SECOND PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT
TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS; MOTION
REQUESTING COURT TO SEEK DISCOVERY INFORMATION [PULASKI
COUNTY CIRCUIT COURT, FOURTH DIVISION, NO. 60CR-98-28]
LINKER HART, Associate Justice
Pending before this court is Michael Antonio Daviss pro se
second petition to reinvest jurisdiction in the trial court
to consider a petition for writ of error coram nobis. Also
pending is Daviss motion requesting discovery. In this
second petition, Davis alleges that the prosecution withheld
evidence with respect to agreements entered into between the
prosecutor and a witness for the State, John Frawley, in
violation of Brady v. Maryland, 373 U.S. 83, 83
S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, Davis
contends that the prosecutor misled the jury in the opening
statement in which the jury was informed that Frawley,
despite his cooperation with the State, would be required to
serve a prison sentence in the Arkansas Department of
Correction (ADC). Davis asserts that, under the terms of the
agreements between Frawley and the State, the prosecutor had
recommended that Frawley serve a two-year sentence in a
regional-punishment facility rather than in the ADC. To
support his allegation, Davis attached to his petition copies
of the agreements that Davis alleges were withheld from the
defense. Assuming the factual allegations in Daviss petition
are true, he establishes the first prong of Brady .
However, Daviss petition does not establish the prejudice
prong of Brady ; even if Frawley had not been
permitted to testify at all, there would not be a reasonable
probability of a different outcome in light of the rest of
the evidence presented at trial.
1998, Davis was found guilty of aggravated robbery,
kidnapping, and theft of property, and he was sentenced as a
habitual offender to consecutive terms of imprisonment of
thirty years, life, and ten years. We affirmed the judgment.
Davis v. State, CR 98-1180, 2000 WL 378350 (Ark.
April 13, 2000)(unpublished per curiam). In 2005, Davis filed
in this court his first petition to reinvest jurisdiction in
the trial court to consider a petition for writ of error
coram nobis on the basis that Daviss "jail-house
confession," which was the subject of Frawleys trial
testimony, could not have occurred because records
subsequently discovered by Davis demonstrated that Davis had
not been housed with Frawley in the county jail. According to
Daviss first petition for error coram nobis relief, the
State had withheld these records in violation of
Brady . We denied Daviss petition. Davis v.
State, CR 98-1180, 2005 WL 2792336 (Ark. Oct. 27, 2005)
(unpublished per curiam). As stated, Davis raises a new
contention in this second coram nobis petition.
writ of error coram nobis is sought after the judgment has
been affirmed on appeal, as in this case, the trial court may
entertain the petition only after this court grants
permission. Coram nobis proceedings are attended by a strong
presumption that the judgment of conviction is valid.
Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771. A
writ of error coram nobis is an extraordinarily rare remedy.
Id. Indeed, it is more known for its denial than its
approval. Id. In order for the writ to issue
following the affirmance of a conviction and sentence, the
petitioner must show a fundamental error of fact extrinsic to
the record. Id. The function of the writ is to
secure relief from a judgment rendered while there existed
some fact that
would have prevented rendition of the judgment had it 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 petitioner has
the burden of demonstrating a fundamental error of fact
extrinsic to the record. Id.
of error coram nobis is allowed only under compelling
circumstances to achieve justice and to address errors of the
most fundamental nature. Id. The writ is available
for addressing errors 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. ; Hill v. State,
2017 Ark. 121, 516 S.W.3d 249. We will reinvest jurisdiction
in the trial court to consider error coram nobis relief only
when the proposed attack on the judgment is meritorious.
Roberts, 2013 Ark. 56, 425 S.W.3d 771. In making
this determination, we look to the reasonableness of the
allegations in the petition and to the probability of the
truth thereof. Id.
alleges in his petition that Frawley was the only material
witness to connect Davis to the crime and that, had the
defense known about the terms of the agreements between
Frawley and the prosecutor, Frawleys testimony would have
been discredited. Davis asserts that the prosecutor, in
violation of Brady, intentionally misled the jury
during opening remarks and elicited false testimony from
Frawley regarding his exposure to a term of imprisonment in
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. There are three elements of a Brady
violation: (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; (3) prejudice must
have ensued. Carner v. State, 2018 Ark. 20, 535
S.W.3d 634 (citing Strickler v. Greene, 527 U.S.
263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). When a
petitioner alleges a Brady violation as the basis
for his or her claim of relief in coram nobis proceedings,
the facts alleged in the petition must establish that there
was evidence withheld that was both material and prejudicial
such as to have prevented rendition of the judgment had it
been known at the time of trial that such evidence existed.
Martinez-Marmol v. State, 2018 Ark. 145, 544 S.W.3d
49. Evidence is material if there is a reasonable probability
that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different.
Id. The burden is on the petitioner in an
application for a writ of coram nobis to make a full
disclosure of specific facts that substantiate the merit of a
Brady claim. Mosley v. State, 2018 Ark.
152, 544 S.W.3d 55.
support of his Brady claim, Davis attached to his
petition copies of documents titled "agreed
recommendation of punishment." The agreements specify
that prosecutors would recommend that Frawley serve a
two-year sentence in a regional-punishment facility (RPF),
and that this punishment was to be served consecutively to