KENNY TRAVIS, JR. PETITIONER
STATE OF ARKANSAS RESPONDENT
SECOND PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT
TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS
[MISSISSIPPI COUNTY CIRCUIT COURT, CHICKASAWBA DISTRICT, NO.
February 15, 2017, petitioner Kenny Travis, Jr., 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, which is the second such petition that Travis has
filed in this court. Travis again seeks permission to proceed
with a challenge to his 2006 judgment reflecting his
convictions in the Mississippi County Circuit Court on
charges of capital murder and aggravated robbery for the
death and robbery of J.W. Hall. When a petitioner appealed
his judgment of conviction, he must first request this court
to reinvest jurisdiction in the trial court before he may
attack that conviction by means of a petition for writ of
error coram nobis. Noble v. State, 2015 Ark. 141,
460 S.W.3d 774. Travis appealed the 2006 judgment, and this
court affirmed. Travis v. State, 371 Ark. 621, 269
S.W.3d 341 (2007). He has therefore correctly sought leave in
this court to proceed in the trial court.
that Travis raises claims in the petition that are based on
his allegations of prosecutorial misconduct. His previous
petition was based on allegations of trial error arising from
the denial of a motion for change of venue. See Travis v.
State, 2014 Ark. 82 (per curiam). While the issues
raised in Travis's second petition are different from
those raised in the first petition to proceed for the writ,
none has merit.
court will grant permission to proceed with a petition for
the writ only when it appears, looking to the reasonableness
of the allegations in the proposed petition and the existence
of the probability of the truth of those allegations, that
the proposed attack on the judgment is meritorious. Isom
v. State, 2015 Ark. 225, 462 S.W.3d 662. This court is
not required to accept at face value the allegations of the
petition. Penn v. State, 282 Ark. 571, 670 S.W.2d
coram nobis is an extraordinarily rare remedy, more known for
its denial than its approval. White v. State, 2015
Ark. 151, 460 S.W.3d 285. The remedy is exceedingly narrow
and appropriate only when an issue was not addressed or could
not have been addressed at trial because it was somehow
hidden or unknown. Clark v. State, 358 Ark. 469, 192
S.W.3d 248 (2004). 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 that, through no negligence or fault of
the defendant, was not brought forward before rendition of
the judgment. Green v. State, 2016 Ark. 386, 502
nobis proceedings are attended by a strong presumption that
the judgment of conviction is valid. Westerman v.
State, 2015 Ark. 69, 456 S.W.3d 374. This court has
recognized four categories of error for which the writ is
available: (1) insanity at the time of trial; (2) a coerced
guilty plea; (3) material evidence withheld by the
prosecutor; (4) a third-party confession to the crime during
the time between conviction and appeal. Noble, 2015
Ark. 141, 460 S.W.3d 774. The writ is issued only under
compelling circumstances to achieve justice and to address
errors of the most fundamental nature. Green, 2016
Ark. 386, 502 S.W.3d 524.
detailed summary of the evidence at trial may be found in our
opinion on direct appeal. Suffice it to say that there was
evidence presented by the State that Travis, Acquilla Ramsey,
and Kevin "Punch" Ransom went to Hall's auto
dealership to rob him, and during the robbery, Travis shot
and killed Hall. Travis alleges prosecutorial misconduct and
that the prosecution withheld an assortment of information,
including the following: an original recording of
Travis's confession that Andre Love made with his cell
phone; the coroner's report providing the date of the
crime; some lab results, reports, and notes that were
prepared in support of testimony at Travis's trial from
the crime-lab experts and the medical examiner; and two
interviews, one with an individual about an alternate suspect
and one with Acquilla. Travis additionally alleges a basis
for the writ because prosecutors issued an illegal arrest
warrant and interfered with the police investigation, were
aware of one or more rebuttal witness's presence in the
courtroom, admitted illegal evidence, and issued an illegal
search warrant. Interwoven within these arguments, Travis
alleges that the criminal informations charging him were
defective and resulted in a double-jeopardy violation; that
the record on appeal was not complete; that there were other
defective evidentiary rulings; that the prosecutor made
improper statements to the press; and that additional
information was withheld about Acquilla's juvenile
record, a search warrant, an altercation between Love's
wife and Travis's wife, and a video showing the purchase
of a lawnmower.
frames his proposed coram nobis claims in his second petition
as allegations of prosecutorial misconduct in violation of
Brady v. Maryland, 373 U.S. 83 (1963). While
allegations of a Brady violation fall within one of
the four categories of fundamental error that this court has
recognized, the fact that a petitioner alleges a
Brady violation alone is not sufficient to provide a
basis for error coram nobis relief. Green, 2016 Ark.
