PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO
CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [PULASKI
COUNTY CIRCUIT COURT, FOURTH DIVISION, NO. 60CR-08-474]
A. WOMACK, Associate Justice
before this court is petitioner Michael Dashun Jackson's
pro se petition to reinvest jurisdiction in the trial court
to consider a petition for writ of error coram nobis.
Jackson's claims for coram nobis relief are based on
allegations that the prosecutor withheld material evidence in
violation of Brady v. Maryland, 373 U.S. 83 (1963).
Jackson was convicted of capital murder, criminal attempt to
commit capital murder, and aggravated robbery with a firearm
enhancement, and sentenced to life in prison without parole.
We affirmed. Jackson v. State, 2011 Ark. 9, 429
petition, Jackson alleges that the prosecution withheld
evidence that the investigating detective, Dane Pedersen, had
coerced Tina Jefferson into providing testimony implicating
Jackson in the crimes; that the prosecution failed to
disclose a videotaped pretrial statement provided to
investigators by Jackson's codefendant, Cherick Coleman;
and that the prosecution withheld evidence that a third
party, Charles Bullock, was arrested and found in possession
of a weapon involved in the crimes. A review of the
direct-appeal record demonstrates that the material evidence
alleged to have been withheld by prosecutors was known to the
defense at the time of Jackson's trial, and Jackson has
failed to demonstrate a Brady violation or to
otherwise establish a basis for coram nobis relief.
Accordingly, we deny the petition to procced in the trial
court with a coram nobis petition.
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.
Jackson asserts that material evidence was withheld by the
prosecutor in violation of Brady. 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; (3) prejudice must have ensued. Carner v.
State, 2018 Ark. 20, 535 S.W.3d 634 (citing
Strickler v. Greene, 527 U.S. 263 (1999)). When
determining whether a Brady violation has occurred,
it must first be established by the petitioner that the
material was available to the State prior to trial and that
the defense did not have it. Id.
first allegation of a Brady violation involves the
allegedly coerced testimony of his cousin, Jefferson. Jackson
attaches an affidavit executed by Jefferson stating that
Pedersen had detained her and threatened that the prosecutor
would move to revoke her probation, which would result in a
twenty-year prison sentence unless she assisted in the
conviction of Jackson. She further asserts in the affidavit that
she had informed Jackson and his counsel of the threats made
by Pedersen prior to Jackson's trial. This particular
allegation contained in Jefferson's affidavit undermines
Jackson's Brady claim in that it demonstrates
that the defense was aware of the facts set forth in the
affidavit at the time of trial, and it cannot be said that
such material was available to the State but not to the
the direct-appeal record demonstrates that Jefferson was
cross-examined at great length with regard to the alleged
threats made by Pedersen if she had failed to testify.
Clearly, the allegations contained in Jefferson's
affidavit were well known by Jackson and his trial counsel at
the time of the trial. A fundamental requirement for coram
nobis relief is the discovery of exculpatory information that
was extrinsic to the record, that is, it was unknown to the
defense and was not brought forward before rendition of the
judgment. Roberts, 2013 Ark. 56, 425 S.W.3d 771. The
alleged coercion of Jefferson does not constitute a fact that
was extrinsic to the record, nor does it support
Jackson's claim of a Brady violation.
Howard, 2012 Ark. 177, 403 S.W.3d 38.
second basis for coram nobis relief involves an allegation
that portions of pretrial statements made by Coleman to
Pedersen had been videotaped but were not made available to
the defense. A review of the direct-appeal record reveals
that the existence of another videotaped statement by Coleman
was contested at trial. Coleman had testified that he spoke
with Pedersen for thirty to forty minutes before he provided
a videotaped statement, while Pederson testified that the
entire interview had been videotaped. Jackson attaches to his
petition Pedersen's testimony in this regard. Jackson
asserts that those portions of Coleman's pretrial
interview referenced in Pedersen's testimony were not
disclosed by the prosecution and that the failure to disclose
the existence and content of a second videotaped statement
was prejudicial in that the allegedly missing videotaped
statement contained exculpatory or impeaching evidence.
Jackson also alleges that Pedersen had made promises to
Coleman in exchange for his testimony and attaches to his
petition Coleman's testimony wherein Coleman asserted
that Pedersen had promised him that he would be considered
only a witness to the crimes and not a suspect if Coleman
provided a statement to investigators describing the crimes
and the participants.
fails to provide sufficient evidence that a second videotaped
statement was extant nor does he describe the exculpatory or
impeaching evidence that would have been contained therein.
Claims without a factual basis are not grounds for the writ.
Carner, 2018 Ark. 20, 535 S.W.3d 634; see also
McCullough v. State, 2017 Ark. 292, 528 S.W.3d 833,
reh'g denied (Dec. 14, 2017) (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).
Furthermore, while Coleman testified that portions of his
interview with Pedersen had not been videotaped, he affirmed
that any statements made to Pedersen during the course of the
entire interview were consistent with his testimony
implicating Jackson. Again, the possible existence of a
second videotape of Coleman's interview and any promises
made to Coleman during the course of the interview were
matters that were addressed at the time of Jackson's
trial. Evidence that promises were made to Coleman in
exchange for his cooperation was considered by the jury
before it rendered its guilty verdict.
Finally, Jackson alleges that the prosecution withheld
material evidence with respect to Bullock, who was found in
possession of the victim's gun during a traffic stop and
arrested as a result.  Jackson contends that the information that
Bullock was found in possession of the gun constituted
material exculpatory evidence in that it would have provided
evidence that Bullock was the true perpetrator. Again, the
direct-appeal record contradicts Jackson's claims. The
record reveals that Pedersen testified that the victim's
gun had been "recovered during an unrelated traffic
stop." Moreover, the record further demonstrates that
Bullock was present and ready to testify on behalf of the
State at the end of the first day of Jackson's trial and
was instructed by the court to return the following morning.
However, Bullock was not called as a witness on the second
day of the trial. Nevertheless, Pedersen's testimony,
describing the recovery of the victim's gun in an
unrelated incident, and the identification of Bullock as a
witness for the State shows that the circumstances
surrounding the discovery of the victim's gun were known
to the defense at the time of trial. Furthermore, because
Bullock was designated as a witness for the State, the
prosecution was obligated to provide his name and address to
the defense prior to trial. See Ark. R. Crim. P.
17.1 (2009). Like his first two claims, Jackson's
allegations regarding Bullock and the victim's gun fail
to establish either a Brady violation or a
fundamental error of fact extrinsic to the record.
Roberts, 2013 Ark. 56, 425 S.W.3d 771.