PRO SE
PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO
CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS; PRO SE
MOTION FOR LEAVE TO REPLY TO STATE RESPONSE TO MOTION TO
REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A
PETITION FOR WRIT OF ERROR CORAM NOBIS [PULASKI COUNTY
CIRCUIT COURT, SEVENTH DIVISION, NO. 60CR-15-2832]
Calvin
Thornton, pro se petitioner.
Leslie
Rutledge, Att'y Gen., by: Karen Virgina Wallace,
Ass't Att'y Gen., for respondent.
KAREN
R. BAKER, ASSOCIATE JUSTICE
Petitioner
Calvin Thornton has filed a petition to reinvest jurisdiction
in the trial court to consider a petition for writ of error
coram nobis in which he alleges that a third party confessed
to the crime during the time between his conviction and the
completion of his direct appeal. Thornton subsequently filed
a motion for leave to file a reply to the State's
response to his petition. Because Thornton did not timely
file his petition, and because he otherwise failed to state
sufficient facts establishing his entitlement to the writ, we
deny the petition. Our rules do not permit a reply to a
response to a coram nobis petition; therefore, Thornton's
motion for leave to file a reply to the State's response
to his petition is denied.
Thornton
was convicted by a jury of aggravated robbery and
first-degree murder and was sentenced to an aggregate term of
600 months' imprisonment. His convictions and sentences
were affirmed by the Arkansas Court of Appeals. Thornton
v. State, 2018 Ark.App. 33, 539 S.W.3d 624.
The
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. Roberts v.
State, 2013 Ark. 56, 425 S.W.3d 771. A writ of error
coram nobis is an extraordinarily rare remedy. Id.
Coram nobis proceedings are attended by a strong presumption
that the judgment of conviction is valid. Id.;
Westerman v. State, 2015 Ark. 69, 456 S.W.3d 374.
The function of the writ is to secure relief from a judgment
rendered while there existed some fact that would have
prevented its rendition 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.
Roberts, 2013 Ark. 56, 425 S.W.3d 771. The
petitioner has the burden of demonstrating a fundamental
error of fact extrinsic to the record. Id.
The
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. Id.;
Howard v. State, 2012 Ark. 177, 403 S.W.3d 38.
The
burden is on the petitioner in the application for coram
nobis relief to make a full disclosure of specific facts
relied on and not to merely state conclusions as to the
nature of such facts. Rayford v. State, 2018 Ark.
183, 546 S.W.3d 475. In addition, a petition to reinvest
jurisdiction in the trial court to consider a petition for
writ of error coram nobis based on an allegation of a
third-party confession must be filed in the appellate court
before the judgment of conviction has been affirmed on
appeal. Penn v. State, 282 Ark. 571, 670 S.W.2d 426
(1984); see also Smith v. State, 301 Ark. 374, 784
S.W.2d 595 (1990) (coram nobis remedy was merely expanded to
include as a ground for relief a confession by a third party
to the crime after the trial and before the appellate court
decided the case on appeal).
Here,
Thornton makes a conclusory allegation of a third-party
confession to the crime during the time between conviction
and appeal. Thornton does not name the third party who
allegedly confessed, nor does he offer any other evidence to
establish its existence. Furthermore, an allegation that a
third party has confessed to the crime must be raised in a
petition for coram nobis relief that is filed before the
judgment of conviction has been affirmed on appeal.
Thornton's petition is therefore untimely. See
Thornton, 2018 Ark.App. 33, 539 S.W.3d 624.
There
is no provision that allows a petitioner to file a reply to a
response to a coram nobis petition. See Ark. Sup.
Ct. R. 2-1(a)(d) (2018). Moreover, Thornton's motion
appears to raise new arguments and issues in his proposed
reply to the State's response. As a general rule, an
appellant is not allowed to raise new issues for the first
time in a reply brief. See JurisDictionUSA, Inc. v.
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