Hogue v. State

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SUPREME COURT OF ARKANSAS.
No. CR-95-985
Opinion Delivered April 13, 2017
GREG HOGUE
PETITIONER
PRO SE SECOND PETITION TO REINVEST
V. JURISDICTION IN THE TRIAL COURT TO
CONSIDER A PETITION FOR WRIT OF
STATE OF ARKANSAS ERROR CORAM NOBIS AND TO PROCEED IN
RESPONDENT FORMA PAUPERIS
[PULASKI COUNTY CIRCUIT COURT, NO. 60CR-94-
904]
PETITION DENIED.
PER CURIAM
A jury found petitioner Greg Hogue guilty of capital murder in the death of Jess
Brown for which he was sentenced to life imprisonment without parole. This court
affirmed the judgment. Hogue v. State, 323 Ark. 515, 915 S.W.2d 276 (1996). On
January 19, 2017, Hogue filed his second petition requesting this court to reinvest
jurisdiction in the trial court to consider a petition for writ of error coram nobis.1
The petition for leave to proceed in the trial court 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
1For clerical purposes, the motion was assigned the same docket number as the
direct appeal.
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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 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.
Hogue seeks leave to proceed in the trial court for a writ of error coram nobis
for a second time, contending the State committed prosecutorial misconduct by
failing to disclose an intimate relationship between the prosecutor and the circuit
judge.2 Specifically, he contends that the failure of the prosecutor and the circuit
2When a petitioner files a successive application for coram nobis relief in this
court, it is an abuse of the writ to argue the same claims that have been addressed if
the petitioner does not allege new facts that are sufficient to distinguish his latest
claims from the prior claims. Wallace v. State, 2016 Ark. 400, at 11, 503 S.W.3d 754,
760 (per curiam). Hogue’s second application is not an abuse of the writ as he raises
wholly new claims. See Hogue v. State, 2011 Ark. 496 (per curiam) (Hogue requested
2
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judge to disclose the “exculpatory evidence” of their relationship violated his
constitutional rights and that the outcome of the trial would have been different
because the circuit judge favored the prosecutor during the entire trial court
proceedings by denying multiple defense motions and objections; the circuit judge
allowed extra preemptory strikes in favor of the prosecution; and the defense could
have filed a motion to have the circuit judge recuse himself from the case. Hogue also
argues that the State committed prosecutorial misconduct by failing to disclose that
the prosecutor was in an intimate relationship with the circuit judge when Hogue
filed his Rule 37.1 petition.3
A Brady violation is established when material evidence favorable to the
defense is wrongfully withheld by the State. Pitts v. State, 336 Ark. 580, 986 S.W.2d
407 (1999) (per curiam). In Strickler v. Greene, 527 U.S. 263 (1999), the Supreme
Court revisited Brady and declared that when the petitioner contends that material
evidence was not disclosed to the defense, the petitioner must show that “there is a
reasonable probability that, had the evidence been disclosed to the defense, the result
the writ claiming Brady v. Maryland, 373 U.S. 83 (1963), violations involving five
specific documents.).
3To the extent Hogue attempts to utilize the petition to reinvest to seek relief
from any error in his Rule 37 proceedings, the attempt fails because the function of
the writ is to secure relief from the judgment 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 rendition of
the judgment. See Newman, 2009 Ark. 539, 354 S.W.3d 61.
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of the proceeding would have been different.” Strickler, 527 U.S. at 280 (quoting
United States v. Bagley, 473 U.S. 667, 682 (1985)).
In Strickler, the Court also set out the three elements of a true Brady violation:
(1) the evidence at issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; (2) the evidence must have been suppressed
by the State, either willfully or inadvertently; and (3) prejudice must have ensued.
Strickler, 527 U.S. 263; see Howard, 2012 Ark. 177, 403 S.W.3d 38.
