PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO
CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS; PRO SE
MOTION FOR LEAVE TO REPLY TO STATE'S RESPONSE [MILLER
COUNTY CIRCUIT COURT NO. 46CR-10-97]
COURTNEY HUDSON GOODSON, ASSOCIATE JUSTICE
before this court is petitioner James Ray Thompson's pro
se petition to reinvest jurisdiction in the trial court to
consider a petition for writ of error coram nobis and a pro
se motion to reply to the State's response to his coram
nobis petition. Thompson's primary claim for coram nobis
relief is based on an allegation that the prosecutor withheld
material evidence in violation of Brady v. Maryland,
373 U.S. 83 (1963). The material evidence that Thompson
asserts was withheld consisted of a recording of the
victim's call to a 911 dispatcher wherein she stated that
someone "tried" to rape her, which Thompson
maintains is exculpatory and impeaching. Thompson contends
that a copy of the audio recording of the victim's call
to 911 was not disclosed in pretrial discovery, nor was a
transcript of that recording produced either before or during
the trial. We find from a review of the trial record that
Thompson failed to demonstrate a fundamental error extrinsic
to the record that would have prevented rendition of the
judgment; therefore, we deny both the petition and his pro se
motion to file a reply to the State's response.
convicted Thompson of two counts of rape, and he was
sentenced to two ten-year consecutive terms of imprisonment.
The Arkansas Court of Appeals affirmed the convictions and
sentences. Thompson v. State, 2011 Ark.App. 605.
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. Roberts v.
State, 2013 Ark. 56, 425 S.W.3d 771. A writ of error
coram nobis is an extraordinarily rare remedy. Id.
Coram nobis proceedings are attended by a strong presumption
that the judgment of conviction is valid. Id.;
Westerman v. State, 2015 Ark. 69, 456 S.W.3d 374.
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. Roberts, 2013 Ark. 56, 425 S.W.3d 771. The
petitioner has the burden of demonstrating a fundamental
error of fact extrinsic to the record. Id.
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. Id.;
Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.
review of the trial transcript reveals that the prosecutor
played the entire recording of the victim's 911call at
Thompson's trial. Moreover, the audio recording was admitted
into evidence and remains in the record lodged on direct
appeal. Based on the trial record, the jury heard and
considered the victim's statements to the 911 dispatcher
before rendering its guilty verdict. Furthermore, the
recording itself reveals that, while the victim initially
stated that Thompson tried to rape her outside her apartment,
when asked by the dispatcher if the assailant had raped her,
she answered "yes, " and explained that she had
been raped inside her apartment. The victim's statement
to the dispatcher was entirely consistent with her trial
testimony, wherein she described being confronted by Thompson
outside her apartment, and when she resisted his advances,
Thompson threatened her at gunpoint, forced her inside her
apartment, and raped her.
warrant coram nobis relief, Thompson has the burden of
demonstrating a fundamental error extrinsic to the record
that would have prevented rendition of the judgment had it
been known and, through no fault of Thompson's, was not
brought forward before rendition of judgment.
Roberts, 2013 Ark. 56, 425 S.W.3d 771. Moreover, the
fact that a petitioner merely alleges a Brady
violation is not sufficient to provide a basis for error
coram nobis relief. See Penn v. State, 282 Ark. 571,
670 S.W.2d 426 (1984) (stating that a mere naked allegation
that a constitutional right has been invaded will not suffice
to warrant coram nobis relief). 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.
Howard, 2012 Ark. 177, 403 S.W.3d 38.
fails to allege sufficient facts to establish an essential
element warranting coram nobis relief in that the
victim's recorded statement was not extrinsic to the
record and did not prevent the rendition of the verdict.
Roberts, 2013 Ark. 56, at 11, 425 S.W.3d at 778. If,
during his trial, Thompson was unaware of the victim's
allegedly inconsistent statement, it was the result of his
own inadvertence. For the same reasons, Thompson fails to
state sufficient facts to establish a meritorious
Brady claim because the victim's statement was
not exculpatory, was not suppressed, and did not prejudice
the outcome of the trial. Howard, 2012 Ark. 177, 403
S.W.3d 38. Thompson's additional claims that the
prosecutor was required to provide a transcript of the 911
recording and misled the jury in closing argument by
emphasizing the consistency of the victim's statements to
the dispatcher and her trial testimony are equally
denied; motion denied.
 Thompson also alleges that the state
withheld pages thirty-nine and forty of a seventy-four page
investigative case file introduced into evidence during a
pretrial hearing conducted on June 15, 2010, and speculates
that these two pages likely contained a transcript of the
victim's 911 call. A review of the record demonstrates
that the allegedly withheld evidence consisting of pages
thirty-nine and forty of the investigative file were included
as exhibit two in a subsequent pretrial hearing conducted on
August 20, 2010. Page thirty-nine is a waiver of rights form
signed by Thompson and page forty is a consent to search form
also signed by Thompson.
 The contents of the recording had not
been transcribed into the record, but it is noted in the
record that a portion of the recording was played to lay a
proper foundation for its admission into evidence after which
the "remainder ...