THIRD PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO
CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS [GARLAND
COUNTY CIRCUIT COURT, NO. 26CR94-486]
A. WOMACK, ASSOCIATE JUSTICE
Tommy Mosley filed his third petition requesting this court
to reinvest jurisdiction in the trial court so that he may
file a petition for writ of error coram nobis. Because Mosley
reasserts the same grounds as in his previous petition, but
without providing additional facts sufficient to provide
grounds for the writ, we dismiss the petition. See
Chatmon v. State, 2017 Ark. 229.
Alleged Grounds for the Writ
latest petition, Mosley proposes four grounds for issuance of
the writ. First, he alleges that he was denied counsel after
trial and on appeal so that he could present
prosecutorial-misconduct claims in a pro se posttrial motion
that he filed. In the remaining three proposed grounds for
the writ, Mosley asserts that the prosecution withheld (1)
evidence concerning his vehicle that had been seized, (2)
statements made by the victim, (3) the victim's underwear
worn prior to the rape, (4) DNA results, and (5) medical test
of error coram nobis is an extraordinarily rare remedy in
which the petitioner has the burden of demonstrating a
fundamental error of fact extrinsic to the record.
Jackson v. State, 2018 Ark. 227, 549 S.W.3d 356. 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
writ is allowed under compelling circumstances to achieve
justice and to address errors of the most fundamental nature.
Wooten v. State, 2018 Ark. 198, 547 S.W.3d 683. 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. The writ is only granted to correct
some error of fact, and it does not lie to correct trial
error or to contradict any fact already adjudicated.
Smith v. State, 200 Ark. 767, 767, 140 S.W.2d 675,
standard of review for granting permission to reinvest
jurisdiction in the circuit court to pursue a writ of error
coram nobis requires that this court grant permission for a
petitioner to proceed only when it appears the proposed
attack on the judgment is meritorious. Howard v.
State, 2012 Ark. 177, 403 S.W.3d 38. In making such a
determination, we must look to the reasonableness of the
allegations of the petition and to the existence of the
probability of the truth thereof. Id.
second petition to reinvest jurisdiction in the trial court
to proceed with a petition for the writ, Mosley raised claims
based on ineffective assistance of counsel and withheld
evidence and his lack of representation for those claims.
Mosley v. State, 2018 Ark. 152, 544 S.W.3d 55. As we
noted in our opinion dismissing that petition, ineffective
assistance of counsel is not a ground for the writ.
Id. Mosley again argues these rejected claims, and
he attempts to expand his argument by characterizing these
claims as a denial of counsel. He contends that, because
denial of counsel is fundamental error, he should be
permitted to bring that claim in coram nobis proceedings.
Mosley, however, makes only conclusory allegations that he
was denied counsel without providing facts to support that
claim. His claims amount to claims of ineffective assistance
despite his attempt to label them otherwise.
second petition, Mosley alleged two related claims that the
State, in violation of Brady v. Maryland, 373 U.S.
83 (1963), withheld evidence concerning the vehicle Mosley
was driving and the victim's statements about an accident
that had occurred and damaged the vehicle. Mosley contended
that this withheld evidence would have bolstered his
testimony that his fight with the victim occurred before
consensual sex and would have discredited the victim's
testimony that they fought immediately before and during the
dismissing the second petition, this court noted that Mosley
must establish the three elements of a Brady
violation to show grounds for the writ: (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.
Mosley, 2018 Ark. 152, 544 S.W.3d 55. We held that
Mosley failed to establish the second element because he did
not indicate when he learned that the State had concealed the
victim's statement. Id. Additionally, he failed
as to the third element because the evidence that Mosley
alleged had been withheld, even if it impeached the victim
concerning the fight, failed ...