Hogue’s claims are conclusory in nature and fail to establish that there was
error. Noble v. State, 2016 Ark. 463, 505 S.W.3d 687 (per curiam). In order to carry
his burden to show that the writ is warranted, a petitioner must demonstrate that the
State had specific evidence that would have been sufficient to prevent rendition of the
judgment. Id. Hogue contends that the prosecutor and the circuit judge were in an
intimate relationship during the time of his trial yet he fails to demonstrate how that
relationship even qualifies as evidence and, if considered as evidence, whether that
evidence is material, much less, exculpatory. Moreover, the court is not required to
accept at face value the allegations of the petition. Chatmon v. State, 2015 Ark. 417,
at 2, 473 S.W.3d 542, 544 (per curiam). Hogue’s allegations are conclusory, and he
offers no factual substantiation that any specific, particular evidence was hidden from
the defense at the time of trial, nor does he identify any specific motions or rulings
that favored the prosecution or a specific extra preemptory strike and how the
outcome of the trial would have been different had any particular evidence been
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disclosed. Evans v. State, 2016 Ark. 377, at 5, 501 S.W.3d 819, 822–23 (per curiam).
Hogue fails to establish a Brady violation or to point to any prejudice that may have
ensued, which would warrant granting the petition.
Hogue fails to raise a claim that falls within the purview of a coram nobis
proceeding because the error he claims is not an error found in one of the four above-
referenced categories of error, i.e., insanity at the time of trial, a coerced guilty plea,
material evidence withheld by the prosecutor, or a third-party confession.4 Howard,
2012 Ark. 177, 403 S.W.3d 38. None of the claims raised by Hogue demonstrate that
there was some fundamental error at trial or that there existed some fact that would
have prevented rendition of the judgment if it had been known to the trial court and
which, through no negligence or fault of his own, was not brought forward before
rendition of judgment.5 Newman, 2009 Ark. 539, 354 S.W.3d 61.
Petition denied.
4Althoughthe four categories are not set in stone, the remedy of coram nobis
remains an extraordinary remedy. See Strawhacker v. State, 2016 Ark. 348, 500
S.W.3d 716.
5Hogue fails to make any allegation of judicial bias because he stated a claim of
prosecutorial misconduct for the State’s failure to disclose the alleged relationship.
Even had Hogue alluded to a claim of judicial bias, to state a ground for the writ on
that basis, a petitioner must show that there was a reasonable probability that he
would not have been convicted if an unbiased judge had served, and an allegation of
the mere appearance of impropriety is not sufficient. Chatmon, 2015 Ark. 417, at 3,
473 S.W.3d at 545. Hogue did not make any argument or showing of fundamental
error to support relief because he failed to demonstrate any actual bias with his
conclusory claims. Id.
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HART, J. dissents.
JOSEPHINE LINKER HART, Justice, dissenting. I respectfully dissent from this
court’s denial of Greg Hogue’s petition for writ of error coram nobis. Hogue contends that
the deputy prosecutor who prosecuted him and the circuit judge who presided over his trial
were in an intimate relationship during the time of his trial. Contrary to the majority’s
conclusion, Hogue has raised not only a claim of prosecutorial misconduct but also a claim
of judicial bias, which we have recently held falls within the purview of an error coram
nobis proceeding. McArthur v. State, 2017 Ark. 120 (per curiam). By engaging in a narrow,
cramped reading of Hogue’s petition, the court essentially treats two judicial bias claims
differently, even though both were raised in error coram nobis proceedings. Moreover,
Hogue’s claim that he was tried by a circuit judge who was in an intimate relationship with
the deputy prosecutor is a claim of actual bias, which is a fundamental error. 1 Chatmon v.
State, 2015 Ark. 417, at 3, 473 S.W.3d 542, 545 (per curiam) (stating that a petitioner does
not make the necessary showing of fundamental error to support relief when there is no
demonstration of actual bias). I would consider the merits of Hogue’s judicial bias claim.
1
This court has discussed this relationship in other cases. See Lee v. State, 343 Ark.
702, 38 S.W.3d 334 (2001), mandate recalled, Lee v. State, 367 Ark. 84, 238 S.W.3d 52 (2006).