RICKEY C. STRAIN, JR. PETITIONER
STATE OF ARKANSAS RESPONDENT
PETITION TO RECALL MANDATE TO REINVEST JURISDICTION IN THE
TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM
NOBIS AND OTHER POSTCONVICTION RELIEF [JEFFERSON COUNTY
CIRCUIT COURT, NO. 35CR-05-937]
2008, petitioner Rickey C. Strain Jr. was found guilty by a
jury of first-degree murder and was sentenced to 300
months' imprisonment. The Arkansas Court of Appeals
affirmed. Strain v. State, 2009 Ark.App. 99. Strain,
with counsel, subsequently timely filed in the trial court a
verified petition for postconviction relief pursuant to
Arkansas Rule of Criminal Procedure 37.1 (2009) that was
denied. This court affirmed. Strain v. State, 2012
Ark. 42, 394 S.W.3d 294 (per curiam).
before this court is Strain's pro se petition to recall
the mandate to reinvest jurisdiction in the trial court to
consider a petition for writ of error coram
nobis. Strain contends he is entitled to relief
because there were inconsistent statements by Tommy Forrest
and Jimmy Massey; there was no mens rea to connect him to
having fired the gun or having killed anyone; reports
indicated that the codefendant shot and killed the victim;
the trial and appellate courts relied on his mere presence
during the crime for a finding of guilt; and the State
withheld evidence that witnesses had been bribed in exchange
for their testimony.
addressing the merits of Strain's claims for relief, a
recitation of the evidence adduced at his trial is necessary.
Although Strain's challenge to the sufficiency of the
evidence was not addressed on direct appeal, the evidence
presented was summarized. Strain, 2009 Ark.App. 99.
Two key witnesses, Jimmy Massey and Tommy Forrest, Jr.,
testified about the death of Wade Miller who was killed near
the 12th Street bridge in Pine Bluff on September 6, 2005.
Massey testified that about 4:00 a.m. on September 6, 2005,
he met Strain and Walter Sims, Strain's codefendant, at a
liquor store to buy cocaine from Sims. Strain and Sims
arrived in a car. After buying the drugs, Massey walked away,
and Strain and Sims drove away. After approximately ten
minutes, as he approached 12th Street, Massey saw the same
car that Strain and Sims had been driving parked by the curb,
and he saw Sims fighting with someone and then saw Sims fire
a weapon. The next day Sims told Massey not to tell anyone.
When questioned at trial about a pretrial statement, Massey
testified that he "saw the same two people that [he] had
met just prior to his kicking the crap out of someone and
then I saw them shoot." Massey indicated that his
recollection was likely more clear when he gave his statement
than when he testified at trial.
testified that he had known Sims all of his life and that he
knew Strain because he was often at Sims's house. Forrest
and the victim, Miller, were walking down 12th Street at 4:00
a.m. on September 6, 2005, to go to the bait shop, where
Forrest was going to meet with a man who owed him money. As
they were walking, a car pulled up, and Miller walked over to
the car to talk. Forrest continued walking down 12th Street.
When Forrest got to the end of the street, he turned around
and saw Sims and Strain beating up Miller. He saw Miller
running and heard gunshots. Forrest testified that he did not
see who was shooting because he ran across the street and hid
in the ditch. Forrest then saw the car that Sims and Strain
had been driving leave the area.
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. Green v. State,
2016 Ark. 386, 502 S.W.3d 524; see 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.
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.
grounds for issuance of the writ, Strain contends that there
was a defect in the case due to inconsistent statements made
by Forrest, who gave differing pretrial statements on
September 14, 2005, and March 22, 2006. Strain further
contends that his trial counsel, the prosecutor, or the court
should have "caught" these inconsistencies. Along
these lines, Strain also argues that a pretrial statement
made by Massey on March 6, 2006, is inconsistent with a
statement made on September 14, 2005. Moreover, Strain
contends that the evidence was insufficient to convict him
and was misleading, misinforming, and
"misinstructing" to the jury. None of these claims
raised by Strain fall within the purview of a coram nobis
proceeding because they are not errors 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
concerning the sufficiency of the evidence are not cognizable
in coram nobis proceedings. Ventress v. State, 2015
Ark. 181, 461 S.W.3d 313 (per curiam). The question of the
sufficiency of the evidence is to be settled at trial and on
the record on direct appeal. Carter v. State, 2016
Ark. 378, 501 S.W.3d 375 (per curiam). Both Massey and
Forrest testified-Massey even noted that his prior statements
were more accurate during his testimony-and their testimony
was subject to cross-examination by the defense and the
circumstances of the pretrial statements could have been
brought out. See Grant v. State, 2016 Ark. 82, at 5,
484 S.W.3d 272, 276 (per curiam). Issues concerning the
credibility of the witnesses are matters to be settled at
trial and are not cognizable in coram nobis proceedings.
See Pinder v. State, 2015 Ark. 423, at 4-5, 474
S.W.3d 490, 496 (per curiam). Moreover, this court has
repeatedly held that ineffective-assistance-of-counsel and
trial-error claims are not grounds for the writ. Green v.
State, 2016 Ark. 386, 502 S.W.3d 524; White v.
State, 2015 Ark. 151, 460 S.W.3d 285. Claims of
ineffective assistance of counsel are properly raised in a
timely petition for postconviction relief pursuant to
Arkansas Rule of Criminal Procedure 37.1 (2016). Mason v.
State, 2014 Ark. 288, 436 S.W.3d 469 (per curiam). A
petition for writ of error coram nobis is not a substitute
for raising an issue under Rule 37.1. Travis v.
State, 2014 Ark. 82 (per curiam). As to the allegations
of trial error, by its very nature, an issue concerning a
trial court's ruling could have been settled in the trial
court and on the record on direct appeal. Johnson v.
State, 2015 Ark. 170, at 5, 460 S.W.3d 790, 794 (per
curiam). Accordingly, the allegation that the trial court
made some mistake in its rulings, including rulings
concerning the admissibility of evidence, is not within the
purview of a coram nobis proceeding. See Smith v.
State, 2015 Ark. 188, 461 S.W.3d 345 (per curiam).
further argues that there was no evidence introduced and no
connection linking him to the crime as the person who fired
the gun or who killed anyone; he contends that a report
indicated it was his codefendant who shot the victim.
Strain's arguments regarding his mere presence or
accomplice claims are essentially claims that the evidence
was not sufficient to sustain the judgment of conviction.
See Wallace v. State, 2015 Ark. 349, at 11, 471
S.W.3d 192, 199 (per curiam) (Wallace's allegation was
that the acts of his accomplices, rather than any act by him
that was proved at trial, caused the victim's death,
which is an argument against the sufficiency of the
evidence.). Again, this court has held that issues concerning
the sufficiency of the evidence are not cognizable in coram
nobis proceedings. Philyaw v. State, 2014 Ark. 130
(per curiam). The question of the sufficiency of the evidence
is to be settled at trial and on the record on direct
Strain contends that the trial court allowed evidence to be
withheld because the two star witnesses received leniency in
exchange for their testimony, arguably alleging a Brady
v. Maryland, 373 U.S. 83 (1963) violation. However,
Strain specifically references only one witness, Forrest, by
stating that the "record is clear."
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) ...