TOMMY R. MOSLEY PETITIONER
STATE OF ARKANSAS RESPONDENT
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.
A. WOMACK, ASSOCIATE JUSTICE.
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.
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
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.
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.
Ineffective Assistance of Counsel
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.
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.
Sufficiency of the Evidence to Sustain the Judgment
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
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