MOTION FOR EXTENSION OF TIME TO LODGE THE APPELLANT'S
BRIEF [CLARK COUNTY CIRCUIT COURT, NO. 10CR-15-19]
k. Wood, Associate Justice.
James Gray, Jr., appeals from the denial of a pro se petition
for a writ of error coram nobis wherein he alleged that his
guilty plea was not voluntarily or intelligently entered with
the assistance of competent counsel. Pending before this
court is Gray's motion for an extension of time to file
his appellate brief. An appeal from an order that denied a
petition for postconviction relief, including a petition for
writ of error coram nobis, will not be permitted to go
forward where it is clear that the appellant could not
prevail. See Brown v. State, 2017 Ark. 232, at 2,
522 S.W.3d 791, 792; see also Justus v. State, 2012
Ark. 91, at 2. A review of the record demonstrates that
Gray's allegations are not cognizable in coram nobis
proceedings, and he therefore cannot prevail on appeal.
Accordingly, the appeal is dismissed, and the motion for
extension of brie time is moot.
error coram nobis proceedings, the presumption is that the
judgment of conviction is valid. Nelson v. State,
2014 Ark. 91, at 3, 431 S.W.3d 852, 854. The function of the
writ is to provide relief from a judgment entered when there
existed some fact that would have prevented its entry had the
trial court known of it, and that, through no negligence or
fault of the defendant, was not brought forward before entry
of the judgment. Id. The writ is issued only under
compelling circumstances to achieve justice and to address
errors of the most fundamental nature, and it is available to
address only 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.
April 2016, Gray pleaded guilty to first-degree murder and
aggravated robbery. On April 10, 2017, almost a year after
the sentencing order had been entered, Gray filed a petition
seeking coram nobis relief and alleged the following: he did
not waive his constitutional right to competent counsel at
the time of his plea; counsel ineffectively negotiated his
plea agreement; counsel erroneously advised him that he would
be required to serve seventy percent of his sentence, when in
fact, he must serve 100 percent of his sentence of 564
months' imprisonment; and he was coerced into pleading
guilty with threats of the possibility of being sentenced to
life imprisonment. In sum, Gray has alleged entitlement to
coram nobis relief primarily on the basis of allegations of
ineffective assistance of counsel.
Ineffective-assistance-of-counsel claims are not cognizable
in error coram nobis proceedings. Under our state law, coram
nobis proceedings are not to be used as a substitute for
raising claims of ineffective assistance of counsel under
Arkansas Rule of Criminal Procedure 37.1 (2016) and are not
interchangeable with proceedings under Rule 37.1, which is
the remedy for asserting allegations of ineffective
assistance of counsel. State v. Tejeda-Acosta, 2013
Ark. 217, at 8-9, 427 S.W.3d 673, 678. The writ is not
available when a mistake or error of law is made by counsel.
allegation that his guilty plea was coerced is equally
unavailing. This court has previously recognized that a writ
of error coram nobis is available if a petitioner establishes
that he guilty as a result fear, duress, or threats of mob
violence. Nelson, 2014 Ark. 91, at 4, 431 S.W.3d at
855. Gray did not allege that his guilty plea resulted from
any form of physical or psychological duress but instead
alleged that he had been threatened with the possibility of a
life sentence. It is well settled that mere pressure to plead
guilty occasioned by the fear of a more severe sentence is
not considered coercion. Id.
dismissed; motion moot.
Josephine Linker Hart, Justice, dissenting.
court has denied Mr. Gray due process by dismissing his
appeal. The only matter that was pending before this court in
Mr. Gray's appeal was his motion for an extension of time
to file his brief. Mr. Gray timely informed this court via
his motion that, because of problems with the photocopier at
the prison, he needed more time to procure the eight copies
of his brief that our rules require. See Ark. Sup.
Ct. R. 4-7(c)(4). Because Mr. Gray had not perfected his
appeal, this court did not have jurisdiction to decide his
appeal on the merits.
with his motion, Mr. Gray tendered a single copy of his
brief. If the majority was motivated by some notion of
efficiency, it could have waived the copying requirement
because this case was submitted electronically to the various
justices' chambers. The majority could also have amended
Rule 4-7(c)(4) to eliminate the copying requirement effective
with Mr. Gray's filing. That course of action would be
consistent with this court's authority under the Arkansas
Constitution, which gives us the authority to prescribe all
rules of practice and procedure. Ark. Const. amend. 80 §
3. It was through the exercise of this authority that this
court adopted Rule 4-7, which establishes the parameters of
Mr. Gray's due-process rights. The right to due process
is guaranteed by both the Arkansas Constitution and the U.S.
court does not have jurisdiction to "review the
record" and decide that Mr. Gray cannot prevail in his
appeal. It is telling that the majority relies on Brown
v. State, 2017 Ark. 232, 522 S.W.3d 791, as authority
for this undertaking. Brown involved a
declaratory-judgment action in which this court dismissed the
appeal because there was no justiciable issue. Id.
That disposition is consistent with other
declaratory-judgment appeals. See, e.g., Baptist
Health Systems v. Rutledge, 2016 Ark. 121, 488 S.W.3d
507. It is disingenuous for the majority to call a
declaratory judgment a "post-conviction" case
simply because an incarcerated person filed it. The customary
disposition-dismissal-of a declaratory-judgment appeal in
which a jurisdictional element of the cause of action is
found to be absent is not authority for dismissing a petition
for writ of error coram nobis.
court should never deny a litigant due process. Moreover, I,
for one, am mindful that the right of access to the courts
found in the Arkansas ...