PETITION TO REINVEST JURISIDICTION IN THE TRIAL COURT TO
CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [WASHINGTON
COUNTY CIRCUIT COURT, NOS. 72CR-08-1654; 72CR-09-247]
A. WOMACK, ASSOCIATE JUSTICE
Dellemond Cunningham was convicted of being an accomplice to
aggravated robbery, an accomplice to theft of property, and a
felon in possession of a firearm, as well as intimidating a
witness, for which he was sentenced to an aggregate sentence
of 444 months' imprisonment. He appealed only the
conviction for witness intimidation, and the Arkansas Court
of Appeals affirmed. Cunningham v. State, 2010
Ark.App. 130. Cunningham subsequently filed in the trial
court a timely pro se petition for postconviction relief
pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009).
The petition was denied, and this court affirmed.
Cunningham v. State, 2013 Ark. 304, 429 S.W.3d 201
(per curiam). Cunningham now brings this pro se petition to
reinvest jurisdiction in the trial court to consider a
petition for writ of error coram nobis in which he contends
that the prosecution withheld videotape or audiotape evidence
of Barving Price's police interview and that Marcus
Green, Cunningham's accomplice, gave a third-party
confession. Because Cunningham fails to demonstrate in
the petition that the writ should issue, the petition is
circuit court cannot entertain a petition for writ of error
coram nobis after a judgment has been affirmed on appeal
unless this court grants permission. Martinez-Marmol v.
State, 2018 Ark. 145, at 2, 544 S.W.3d 49, 51. A writ of
error coram nobis is an extraordinarily rare remedy.
State v. Larimore, 341 Ark. 397, 406, 17 S.W.3d 87,
92 (2000). Coram nobis proceedings are attended by a strong
presumption that the judgment of conviction is valid.
Green v. State, 2016 Ark. 386, at 2, 502 S.W.3d 524,
526. 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
circuit court and that, through no negligence or fault of the
defendant, was not brought forward before rendition of the
judgment. Carner v. State, 2018 Ark. 20, at 2, 535
S.W.3d 634, 636. The petitioner has the burden of
demonstrating a fundamental error of fact extrinsic to the
record. Roberts v. State, 2013 Ark. 56, at 11, 425
S.W.3d 771, 777.
writ is allowed under compelling circumstances to achieve
justice and to address errors of the most fundamental nature.
Roberts, 2013 Ark. 56, at 11, 425 S.W.3d at 778. 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. Howard v. State, 2012 Ark. 177, at 4,
403 S.W.3d 38, 43. A court is not required to accept the
allegations in a petition for writ of error coram nobis at
face value. Jackson v. State, 2017 Ark. 195, at 7,
520 S.W.3d 242, 246.
first point, Cunningham asserts that the prosecutor withheld
material evidence during the trial in violation of Brady
v. Maryland, 373 U.S. 83 (1963). Specifically, he
alleges that the prosecutor withheld videotape and audiotape
evidence of Barving Price's police interview and that the
interview would have shown that Price was "led and
coerced to make certain statements, implying that [ ]
Cunningham was an active participant in the planning [and]
aiding of Green in the commission of the aggravated robbery
of a bank[.]" Cunningham noted his own interrogation and
compared that to Price's in an attempt to expose the
police in "their conduct during the said interrogation
and interview" of Price. Cunningham fails to demonstrate
he is entitled to relief.
are three elements to a Brady violation: (1) the
evidence at issue must be favorable to the accused, either
because its 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.
Jackson v. State, 2018 Ark. 227, at 3, 549 S.W.3d
356, 358-59 (citing Carner, 2018 Ark. 20, 535 S.W.3d
634). When determining whether a Brady violation has
occurred, it must be established by the petitioner that the
material was available to the State and that the defense did
not have it. Cloird v. State, 357 Ark. 446, 452, 182
S.W.3d 477, 480 (2004).
Rule 37 appeal reveals that he challenged his counsel's
ability to properly introduce a transcript of a police
interview of Barving Price. See Cunningham, 2013
Ark. 304, at 7-8, 429 S.W.3d 201, 207-08. During the
detective's testimony, Cunningham's counsel attempted
unsuccessfully to admit evidence of Price's police
interview, which Cunningham contended would have shown the
disparity in treatment that he and Price received during
their respective interviews. Id. Cunningham had also
argued that his counsel should have objected to Price's
testimony as hearsay because the testimony "implied that
he was an active participant in the robbery."
Cunningham, 2013 Ark. 304, at 8, 429 S.W.3d at 208.
Clearly, any video or audio recording of Price's police
interview was not extrinsic to the record, and Cunningham was
well aware of its existence at the time of trial. Simply put,
Cunningham fails to allege facts sufficient to support his
claim of a Brady violation.
second point, Cunningham contends that Green, his accomplice,
gave a third-party confession by pleading guilty to the
charged offense of aggravated robbery prior to
Cunningham's trial. The very nature of Cunningham's
argument-that his accomplice confessed by pleading
guilty-fails to establish a ground for issuance of the writ
because a writ of error coram nobis is available for
addressing a third-party confession to the crime
during the time period between conviction and
appeal. See Howard, 2012 Ark. 177, at 4, 403
S.W.3d at 43. Both Cunningham and Green were accomplices, and
Cunningham had not been convicted when Green allegedly made
this third-party confession. Even if Green's guilty plea
could arguably be deemed a "third-party
confession," it does not fall within the time period
during which Cunningham could have raised such a claim for
coram nobis relief-between conviction and appeal. See
Howard, 2012 Ark. 177, at 4, 403 S.W.3d at 43.
Cunningham has failed to demonstrate the writ should issue.
Attached to Cunningham's petition
is a pleading titled "'Supplemental Pleading'
Toward Petition for Error Coram Nobis" in where he
attempts to raise multiple claims of ineffective assistance
of counsel as a basis to reinvest jurisdiction in the trial
court to consider a petition for writ of error coram nobis.
Those claims, however, are not cognizable in a coram nobis
proceeding under our state law. Martinez-Marmol,
2018 Ark. 145, at 6, 544 S.W.3d at 53. Coram nobis
proceedings are not to be ...