PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO
CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS; MOTION FOR
APPOINTMENT OF COUNSEL; MOTION FOR APPOINTMENT OF COUNSEL OF
RECORD [INDEPENDENCE COUNTY CIRCUIT COURT, NO. 32CR-14-223]
F. WYNNE, Associate Justice
Lee Sullivan Ivory was convicted by an Independence County
Circuit Court jury of possession of a controlled substance,
possession of drug paraphernalia, and failure to appear, for
which he was sentenced as a habitual offender to an aggregate
term of 504 months' imprisonment in the Arkansas
Department of Correction (ADC). His convictions and sentence
were affirmed. Ivory v. State, 2017 Ark.App.
269, 520 S.W.3d 729. Ivory now brings this pro se petition to
reinvest jurisdiction in the trial court to consider a
petition for writ of error coram nobis in which he contends
Brady v. Maryland, 373 U.S. 83 (1963), violations
occurred based on prosecutorial misconduct. Because we find
that Ivory's claims do not establish a ground for the
writ, the petition is denied. Accordingly, the motions are
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
771. We are not required to accept the allegations in a
petition for writ of error coram nobis at face value.
Jackson v. State, 2017 Ark. 195, 520 S.W.3d 242.
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.
Claims for Issuance of the Writ
contends that there was prosecutorial misconduct that
entitles him to coram nobis relief. Specifically, he contends
that the traffic stop and drugs seized support his claim of a
Brady violation due to the State's failure to
produce information that he requested-information regarding
the witnesses' credibility-and that the failure to
disclose the requested information impeded his ability to
conduct an effective cross-examination and threatened his
right to confront adverse witnesses. Ivory's claim fails
because he does not allege sufficient facts in support of his
claim of a Brady violation.
establish a Brady violation, three elements are
required: (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; and (3)
prejudice must have ensued. Martinez-Marmol v.
State, 2018 Ark. 145, 544 S.W.3d 49. 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. Id. Evidence is material
when there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding
would have been different. Id.
allegations are conclusory and without any factual basis,
making his claims insufficient to demonstrate that material
evidence was withheld by the State in violation of
Brady. A naked allegation that a constitutional
right has been invaded will not suffice. See Howard,
2012 Ark. 177, 403 S.W.3d 38. The burden is on the petitioner
to make a full disclosure of the specific facts relied upon
and not to merely state conclusions as to the nature of such
facts. McCullough v. State, 2017 Ark. 292, 528
S.W.3d 833. Although he makes a general reference to the
traffic stop and the controlled substances that were seized,
Ivory has failed either to identify the specific evidence
that he contends was withheld by the prosecution or to
identify the witnesses' testimony that he contends is not
credible and that could have been confronted had he been
provided with the allegedly withheld, exculpatory
evidence. Ivory has not demonstrated that the State
withheld any evidence or otherwise violated Brady.
Because the petition is without merit, there is no cause to
appoint counsel to represent Ivory, and his motions for
appointment of counsel and for appointment of counsel of
record are moot.
denied; motions moot.
C.J., not participating.
Josephine Linker Hart, ...