CRITTENDEN COUNTY CIRCUIT COURT, NO. 18CR-94-1023.
DeAngelo Allen, petitioner, Pro se.
Dustin McDaniel, Att'y Gen., by: Ashley Argo Priest, Ass't Att'y Gen., for appellee.
PRO SE PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS
In 1995, petitioner Deangelo Allen was found guilty of capital murder and sentenced to life imprisonment without parole. We affirmed. Allen v. State, 324 Ark. 1, 918 S.W.2d 699 (1996). Subsequently, petitioner timely filed in the trial court a pro se petition pursuant to Arkansas Rule of Criminal Procedure 37.1 (1995) seeking to vacate the judgment. The petition was denied, and the order was affirmed. Allen v. State, CR-96-881 (Ark. Jan. 7, 1999) (unpublished per curiam).
In 2006, petitioner filed in this court a pro se petition seeking to have jurisdiction reinvested in the trial court to consider a petition for writ of error coram nobis. The petition for leave to proceed in the trial court was 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. Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001). The petition was denied. Allen v. State, CR-95-1042 (Ark. Jan. 18, 2007) (unpublished per curiam).
Now before us is petitioner's second petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. A writ of error coram nobis is an extraordinarily rare remedy more known for its denial than its approval. Cromeans v. State, 2013 Ark. 273 (per curiam). Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Greene v. State, 2013 Ark. 251 (per curiam). 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 circuit
court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Id. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Burks v. State, 2013 Ark. 188 (per curiam).
The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. Cromeans, 2013 Ark. 273. We have held that 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. Wright v. State, 2014 Ark. 25 (per curiam); Greene, 2013 Ark. 251.
In his first coram-nobis petition, petitioner alleged that he was entitled to issuance of the writ on the ground that the State withheld material evidence from the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The Supreme Court in Brady held that " the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999), the Court revisited Brady and declared that evidence is material " if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." 373 U.S. at 280 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (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) that the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.
The evidence that was alleged in the first petition to have been withheld consisted of a custodial statement to police made by the State's " star witness," Tony McKenzie. McKenzie testified at petitioner's trial that he drove with petitioner, Earnest Phillips, and Quincy Wright to a location in West Memphis where Phillips asked McKenzie to let them out so that he could " sting a fool," or rob someone. McKenzie sad that later that evening he saw petitioner, Phillips, and Wright and that, when he picked them up in his car, he noticed that petitioner was perspiring. He said that Phillips later admitted to him that he had killed a man. Another witness, Eric Marshall, testified that petitioner had told him that the he and the other two men had gone to the victim's house where Phillips had shot the victim. Other witnesses testified that the house had been ransacked as though someone was looking for something. Petitioner gave a statement to police that was videotaped and shown to the jury in which he conceded that he was in the house but contended that he was not aware that Phillips would kill the victim when he went ...