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Mosley v. State

Supreme Court of Arkansas

April 26, 2018

TOMMY R. MOSLEY PETITIONER
v.
STATE OF ARKANSAS RESPONDENT

          PRO SE SECOND PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS AND MOTION TO FILE A NONCOMPLIANT BRIEF/ RESPONSE AND FOR EXTENSION OF TIME [GARLAND COUNTY CIRCUIT COURT, NO. 26CR-94-486]

          SHAWN A. WOMACK, ASSOCIATE JUSTICE.

         Petitioner Tommy R. Mosley brings this pro se petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis in his criminal case. As the petition is without merit, and Mosley failed to act with due diligence in bringing it, the petition is dismissed. Mosley also seeks by motion to file a "noncompliant brief/response" and for extension of time. The motion is a request to file a response to the State's response to Mosley's coram nobis petition. As there is no provision in the prevailing rules of procedure to file a response to a response, and Mosley has not stated good cause to file a response to a response, the motion is denied.

         I. Background

         Mosley was convicted in 1995 of rape and sentenced as a habitual offender to life imprisonment. This court affirmed. Mosley v. State, 323 Ark. 244, 914 S.W.2d 731 (1996). In 1998, Mosley filed his first coram nobis petition here, which we denied. Mosley v. State, 333 Ark. 273, 968 S.W.2d 612 (1998) (per curiam). In this second petition, he alleges that (1) he was denied effective assistance of counsel; (2) he was not afforded a hearing by this court or the federal courts on his claims of ineffective assistance of counsel and thus he was unable to establish that he was actually innocent of rape; (3) the evidence adduced at trial did not support the judgment; and (4) the defense was prejudiced by the State's withholding of the victim's description of a vehicle accident that occurred on the day of the offense. The State, in addition to asserting that Mosley has failed to state a ground for the writ, also suggests that the petition should be dismissed for lack of diligence in bringing the claims approximately twenty-two years after he was convicted and approximately nineteen years after his first coram nobis petition was denied.

         Mosley's petition for leave to proceed in the trial court is necessary because the trial court cannot entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal unless this court grants 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 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 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.

         In making the determination of whether the writ should issue, this court looks to the reasonableness of the allegations in the petition and to the existence of the probability of the truth thereof. Id. A writ 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. Westerman v. State, 2015 Ark. 69, 456 S.W.3d 374.

         II. Ineffective Assistance of Counsel

         Mosley argues at length throughout the petition that he was denied effective assistance of counsel, that he has never been allowed a full hearing on his ineffective-assistance-of-counsel allegations, that he has never had the opportunity to be represented by an attorney in bringing his ineffective-assistance-of-counsel claims in state or federal court, and that the federal courts erred in ruling on his ineffective-assistance-of-counsel claims. He further argues that Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 569 U.S. 413 (2013), and the progeny of those cases, dictate that he was entitled to appointment of counsel in his court challenges to his conviction on the ground of ineffective assistance of counsel. The arguments do not fit within the purview of a coram nobis action.

         We have repeatedly held that ineffective-assistance-of-counsel is not a ground for the writ. Green v. State, 2016 Ark. 386, 502 S.W.3d 524; White v. State, 2015 Ark. 151, 460 S.W.3d 285. The United States Supreme Court's rulings in Martinez and Trevino do not pertain to coram nobis proceedings. Claims of ineffective assistance of counsel are properly raised in a timely petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1, and a petition for writ of error coram nobis is not a substitute for that remedy. Mason v. State, 2014 Ark. 288, 436 S.W.3d 469 (per curiam). A coram nobis action is also not a means to challenge a federal court's ruling on ineffective-assistance-of-counsel claims.

         III. Sufficiency of the Evidence to Sustain the Judgment

         Mosley's claim that the evidence adduced at his trial was insufficient to prove that he was guilty of rape is not a ground for the writ. Challenges to the sufficiency of the evidence constitute a direct attack on the judgment and are not cognizable in a coram nobis proceeding. Grady v. State, 2017 Ark. 245, 525 S.W.3d 1. Allegations that the evidence presented at trial was not sufficient to support a finding of the defendant's guilt are issues to be addressed at trial, and, when appropriate, on the record on direct appeal. Jackson v. State, 2017 Ark. 195, 520 S.W.3d 242.

         IV. Evidence Withheld by the State

         It is a violation of Brady v. Maryland, 373 U.S. 83 (1963), and a ground for the writ if the defense was prejudiced because the State wrongfully withheld evidence from the defense prior to trial. The Court held in Brady that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. There are three elements of a 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 v. Greene, 527 U.S. 263 (1999). When determining whether a Brady ...


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