THIRD PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO
CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS AND MOTION
FOR LEAVE TO FILE RESPONSE TO STATE'S RESPONSE TO
PETITION [GARLAND COUNTY CIRCUIT COURT, NO. 26CR-08-142]
DENIED; MOTION MOOT.
2008, petitioner Edward Carter was found guilty by a jury of
aggravated robbery and was sentenced to 360 months'
imprisonment. The Arkansas Court of Appeals affirmed.
Carter v. State, 2009 Ark.App. 683.
2015, Carter filed in this court a 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, as well as an amendment to it, were denied.
Carter v. State, 2015 Ark. 397 (per curiam). On
August 17, 2016, Carter filed a second such petition that was
also denied. Carter v. State, 2016 Ark. 378, 501
S.W.3d 375 (per curiam). On November 30, 2016, Carter filed a
third coram-nobis petition, which is now before us. Carter
has also filed a motion for leave to file a response to the
State's response to the petition. As there is clearly no
merit to the petition, it is denied, and the motion is moot.
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 had
it 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.
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.
adduced at Carter's trial reflected that he and Jessica
Brewer were shopping at a Wal-Mart store at the same time
Salli Reding and Shannon Smith were shopping in the store.
Reding observed Carter placing video games inside his
clothing. When Carter left the store without paying for the
games, Reding followed him outside and confronted him about
his failure to pay. At that point, Carter pulled a gun from
his pocket, cocked it, and pointed it at Reding. Smith
testified that she did not see Carter pull out the gun but
saw a gun in Carter's hand down at his side after Reding
stepped back and called out, "He's got a gun."
Brewer also testified to seeing a gun at Carter's side.
Carter then left the parking lot with Brewer and went to a
resale shop where he sold the stolen games as used
direct appeal, Carter argued that the State failed to prove
that he had actual, unauthorized possession of merchandise
from Wal-Mart, that there was no proof that a security alarm
sounded when he left the store, and that no representative of
the store testified to a loss of the merchandise. He
contended that, without proof of the theft, there could be no
aggravated robbery. The court of appeals rejected the
arguments, finding that there was substantial evidence of a
theft. Carter, 2009 Ark.App. 683, at 3. The court of
appeals held that aggravated robbery occurred when physical
force was threatened. Id.
grounds for his first petition for a writ of error coram
nobis, Carter contended that the State violated Brady v.
Maryland, 373 U.S. 83 (1963). He reiterates the claim in
the second petition and again in this third petition.
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. 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)). 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. Impeachment evidence that is
material, as well as exculpatory evidence, falls within the
Brady rule. Bagley, 473 U.S. 667. 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 to those claims. Isom, 2015
Ark. 225, 462 S.W.3d 662.
first petition, Carter based his Brady claim on the
following assertions: Carter did not take, or manifest the
intention to take, anything of value from Reding; the only
crimes that Reding could have witnessed were shoplifting by
Brewer, who stole the video games, and, if Brewer passed
those games to Carter, Reding was a witness only to
Carter's being an accomplice to shoplifting; the State
used a statement from a Wal-Mart customer as evidence that an
aggravated robbery had occurred; Reding was a witness only to
the aggravated robbery of Randall Nichols, a Wal-Mart
employee; the affidavit in support of the arrest warrant for
aggravated robbery recited facts that supported only a
showing of shoplifting or accomplice to shoplifting; the
victim was Wal-Mart, not Reding; Carter was charged with one
crime and convicted of another because there was no robbery;
in her pretrial statement, Reding speaks as though she were a
police officer or "some type of store security"
rather than an ordinary shopper, and this constituted a
"fabricated affidavit" that was used to obtain an
arrest warrant; Carter's Fifth Amendment right to remain
silent was violated because the "court stated that
[Carter] did not confess to a shoplifting charge so he cannot
rely on it now"; Carter did not know that he was being
tried for committing an aggravated robbery against Reding;
the State did not disclose that Reding was testifying as a
witness rather than a victim, and, as a result, she could not
be asked if she believed that Carter had any intention of
taking anything of value from her by threat or force; and the
State allowed Reding's perjured testimony to be
introduced at trial.
court denied the relief sought in the first petition because
it was abundantly clear that the claims raised by Carter were
challenges to the sufficiency of the evidence adduced at
trial rather than a violation of Brady in that he
offered nothing to demonstrate that any material evidence had
been concealed from the defense. Carter, 2015 Ark.
397, at 5. Issues concerning the sufficiency of the evidence
are not cognizable in coram nobis proceedings. Ventress
v. State, 2015 Ark. 181, at 6, 461 S.W.3d 313, 317 (per
curiam). The question of the sufficiency of the evidence is
to be settled at trial and on the record on direct appeal.
Sims v. State, 2012 Ark. 458 (per curiam). The
claims of trial error were outside the purview of a coram
nobis proceeding. Howard, 2012 Ark. 177, 403 S.W.3d
38. Even constitutional issues that could have been addressed
at trial are not within the purview of the writ. See
Watts v. State, 2013 Ark. 485, at 7 (per curiam).
second petition for the writ, Carter repeated some of the
claims and again sought to challenge the evidence adduced at
trial, and he again complained of trial error. He argued
that, if there had been a proper arraignment in a timely
manner, no court would have found the evidence sufficient to
bind him over for trial in the circuit court. He further
contended that only a photograph of the gun was produced at
trial; that the gun in the photograph was a toy that could
not be cocked; that the Wal-Mart manager did not give a sworn
statement or testify at trial even though the manager was the
complainant; and that any aggravated robbery was against
Reding, but he ...