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
James 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
Johnson's petition is without merit. Accordingly, we deny
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 Johnson's codefendant,
Donte Davis, sat in the front-passenger seat. Police arrested
both Johnson and Davis. A gun located under Johnson's
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
Brown's testimony without corroboration, testimony from
an expert about the identification of the gun as the murder
weapon, and another expert's testimony on the lack of DNA
also attached an affidavit to his motion from Davis that
implicated Brown as Davis's 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
(1963) arising from the traffic stop that uncovered the
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 defendant's own negligence, and it is
the petitioner's 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. Finally, the writ is only granted to correct some error
of fact. Mosley v. State, 2019 Ark. 14. It does not
lie to correct trial error or to contradict any fact already
alleges that a Brady violation occurred, which falls
within the third category of fundamental error warranting the
writ's 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, Davis's 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.
Johnson's 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 ...