PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO
CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS AND PRO SE
MOTION FOR APPOINTMENT OF COUNSEL [ASHLEY COUNTY CIRCUIT
COURT, NO. 02CR-06-197]
2007, a jury found petitioner Myron Newjean Anderson, Jr.,
guilty of five counts of a terroristic act and one count of
being a felon in possession of a firearm. The jury imposed an
aggregate sentence of 1320 months' imprisonment in the
Arkansas Department of Correction. The Arkansas Court of
Appeals affirmed. Anderson v. State, CR-08-458 (Ark.
App. Jan. 28, 2009) (unpublished) (original docket no.
CACR08-458). Anderson timely filed a petition for
postconviction relief under Arkansas Rule of Criminal
Procedure 37.1 (2008) that the trial court denied. Anderson
lodged an appeal from the denial, and this court dismissed
the appeal. Anderson v. State, 2009 Ark. 493 (per
curiam). On December 7, 2016, Anderson filed this pro se
petition seeking to reinvest jurisdiction in the trial court
to consider a petition for writ of error coram
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. 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 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.
seeks leave to proceed in the trial court for a writ of error
coram nobis contending there was prosecutorial misconduct
based on the State's reliance on perjured or false
testimony. He further contends that the State failed to
disclose exculpatory evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963).
Anderson's trial, evidence established that he was a
felon, that he was in the nightclub shooting a firearm on the
night in question, and that seven people were shot.
Anderson, CR-08-458, slip op. at 1. On appeal,
Anderson argued that the "testimony from the witnesses
was so inconsistent that it was unreliable."
Id. Anderson failed to cite to any authority or
advance any argument for the untenable assertion that mere
inconsistency in the testimony of different witnesses, in and
of itself, so destructive of the jury's ability to
discern the truth that it somehow renders
otherwise-sufficient evidence insufficient to support a
criminal conviction, and the court of appeals did not address
his directed-verdict-motion argument on appeal. Id.
Anderson makes conclusory claims that the prosecutor
permitted false testimony by Courtney Hampton, Reco Webb,
Harold McDade, Scott Williams, and Billy Ray Brown to go
"uncorrected[.]" While arguing that the identity of
the perpetrator was at issue during the investigation and
trial, Anderson contends that, because the State's case
was entirely based on the witnesses' testimony, it was
"more likely than not that no reasonable [j]uror would
have found petitioner guilty beyond a reasonable doubt."
He fails to argue relief warranted by issuance of the writ.
writ of error coram nobis does not lie to correct an issue of
fact that has been adjudicated, even though wrongly
determined, or for alleged false testimony at trial.
Chatmon v. State, 2015 Ark. 417, 473 S.W.3d 542 (per
curiam). When an issue could have been raised at trial or is
cognizable in some other legal proceeding, that issue is not
cognizable in a coram nobis proceeding. Id.
Allegations of prosecutorial misconduct, excepting
Brady violations, or false testimony are the type
that could have been raised at trial, and the claims are
therefore not the type that provide grounds for the writ.
Id. Moreover, to the extent that Anderson's
assertions concerning the allegedly false testimony could be
considered claims that the evidence was insufficient to
sustain the judgment, issues concerning the sufficiency of
the evidence or the credibility of the witnesses are not
cognizable in error coram nobis proceedings. Pinder v.
State, 2015 Ark. 423, 474 S.W.3d 490 (per curiam).
contends that the State "suppressed the [t]erroristic
[a]ct elements with[-] holding the true nature of the charges
against [him]" resulting in a Brady violation.
Specifically, he contends that the terroristic-act
statute's language is inconsistent. He argues that
section "(A)(1)" states that one commits a
terroristic act when he or she "shoots at or in any
manner projects an object, with the purpose to cause injury
to another person or other person or damage to property, at a
conveyance which is being operated or which is occupied by
another person or persons" which is inconsistent with
section "(A)(1)(a), " which "requires shoots
at or in any manner projects an object with the purpose to
cause injury to another person."
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.
person commits a terroristic act when, while not in the
commission of a lawful act, "he or she shoots at or in
any manner projects an object, with the purpose to cause
injury to another person or other persons or damage to
property, at a conveyance which is being operated or which is
occupied by another person or persons." Ark. Code Ann.
§ 5-13-310(a)(1) (Repl. 2006). A person also commits a
terroristic act when, while not in the commission of a lawful
act, "he or she shoots, with the purpose to cause injury
to a person or persons or damage to property, at an
occupiable structure." Ark. Code Ann. §
5-13-310(a)(2) (Repl. 2006). Contrary to Anderson's
claim, there is no subsection "(A)(1)(a)" in
claim is not one seeking relief for a Brady
violation. He fails to point to any evidence-material or
exculpatory-that was withheld by the State or that any
prejudice ensued. In fact, Anderson fails to establish the
existence of any fact or evidence extrinsic to the record
because any defect in the criminal information could have
been discovered or raised in the trial court.Smith v.
State, 2016 Ark. 201, 491 S.W.3d 463 (per curiam).
Claims that a petitioner either could have known, or knew, at
the time of trial do not provide grounds for issuance of a
writ of error coram nobis. Id. Moreover, to the
extent Anderson raises a claim of statutory interpretation,
again, it does not fall within the purview of a coram nobis
proceeding because it is not an error found in one of the
four above-referenced categories of error, i.e., insanity at
the time of trial, a coerced guilty plea, material evidence
withheld by the prosecutor, or a third-party
confession.Howard, 2012 Ark. 177, 403 S.W.3d
38. None of the claims raised by Anderson demonstrate that
there was some fundamental error at trial or that there
existed some fact which would have prevented rendition of ...