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Slocum v. State

Supreme Court of Arkansas

September 25, 2014

KENNETH SLOCUM, PETITIONER
v.
STATE OF ARKANSAS, RESPONDENT

PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS PULASKI COUNTY CIRCUIT COURT, NO. 60CR-93-2979.

Kenneth Slocum, Pro se petitioner.

Dustin McDaniel, Att'y Gen., by: David R. Raupp, Sr. Ass't Att'y Gen., for respondent.

OPINION

PRO SE

Page 859

PER CURIAM

In 1995, petitioner Kenneth Slocum was found guilty of capital murder and sentenced to life imprisonment without parole. We affirmed. Slocum v. State, 325 Ark. 38, 924 S.W.2d 237 (1996).[1] Appellant subsequently filed a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (1995) on the ground that his counsel was ineffective. The trial court granted a new trial, and we

Page 860

reversed. State v. Slocum, 332 Ark. 207, 964 S.W.2d 388 (1998).

Now before us is petitioner's pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis. 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. 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. 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 trial 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. 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 petition, petitioner contends that he is 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 87 (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) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.

Petitioner first alleges that the prosecution withheld from the defense the correct date on which the victim was murdered. He states that the murder occurred on September 30, 1993, but the felony information reflected that the murder occurred on October 4, 1993, which was actually the date the body was found. A review of the information filed December 29, 1993, that is contained in the record lodged on direct appeal reveals that the information ...


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