SABA A. MAKKALI PETITIONER
STATE OF ARKANSAS RESPONDENT
THIRD PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO
CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS AND MOTIONS
FOR APPOINTMENT OF COUNSEL AND TO AMEND MOTION FOR
APPOINTMENT OF COUNSEL [JEFFERSON COUNTY CIRCUIT COURT, NO.
R. BAKER, Associate Justice
Saba A. Makkali brings this petition to reinvest jurisdiction
in the trial court so that he may file a petition for writ of
error coram nobis in his criminal case. He has also filed a
motion for appointment of counsel and a motion to amend the
motion for appointment of counsel. It is the third such
petition filed in this court. In the petition, Makkali
contends that the State, in violation of Brady v.
Maryland, 373 U.S. 83 (1963), withheld the fact that
fingerprints other than his own were found inside the van
that he was convicted of stealing. Because we find that
Makkali's claim does not establish a ground for the writ
and further find that he did not exercise due diligence in
bringing the claim, the petition is denied. The denial of the
petition renders the motions for appointment of counsel and
to amend the motion for appointment of counsel moot.
Nature of the Writ
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. Newman v.
State, 2009 Ark. 539, 354 S.W.3d 61. 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. Green v. State,
2016 Ark. 386, 502 S.W.3d 524. 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. Newman, 2009 Ark.
539, 354 S.W.3d 61. 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
Grounds for the Writ
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. Howard v.
State, 2012 Ark. 177, 403 S.W.3d 38.
who was formerly known as Gary Cloird, is incarcerated
pursuant to a 1992 conviction for rape and theft of a van for
which he was sentenced to thirty years' imprisonment for
rape and five years' imprisonment and a $1000 fine for
theft. The sentences were ordered to run consecutively. This
court affirmed. Cloird v. State, 314 Ark. 296, 862
S.W.2d 211 (1993). In 2002, Makkali's first petition to
reinvest jurisdiction in the trial court to consider a
petition for writ of error coram nobis was granted by this
court. Cloird v. State, 349 Ark. 33, 76 S.W.3d 813
(2002) (per curiam). The coram nobis petition alleged that
DNA evidence related to the rape had not been turned over to
defense counsel in violation of Brady. After a
hearing on the petition, the trial court denied relief, and
we affirmed. Cloird v. State, 357 Ark. 446, 182
S.W.3d 477 (2004). In 2011, Makkali filed a second coram
nobis petition that was denied by per curiam order.
Claim of a Brady Violation
establish a Brady violation, the petitioner must
satisfy three elements: (1) the evidence at issue must be
favorable to the accused, either because it is exculpatory or
because it is impeaching; (2) that evidence must have been
suppressed by the State, either willfully or inadvertently;
(3) prejudice must have ensued. Howard, 2012 Ark.
177, 403 S.W.3d 38. The mere fact that a petitioner alleges a
Brady violation is not sufficient to provide a basis
for error coram nobis relief. Wallace v. State, 2018
Ark. 164, 545 S.W.3d 767; see also Penn v. State,
282 Ark. 571, 670 S.W.2d 426 (1984) (a mere naked allegation
that a constitutional right has been invaded will not suffice
to warrant issuance of the writ).
contends that the State violated Brady by not
revealing that fingerprints belonging to two other known
suspects had been found in the van. He argues that evidence
of the presence of fingerprints not his own would have
established to the jury that he did not steal the van.
has not demonstrated a ground on which the writ should issue.
There was testimony at Makkali's trial that there were
fingerprints found in the van, but the investigating officers
testified that there was no fingerprint or other physical
evidence that tied Makkali to the theft. Further, defense
counsel argued in closing that no fingerprint evidence
implicating Makkali had been retrieved from the van. Thus, it
was clearly known at the time of trial that there was
fingerprint evidence in the van, but there was no fingerprint
evidence to support the State's charge that Makkali had
stolen the van. The bare fact that the fingerprints of two
other men were found in the van was not proof that Makkali
was never in the van.
the evidence concerning the fingerprints of other persons in
the van was not in itself sufficient to establish that
Makkali did not commit the theft, Makkali has not met his
burden of showing that he was prejudiced in violation of
Brady. Moreover, in determining whether the
petitioner was prejudiced, the totality of the evidence to
support the judgment must be considered. The strength of the
evidence adduced at a petitioner's trial is an important
consideration in a coram nobis proceeding because the court
must weigh the significance of the information that was
alleged to have been concealed from the defense against the
totality of the evidence to determine if the hidden
information or evidence at issue would have been such as to
have prevented rendition of the judgment had the existence of
that material been known at the time of trial.Goins v.
State, 2018 Ark. 312, at 6, 558 S.W.3d 872, 876. The
mere fact that the fingerprints of two other people were
found in the van does not establish that there existed some
fact that would have ...