that: (1) her attorney had a conflict of interest in that he was active in representing her co-defendant, Tyrone Williams, at the same time he was representing her; (2) her attorney seated her in the back of the courtroom on the last day of Tyrone Williams's trial in an effort to aid Williams's attorney in his defense of Williams; (3) the prosecutor at her trial made reference to the fact that she was present in the courtroom during Williams's trial, which was injurious to her defense; (4) the prosecutor committed misconduct in allowing her to be in the courtroom during Williams's trial; (5) the judge at her trial should have questioned her attorney's motivation in allowing her to be present at Williams's trial and investigated the conflict of interest demonstrated by her attorney's conduct in bringing her into the courtroom; (6) the prosecutor made himself a witness when he testified at her trial about a pre-arrest statement made by Williams that Williams later recanted and which was never introduced into evidence; (7) during closing arguments her attorney and the prosecutor engaged in verbal sparring, a physical fight, and the exchange of profanity and threats of physical harm; (8) the prosecutor and "likely" her attorney knew that Williams had testified during his trial thathe acted alone but this information was not given to her; (9) her attorney failed to call Williams

as a witness at her trial; (10) her attorney filed a notice of appeal for Williams; (11) the trial judge erred in appointing her attorney to represent her on appeal while knowing that counsel had actively participating in Williams's defense; (12) her attorney contaminated the record of her trial by putting incorrect information in the notice of appeal; (13) her attorney failed to preserve the true record for appellate review and failed to properly abstract the record on appeal; and (14) her attorney violated certain ethical rules and acted to deprive her of the transcript of her trial. Petitioner contends that the errors by counsel establish that she was denied effective assistance of counsel at trial and on appeal.

It is well settled that allegations of ineffective assistance of counsel are properly raised under our postconviction rule, Criminal Procedure Rule 37. Such allegations do not fit within the narrow purview of an coram nobis proceedings, even in those instances where the petitioner contends that she only recently realized that counsel's representation was lacking. See McArty v. State, 335 Ark. 445, 983 S.W.2d 418 (1998).

None of the claims raised by petitioner demonstrate that there was some fundamental error at trial or that there existed some fact which would have prevented rendition of the judgment 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 judgment. In fact, all of the issues raised by petitioner as grounds for a writ of error coram nobis either could have been addressed in the trial court or, if not raised there by petitioner's counsel, could have been a basis for a petitionunder Rule 37 as claims of effective assistance of counsel. An error coram nobis proceeding is not a substitute for raising an issue at trial or under Rule 37.

Petition denied

Imber, J., not participating.