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Mosley v. State

Supreme Court of Arkansas

January 24, 2019




         Petitioner 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.

         I. Alleged Grounds for the Writ

         In his 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 ineffective-assistance-of-counsel and 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 results.

         II. Standard

         A writ 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 judgment. Id.

         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, 766 (1940).

         Our 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.

         III. Denial-of-Counsel Claim

         In his 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.

         IV. Withheld-Evidence Claims

         In his 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 rape.

         When 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 ...

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