MOTION TO RECALL THE MANDATE TO REINVEST JURISDICTION IN THE
TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM
NOBIS [PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION, NO.
K. WOOD, Associate Justice
Johnson III requests this court to reinvest jurisdiction in
the trial court so that it may consider a writ of error coram
nobis. Although Johnson titles his motion as one to recall
the mandate to seek this writ, he is mistaken in how to title
the motion. Instead, we consider the motion for the
substantive relief requested and treat it as a petition for
writ of error coram nobis. We conclude that Johnsons
petition is without merit. Accordingly, we deny relief.
understand his petition, a brief explanation of the facts is
necessary. Charles Gaskins died as a result of an aggravated
robbery by two masked men. While investigating the murder
scene, a detective was notified that a confidential informant
identified Johnson as a suspect. Later that day, the police
stopped a car in which Johnson was a passenger. Johnson sat
in the back-passenger seat while Johnsons codefendant, Donte
Davis, sat in the front-passenger seat. Police arrested both
Johnson and Davis. A gun located under Johnsons seat was
identified as the murder weapon. Police also confiscated a
cell phone that Johnson used to send a text stating that he
would be gone for life if caught on "this here
charge." Finally, two women passengers in the car
implicated Johnson in the murder. Johnson was convicted of
capital murder, and this court affirmed. Johnson v.
State, 2015 Ark. 387, 472 S.W.3d 486.
motion, Johnson primarily disputes the sufficiency of the
evidence. He also alleges various trial errors and
ineffective assistance of counsel. Specifically, he contends
that he was never identified at the murder scene, that there
were defects in a search warrant and some seizures,
that the gun found in the car did not belong to him and
instead belonged to Rhakelle Brown, and that testimony about
the statements he made after returning to the car were
admitted in error. Additionally, Johnson asserts claims
concerning the lack of aid rendered to the victim, the
admission of Browns testimony without corroboration,
testimony from an expert about the identification of the gun
as the murder weapon, and another experts testimony on the
lack of DNA evidence.
also attached an affidavit to his motion from Davis that
implicated Brown as Daviss true accomplice in the robbery.
In the affidavit, Davis asserts that Johnson had no knowledge
of the murder, that Johnson was picked up after the murder,
and that both the phone found on Johnson, and the gun found
in the car, belonged to Brown. Johnson appears to contend
that this affidavit is newly discovered evidence that would
exonerate him when considered in connection with alleged
violations of Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963) arising from the traffic
stop that uncovered the murder weapon.
of error coram nobis is an extraordinarily rare remedy, and
coram nobis proceedings are attended by a strong presumption
that the conviction is valid. Makkali v. State, 2019
Ark. 17, 565 S.W.3d 472. Fundamentally, the writ is a means
of obtaining relief from a judgment when there existed some
fact that would have prevented its rendition if the trial
court had known of its existence at the trial. Id.
Of course, the concealment of this fact cannot be
attributable to the defendants own negligence, and it is the
petitioners burden of demonstrating a fundamental error of
fact extrinsic to the record. Id.
writ is issued only under compelling circumstances to achieve
justice and to address errors of the most fundamental nature.
Id. These errors fall into 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. Martin v. State, 2018 Ark.
344, 2018 WL 6380740. Finally, the writ is only granted to
correct some error of fact. Mosley v. State, 2019
Ark. 14, 2019 WL 311002. It does not lie to correct trial
error or to contradict any fact already adjudicated.
Johnson alleges that a Brady violation occurred,
which falls within the third category of fundamental error
warranting the writs issuance. See Isom v.
State, 2018 Ark. 368, 563 S.W.3d 533. Johnson, however,
fails to identify any specific evidence that was withheld.
The mere fact that a petitioner alleges a Brady
violation is not sufficient to provide a basis for coram
nobis relief. Id. While a third-party confession,
can be a ground for the writ, Daviss affidavit—
confessing to the robbery and blaming Brown for the
shooting— does not fall within the time period during
which a writ of error coram nobis is available.
Cunningham v. State, 2019 Ark. 9, 564 S.W.3d 521.
Indeed, this type of claim must be raised after the
conviction, but before the case is decided on appeal.
Smith v. State, 301 Ark. 374, 784 S.W.2d 595 (1990).
Johnson also alleged more specifically that the evidence
against him was insufficient. But the writ will not lie to
retry the defendant or to reexamine the strength of the
evidence adduced at trial. Davis v. State, 2019 Ark.
20, 566 S.W.3d 111. A challenge to the sufficiency of the
evidence constitutes a direct attack on the judgment and is
not cognizable in a coram nobis proceeding. Buchanan v.
State, 2019 Ark. 19, 565 S.W.3d 469.
Finally, Johnsons ineffective assistance of counsel claims
are not cognizable in a coram nobis proceeding.
Martinez-Marmol v. State,2018 Ark. 145, 544 S.W.3d
49. Coram nobis proceedings are not to be used as a
substitute for raising claims of ineffective assistance of
counsel under our postconviction rule. Cunningham,
2019 Ark. 9, 564 S.W.3d 521. Because Johnson ...