ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION

DECEMBER 11, 2003

DEWAYNE ALAN JERNIGAN

a/k/a Dwayne Alan Jernigan

Petitioner

v.

STATE OF ARKANSAS

Respondent

CACR 99-1409

PRO SE PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS AND FOR WRIT OF HABEAS CORPUS [CIRCUIT COURT OF PULASKI, NO. CR 99-1118]

PETITION DENIED

Per Curiam

Dewayne Alan Jernigan was found guilty in a trial to the court of possession of a controlled substance for which he was sentenced to five years' imprisonment. The court of appeals affirmed. Jernigan v. State, CACR 99-1409 (Ark. App. September 20, 2000). Jernigan now asks this court to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis and also to issue a writ of habeas corpus.1 -

With respect to the request for leave to proceed in the trial court with a petition for writ of error coram nobis, the request 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.

As grounds for the writ of error coram nobis, petitioner contends that: (1) he is innocent of the charge of which he was convicted; (2) he did not receive a copy of the amended information reflecting that the charge against him was changed from possession of methamphetamine to possession of cocaine and an amended information was never filed; and (3) he was not afforded effective assistance of counsel at trial.2 All of the grounds, except for the claim of ineffective assistance of counsel, concern matters which could, and should, have been raised and settled at trial or raised and settled in a motion for new trial. None of the claims involved matters extrinsic to the record or otherwise fell within the purview of a writ of error coram nobis. Error coram nobis does not lie to address issues which could have been addressed to the court below. Pitts v. State, supra.

The assertion that petitioner was not afforded effective assistance of counsel at trial was cognizable under Criminal Procedure Rule 37.1 and should have been raised in such a postconviction

proceeding. A coram nobis proceeding is not a substitute for proceeding under Rule 37.1 or an opportunity to revisit claims which may have already been argued under the rule. See McArty v. State, 335 Ark. 445, 983 S.W.2d 418 (1998).

As to petitioner's claim that he is entitled to issuance of a writ of habeas corpus, it is well settled that the burden is on the petitioner in an habeas corpus action to establish that the trial court lacked jurisdiction or that the commitment was invalid on its face; otherwise, there is no basis for a finding that a writ of habeas corpus should issue. Birchett v. State, 303 Ark. 220, 795 S.W.2d 53 (1990). The petitioner

must plead either the facial invalidity or the lack of jurisdiction and make a "showing, by affidavit or other evidence, [of] probable cause to believe" he is illegally detained. Ark. Code Ann. 16-112-103 (1987). See Wallace v. Willock, 301 Ark. 69, 781 S.W.2d 478 (1989). Petitioner has not shown that the commitment was invalid or that the trial court lack jurisdiction.

Petition denied.

1 For clerical purposes, the petition has been filed under the docket number assigned to the direct appeal of the judgment of conviction.

2 In a fourth allegation, petitioner contends that the trial court erred in its disposition of his petitions for postconviction relief. His remedy in those matters was an appeal of the orders. A challenge to the denial of postconviction relief is not properly included in a petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis or a petition for writ of habeas corpus.