386, 502 S.W.3d 524. Although Travis attempts to couch each
of his claims as a Brady violation, most are simply
allegations of trial error, and none supports coram nobis
State is required to disclose all favorable evidence material
to the guilt or punishment of an individual. Newman v.
State, 2009 Ark. 539, 354 S.W.3d 61. Evidence is
material if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different. Thacker v.
State, 2016 Ark. 350, 500 S.W.3d 736. To establish a
Brady violation, three elements are required: (1)
the evidence at issue must be favorable to the accused,
either because it is exculpatory or because it is impeaching;
(2) that evidence must have been suppressed by the State,
either willfully or inadvertently; (3) prejudice must have
ensued. Green, 2016 Ark. 386, 502 S.W.3d 524. If the
alleged withheld evidence meets the requirements of a
Brady violation and is both material and
prejudicial, to justify issuance of the writ, the withheld
material evidence must also be such as to have prevented
rendition of the judgment had it been known at the time of
the trial. Id. When a petitioner has been diligent
and an evidentiary hearing is required to determine whether
the proposed attack is meritorious, this court may reinvest
jurisdiction for further proceedings. Howard v.
State, 2012 Ark. 177, 403 S.W.3d 38.
claims are not cognizable in coram nobis proceedings.
Green, 2016 Ark. 386, 502 S.W.3d 524. This court
does not consider allegations for the writ that are an
attempt to argue issues that were, or could have been,
addressed at trial or on direct appeal. Ashby v.
State, 2016 Ark. 205, 492 S.W.3d 71 (per curiam).
Travis's claims largely fall within that category of
claim. His allegations that the criminal informations and
arrest warrant were defective, including his claim of a
double-jeopardy violation; his allegations that evidence
should not have been admitted at trial, including any
evidence from an illegal search; his allegations that a
rebuttal witness or witnesses who had been in the courtroom
should not have testified or testified falsely; his
allegations that improper statements were made to the press;
and his allegations that the record on appeal should have
been supplemented are all issues that could have been
resolved at trial and on appeal.
nobis proceeding is not a means merely to contradict a fact
already adjudicated in the trial court. Carter v.
State, 2016 Ark. 378, 501 S.W.3d 375 (per curiam).
Allegations of prosecutorial misconduct that could have been
raised at trial, including an allegation that the prosecutor
failed to disclose information that was known at the time of
trial, fail for lack of diligence. Howard, 2012 Ark.
177, 403 S.W.3d 38; see also Howard v. State, 367
Ark. 18, 238 S.W.3d 24 (2006) (holding that claim of
prosecutorial misconduct was an issue that could have been
raised at trial and was therefore not cognizable in
proceedings under Criminal Procedure Rule 37.1).
there is no specific time limit for seeking a writ of error
coram nobis, due diligence is required in making an
application for relief. Green, 2016 Ark. 386, 502
S.W.3d 524. Due diligence requires that (1) the defendant be
unaware of the fact at the time of trial; (2) the defendant
could not have, in the exercise of due diligence, presented
the fact at trial; and (3) the defendant, after discovering
the fact, did not delay in bringing the petition.
Id. The requirements are a sequence of events, each
of which a petitioner must show to prove due diligence.
Id. This court will itself examine the diligence
requirement and deny a petition where it is evident that a
petitioner failed to proceed diligently. Roberts v.
State, 2013 Ark. 56, at 12, 425 S.W.3d 771, 778.
evidence that Travis contends was withheld by the prosecution
about Love's cell-phone recording was available at trial,
and those issues have been litigated, raised on appeal, and
settled. Travis, 371 Ark. 621, 269 S.W.3d 341.
Likewise, the evidence concerning the actual date that Hall
died and Hall's time of death as noted on the
coroner's report, which Travis contends was withheld, was