ARKANSAS SUPREME COURT
NOT DESIGNATED FOR PUBLICATION
 

JANUARY 8, 2004

DANIEL RISHER

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 03-311

PRO SE MOTION FOR COURT TO TAKE JUDICIAL NOTICE OF NEWLY DISCOVERED EVIDENCE [CIRCUIT COURT OF COLUMBIA COUNTY, CR 91-93]

MOTION DENIED

Per Curiam

Daniel Risher and Nikki Zinger were found guilty of the murder of Zinger's mother and each was 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). In 2000, Risher filed a second petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis, which was also denied. Risher v. State, CR 92-923 (February 8, 2001). In 2002, Risher filed in the trial court two petitions pursuant to Act 1780 of the 2001 Acts of Arkansas, one on January 9, 2002, and the second on January 14, 2002. The act amended Arkansas's state habeas corpus statute to provide that a writ could issue to any person "who has alleged actual innocence of the offense or offenses for which the person was convicted....in accordance with §16-112-201 et seq." Ark. Code Ann. §16-112-103(a)(1). On August 23, 2002,the court denied both petitions in one order. Risher did not perfect an appeal of the order.

On September 17, 2002, Risher filed another petition for writ of habeas corpus pursuant to Act 1780, which he labeled an "amended petition." The petition was denied on November 26, 2002. Risher, proceeding pro se, has lodged an appeal of the order here. Now before us is appellant Risher's motion asking that this court take judicial notice of newly discovered evidence regarding "luminol follow-up DNA testing."

The motion is denied because it is a clear attempt to add information that was not presented to the court below. It is impermissible for this court to take judicial notice of a fact not presented to the trial court. Green v. State, 335 Ark. 1, 977 S.W.2d 192 (1998), citing Pascall v. Smith, 263 Ark. 428, 569 S.W.2d 89 (1978). To hold otherwise would relieve the petitioner of his burden of making his case in the trial court. See Green, supra.

Motion denied.