SANDERS M. CARTER APPELLANT
STATE OF ARKANSAS APPELLEE
SECOND PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT
TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [PULASKI
COUNTY CIRCUIT COURT, NO. 60CR-87-63]
1987, petitioner Sanders M. Carter was convicted by a jury of
rape, aggravated robbery, and burglary. He was sentenced as a
habitual offender to consecutive terms of imprisonment of
life for rape and an aggregate sentence of forty years'
imprisonment for the other offenses. We affirmed. Carter
v. State, 295 Ark. 218, 748 S.W.2d 127 (1988).
Carter filed in this court a pro se petition for
postconviction relief pursuant to Arkansas Rule of Criminal
Procedure 37.1 (1987). The petition was denied. Carter v.
State, CR-87-209 (Ark. Oct. 16, 1989) (unpublished per
curiam). In 1990, appellant filed in the trial court a pro se
petition for writ of habeas corpus that was denied. On appeal
from the order, this court concluded that the allegations
raised in the petition were cognizable under Rule 37.1 and
did not state a ground to issue the writ. The appeal was
dismissed. Carter v. State, CR-90-187 (Ark. Nov. 5,
1990) (unpublished per curiam). Carter then filed in the
trial court a petition for scientific testing of evidence
pursuant to Act 1780 of 2001 Acts of Arkansas, codified at
Arkansas Code Annotated sections 16-112-201 to 207 (Supp.
2003), based on a claim that the chain of custody of certain
evidence was not broken and could be used in his defense.
Ark. Code Ann. § 16-112-202(b). After a hearing at which
Carter was represented by counsel, the trial court denied the
petition, and we affirmed. Carter v. State,
CR-03-148 (Ark. Feb. 19, 2004) (unpublished per curiam).
Next, in 2005, Carter filed a petition for writ of habeas
corpus in the circuit court in the county in which he was
incarcerated. The petition was denied, and we affirmed the
order. Carter v. Norris, 367 Ark. 360, 240 S.W.3d
124 (2006) (per curiam).
2008, Carter filed another pro se petition for writ of habeas
corpus in the trial court pursuant to Act 1780. The trial
court held that Carter had already sought scientific testing
of evidence collected at the crime scene and that he had not
established that he was entitled pursuant to Arkansas Code
Annotated section 16-112-205(d) to file a subsequent petition
for scientific testing. The petition was denied, and we
affirmed the order. Carter v. State, 2010 Ark. 29
2011, Carter filed in this court a pro se petition in the
case 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 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. 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. 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
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.
2011 petition, Carter asserted a violation of the
requirements of Brady v. Maryland, 373 U.S. 83
(1963). 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 of the proceeding would have been
different." Strickler, 527 U.S. at 280 (quoting
United States v. Bagley, 473 U.S. 667, 682 (1985)).
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. Impeachment evidence that is
material, as well as exculpatory evidence, falls within the
Brady rule. Bagley, 473 U.S. 667.
Brady violation alleged by Carter in the 2011
petition was that the State withheld evidence from the
defense, but, as we noted in the opinion denying the
petition, the documents and testimony that he pointed to as
having been withheld did not exist at the time of trial. The
petition was denied. Carter v. State, 2011 Ark. 481
before us is Carter's second petition to reinvest
jurisdiction in the trial court in the case to consider a
petition for writ of error coram nobis. Carter asserts in the
second petition that he learned during the 2015 Act 1780
proceeding in the trial court that there were thirty-four
"negroid" hairs recovered from the rape
victim's pink bedsheet. He contends that at his trial in
1987 only one pubic hair and eight hair fragments had been
forensically tested and that the existence of the thirty-four
hairs had been concealed from the defense. He argues that he
would not have been found guilty had the thirty-four hairs
been tested at the time of trial because the hair examiner
would have had a larger pool of evidence to test.
not find that Carter has proven a Brady violation
because Carter has not demonstrated with facts that there is
a reasonable probability that the outcome of the trial would
have been different had the hair examiner had a larger pool
of hair samples to examine. At most, Carter has suggested
that more hair would have given the examiner more to compare;
he does not contend that more hair would necessarily have
ruled him out as the perpetrator. Moreover, even if it could
be said that not all of the hairs taken into evidence were
forensically examined at the time of trial, Carter has not
shown that there is a reasonable probability based on the
evidence adduced at trial that the outcome of the trial would
have been different if the hair examiner who testified at
trial had a greater number of hairs to test.
was evidence adduced at Carter's trial that in November
1986 a man entered the victim's home through a kitchen
window off a deck. He threatened to kill the victim with a
knife, searched her purse for money, raped her, beat her
repeatedly, and threatened that, if she called the police, he
would come back at a later time and cut her throat. The
assault lasted forty to forty-five minutes. In spite of his
threat, the victim called the police and gave a description
of the perpetrator. One night in January 1987, the victim
heard someone on the deck and saw a man pass by the window.
She called the police, and Carter was ...