APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT; PRO SE MOTIONS
FOR APPOINTMENT OF COUNSEL WITH MEMORANDUM OF LAW AND FOR
PRODUCTION OF DOCUMENTS [NO. 60CR-06-1822]
Broderick Don Scott, pro se appellant.
Rutledge, Att'y Gen., by: Kristen C. Green, Ass't
Att'y Gen., for appellee.
COURTNEY HUDSON GOODSON, Associate Justice.
2006, appellant Broderick Don Scott entered a plea of guilty
to first-degree battery, two counts of committing a
terroristic act, possession of a firearm by certain persons,
aggravated assault, and first-degree terroristic threatening,
for which he was sentenced to an aggregate term of 360
months' imprisonment. In 2013, Scott filed in the trial
court a pro se petition for writ of error coram nobis
challenging the judgment, and on November 26, 2013, the
petition was denied. Scott did not file a notice of appeal
until February 19, 2014, eighty-five days after the order had
been entered. This court denied Scott's motion for
belated appeal for failure to establish good cause for the
untimely filing of the notice of appeal. Scott v.
State, 2014 Ark. 199 (per curiam).
April 20, 2016, Scott again sought coram nobis relief in the
trial court. Scott filed an amended pro se petition on May 5,
2016. The trial court, addressing the May 5, 2016 amended
coram nobis petition, denied relief and noted that it had
found Scott's first coram nobis petition untimely in 2013
and that Scott's current petition, filed ten years after
imposition of sentence, "would be no timelier than the
first." Scott has lodged an appeal from the order
denying relief. Scott's motion for appointment of counsel
and motion for production of documents are also pending
before this court.
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 v. State, 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.
standard of review for the denial of a petition for writ of
error coram nobis is whether the trial court abused its
discretion in granting or denying the writ. Nelson v.
State, 2014 Ark. 91, at 3-4, 431 S.W.3d 852, 854-55
(citing Newman v. State, 2014 Ark. 7). An abuse of
discretion happens when the trial court acts arbitrarily or
groundlessly. Id. A hearing is not required if the
petition clearly has no merit, either because it fails to
state a cause of action to support issuance of the writ, or
because it is clear from the petition that the petitioner did
not act with due diligence. Id.
appeal, Scott contends that (1) he was denied due process
when the prosecutor withheld evidence; (2) he is actually
innocent of the offense and that the State withheld
exculpatory evidence, specifically in violation of Brady
v. Maryland, 373 U.S. 83 (1963); and (3) he was denied
the right to confront the victim because the exculpatory
evidence was withheld. To the extent that Scott argues he is
actually innocent of the offenses of which he was convicted,
those assertions do not establish a ground for the writ
because they constitute a direct attack on the judgment.
Wallace v. State, 2016 Ark. 400, at 12-13, 503
S.W.3d 754, 761 (per curiam) (claim of actual innocence
amounts to a challenge to the sufficiency of the evidence and
is a direct challenge on the judgment below that is not
cognizable in a coram nobis proceeding). Regarding his
right-to-confront claim, Scott argues that he "could
have detailed the nature of the statement during the direct
examination of Tamiko Woolford." The nature of this
argument is conclusory and unclear and is not cognizable in a
coram nobis proceeding because it does not allege insanity at
the time of the trial, a coerced guilty plea, material
evidence withheld by the prosecutor, or a third-party
confession to the crime during the time between conviction
and appeal. Green v. State, 2016 Ark. 386, 502
S.W.3d 524. Even if arguably an attack on his guilty plea,
Scott does not specifically contend that his plea was not
voluntary or that it was coerced, and he waived the right to
a trial and to confront witnesses. See Carter v.
State, 2012 Ark. 186 (per curiam).
his claim of a Brady violation, Scott argued that,
unbeknownst to him until 2013, evidence consisting of a
statement made by the victim, Tamiko Woolford, was filed on
April 3, 2006, in the North Little Rock District Court--the
court in which he was initially arraigned. Scott contended
that the State, either willfully or inadvertently, withheld
the exculpatory statement that would have prevented him from
pleading guilty, and the State's failure to disclose it
constituted a Brady violation. The statement was
file-marked in the North Little Rock District Court; and
Scott argues that although the prosecutor may not have
specifically been aware of the exculpatory evidence, its
existence is imputed to the prosecution in his case. He
further contends that, had his trial counsel received the
exculpatory evidence, the outcome of the matter would have
been different and he would not have entered a plea of guilty
in September 2006. Scott argues that the State's failure
to disclose the exculpatory evidence entitles him to a
hearing on the matter for the trial court to decide the
merits of his coram nobis petition.
State's response on appeal is twofold. First, the State
contends that the trial court's order should be affirmed
because Scott was not diligent in pursuing coram nobis
relief. Specifically, even assuming that Scott was unaware of
the statement until 2013, as he claims, he was not diligent
in seeking relief because the petition that forms the basis
of this appeal was not filed until three years after he had
claimed to discover the fact upon which it is premised and
nearly ten years after the judgment had been entered. Second,
the State contends that Scott failed to obtain a ruling on
his argument regarding the Brady violation, which
precludes appellate review. Alternatively, the State contends
that Scott's claim is not meritorious. The State argues
that Scott has failed to offer specific facts beyond his own
assertion to show that the State was aware of the
victim's statement or that the defense did not have it.
The State further argues that the North Little Rock District
Court file-mark stamp does not reflect that the victim's
statement was filed in any case and that the record, as
presented, "does not support [Scott's] claim that
the Pulaski County prosecutor, much less any prosecutor, was,
or could have been, aware of the witness's statement,
which was file-marked in a separate court in another
jurisdiction but unrelated to any particular case."
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) ...