WALTER A. MCCULLOUGH PETITIONER
STATE OF ARKANSAS RESPONDENT
SECOND PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT
TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS
[CRAIGHEAD COUNTY CIRCUIT COURT, WESTERN DISTRICT, NO.
A. Womack, Associate Justice
Walter A. McCullough was convicted of committing a terrorist
act and first degree battery in 2005 and brings his second
pro se petition to reinvest jurisdiction in the trial court
to consider a petition for writ of error coram nobis. We deny
his petition because it is without merit.
alleges again that the State, and his trial counsel, violated
Brady v. Maryland, 373 U.S. 83 (1963), by
threatening and intimidating material witnesses from
testifying at trial, not revealing to the defense every
person who was interviewed by the State, and encouraging
witnesses to provide false testimony.
petition for leave to proceed in the trial court is necessary
because the judgment in McCullough's case was affirmed,
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. 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. Id. 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. The 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.
making the determination of whether the writ should issue, we
look to the reasonableness of the allegations in the petition
and to the existence of the probability of truth thereof.
Id. A writ of error coram nobis is an
extraordinarily rare remedy and there is a strong presumption
that the judgment of conviction is valid. State v.
Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000);
Westerman v. State, 2015 Ark. 69, at 4, 456 S.W.3d
Brady violation is a ground for issuance of the writ
and 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;
Howard, 2012 Ark. 177, at 8, 403 S.W.3d at 45.
Impeachment evidence that is material, as well as exculpatory
evidence, falls within the Brady rule.
Bagley, 473 U.S. at 676.
support his claim he attaches the affidavit of Tonya R.
Allen, the witness who was allegedly prevented from
testifying at trial, as well as two affidavits that were
brought in his first coram nobis proceeding in 2008.
affidavit was sworn May 5, 2017, and avers that she has
knowledge of "witness threats & coercion and
intimidation as to the prosecution team's tactics use
[sic] to wrongfully and illegally convict Walter A.
McCullough." She names two persons whose testimony was
allegedly suppressed but does not set out what testimony
those persons would have given or the potential significance
of that testimony. She also names two witnesses who testified
at McCullough's trial who she alleges committed perjury.
Allen further alleges, without factual substantiation, that
she was "at arraignment as a witness, " but could
not testify because "they said I had a gun charge,
" and thus she was discredited as a witness even though
the claim was false. Allen's affidavit does not state a
ground for the writ because it contains no substantiation for
the claim that the State suppressed the testimony of any
potential witness. Such factual substantiation is required to
establish a Brady violation. Green v.
State, 2016 Ark. 386, at 7, 502 S.W.3d 524, 529.
second affidavit, dated January 14, 2009, is that of Bobby
Liles, who states that he originally intended to be a witness
for McCullough's defense but changed his story and
testified for the State after a jailer told him that
McCullough had implicated Liles in a "host of
crimes." Liles further accuses another witness for the
State of having lied in his testimony. Liles states that he,
too, gave false testimony in exchange for help from the State
with his own criminal charges. The third affidavit, also
dated January 14, 2009, is from James Lumley. Lumley avows
that he was present when Liles signed his affidavit and can
attest that Liles was not coerced into preparing his
"affidavit of recantation." As stated, the
affidavits of both Liles and Lumley were a part of the first
coram nobis petition that McCullough filed in this court in
2008, which we previously addressed.
has not established a Brady violation. All the
allegations are conclusory, without any factual basis, they
are not sufficient to demonstrate that material evidence was
withheld by the State in violation of Brady. The
burden is on the petitioner in the application for coram
nobis relief to make a full disclosure of specific facts
relied upon and not to merely state conclusions as to the
nature of such facts. See Cloird v. State, 357 Ark.
446, 450, 182 S.W.3d 477, 479 (2004). McCullough has failed
to establish that there is a reasonable probability that the
judgment of conviction would not have been rendered or would
have been prevented had specific exculpatory evidence been
disclosed at his trial.