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Jordan v. State

Supreme Court of Arkansas

March 3, 2016

BRIAN JORDAN, PETITIONER
v.
STATE OF ARKANSAS, RESPONDENT

Page 257

          PRO SE PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS. BENTON COUNTY CIRCUIT COURT, NO. 04CR-10-1004.

          OPINION

Page 258

          PER CURIAM

         On February 27, 2010, the Benton County Sheriff's Office received a call that a seventy-five-year-old woman had been sexually assaulted in her home. The victim identified Brian Jordan, a former neighbor who had recently begun visiting her, as her attacker. In 2011, Jordan was found guilty by a jury of raping the victim and was sentenced as a habitual offender to life imprisonment. We affirmed. Jordan v. State, 2012 Ark. 277, 412 S.W.3d 150.

         Jordan subsequently filed in the trial court a petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011) in which he contended that he was denied effective assistance of counsel because his trial attorney did not introduce certain evidence at trial and raise arguments related to the evidence to support his defense that the victim had offered him money in exchange for sex. The trial court denied the relief sought under Rule 37.1. This court affirmed the order. Jordan v. State, 2013 Ark. 469 (per curiam).

          Now before us is Jordan's pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis in the case. 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 attended by a strong presumption that the judgment of conviction is valid. Westerman v. State, 2015 Ark. 69, at 4, 456 S.W.3d 374, 376; Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.

         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, 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.

         As grounds for the writ, Jordan asserts that the State violated his right to due process of law pursuant to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by concealing information from the defense. A review of the Brady claim suggests that Jordan has misconstrued the nature of a Brady violation and the purpose of a coram-nobis proceeding. A Brady violation is established when material evidence favorable to the defense is wrongfully withheld by the State. Isom v. State, 2015 Ark. 225, 462 S.W.3d 662.

Page 259

In Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (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 of the proceeding would have been different." Strickler, 527 U.S. at 280 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). To determine whether the proposed attack on the judgment is meritorious so as to warrant the granting of permission to reinvest jurisdiction in the trial court to pursue a writ of error coram nobis, this court looks to the reasonableness of the allegations of the petition and to the existence of the probability of the truth of those claims. Isom, 2015 Ark. 225, 462 S.W.3d 662.

         Jordan alleges that there was criminal wrongdoing in the form of witness tampering, witness intimidation, witness bribery, and false swearing committed by the two officers who investigated his case, the prosecutor, a deputy prosecutor, and the rape victim. He bases his claims on letters that he had written to the prosecutor and the circuit judge in which he alleged the wrong doing and called for those persons to be criminally prosecuted. He further relies on information contained in pro se pleadings that he had filed in the trial court in which he pointed out inconsistencies in testimony, questioned the reliability of the evidence adduced at trial, and argued that crimes had been committed in order to obtain his conviction.

          In addition to asserting that the persons committed crimes to obtain his conviction, Jordan has also appended to his petition the affidavit of Cleo Horton, which states that Horton was coerced by investigators into changing his pretrial statement to be less favorable to Jordan and that these same investigators suppressed a letter Horton wrote in 2010, asking about promises made by police of favorable treatment to Horton.

         The request to reinvest jurisdiction in the trial court is denied. We first note that, in his Rule 37.1 proceeding, Jordan raised claims pertaining to the same allegedly false statements by investigators that were incorporated in a police report with regard to the interrogation of Cleo Horton; claims of police intimidation which allegedly coerced Horton into recanting his statement that the victim had offered him money in exchange for sex on several occasions; a letter allegedly written by Horton in September 2010 in which Horton confessed to being untruthful when he recanted his statement, along with the explanation that he had lied to cover up his participation in robbing the victim on the same night that the rape occurred and because he was promised probation; grievances authored by Jordan, which complained that police had assaulted him in an attempt to force him to confess to committing the rape and to writing the Horton letter; and an email sent by the victim that Jordan claimed evinced the family relationship between an investigator and the victim. As stated, ...


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