Barnett v. State
461 S.W.3d 683
Ark.
2015
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Rоdney E. BARNETT, Petitioner v. STATE of Arkansas, Respondent

No. CR-00-1384

Supreme Court of Arkansas.

Opinion Delivered May 7, 2015

2015 Ark. 190

ser, 2010 Ark. 142, 2010 WL 987044 (per curiam). An applicant for the writ carries the burden to demonstrate that the relief he seeks is merited. .

To the extent that Russell seeks to compеl Judge Pope to grant a hearing on the petition or order any other particular remedy, the duty is a discretionary one and not ministerial. To the extent that Russell would have this court compel Judge Pope to simply perform his ministerial duty to provide a timely ruling on the Rule 37.1 petition, Russell has not met his burden to show that relief is merited at this time.

Russell‘s Rule 37.1 petition challenged his convictions for second-degreе battery and felon in possession of a firearm. Russell had also been charged with and acquitted of three counts of kidnapping, one count of aggravated assault, and three counts of rapе. The Arkansas Court of Appeals affirmed the judgment. . The record lodged in that appeal was eight volumes consisting of 787 pages. Because Judge Pope indicates that he is considering the merits of the petition and reviewing an extensive record, Russell has not shown that the judge has failed to discharge his ministerial duty to provide a timely ruling on the Rule 37.1 petition.

It is crucial to our judicial system that trial courts retain the discretion to control their dockets, and the independence of the bench in our judicial system requires that the trial court control its docket and the disposition of matters filed. . Nevertheless, a judge is required to dispose of all judicial matters promptly, and where there has been ‍‌‌​‌‌​​​​​‌‌‌‌‌‌‌​‌​‌‌‌​​‌‌​‌‌‌​​‌‌​​​​​​‌​‌‌​‌​‍no good cause shown to justify a delay in ruling on a Rule 37.1 petition, a writ of mandamus is granted. (per curiam). Where a respondent judge did not provide an explanation for delay in acting on a pleading, this court has granted the writ. (per curiam).

Judge Pope has in this case stated good cause for the delay so far. A matter relating to the incarceration of a prisoner, by its nature, is one that should be given priority, and Russell is entitled to a prompt ruling on his Rule 37.1 petition even though adequate time to review voluminous records may bе essential to fairly evaluate the issues. We accordingly deny the petition for writ of mandamus, yet urge the court to promptly attend to the matter and dispose of the Rule 37.1 petition approрriately.

Petition denied.

Rodney Barnett, pro se petitioner.

Leslie Rutledge, Att‘y Gen., by: Kathryn Henry, Ass‘t Att‘y Gen., for respondent.

PER CURIAM

In 2000, petitioner Rodney E. Barnett was convicted by a jury in the Mississippi County Circuit Court, Chickasawba District, of the capital murder of Lester Frazier and was sеntenced to life imprisonment without parole. We affirmed. .

In 2006, Barnett filed in this court a pro se petition to reinvest jurisdiction in the circuit court to consider a petition for writ of error coram nobis, in whiсh he alleged that the prosecutor withheld material evidence to bolster the testimony of one of its witnesses, Larry Black. Specifically, Barnett contended that the prosecutor withheld jail rеcords that would have supported his claim that he never shared a jail cell with Black and, thus, Black‘s testimony regarding a jail-house confession could not have been credible. The petition was dеnied on the ground that Barnett‘s claim that he did not share a jail cell with Black was made a part of the record through the cross-examination of Black, and, therefore, coram-nobis relief was nоt appropriate where Barnett failed to demonstrate some fundamental error of fact extrinsic to the record. (unpublished per curiam).

Now before us is Barnett‘s second pro se petition to reinvest jurisdiction in the circuit court to consider a petition for writ of error coram nobis.1 A petition for leave to proceed in the circuit court is necessary because the circuit court can еntertain a petition ‍‌‌​‌‌​​​​​‌‌‌‌‌‌‌​‌​‌‌‌​​‌‌​‌‌‌​​‌‌​​​​​​‌​‌‌​‌​‍for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. (citing ); (citing ). This court will grant such permission only when it appears that the proposed attack on the judgment is meritorious. . In making such a determination, we look to the reasonableness of the allegations of the petition and to the existence of the probability of thе truth thereof.

A writ of error coram nobis is an extraordinarily rare remedy more known for its denial than its approval. (citing ). Coram-nobis proceedings are attended by a strong presumption that the judgment of сonviction is valid. (citing ). 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 circuit court and which, through no nеgligence or fault of the defendant, was not brought forward before rendition of the judgment. The petitioner has the burden of demonstrating a fundamental ‍‌‌​‌‌​​​​​‌‌‌‌‌‌‌​‌​‌‌‌​​‌‌​‌‌‌​​‌‌​​​​​​‌​‌‌​‌​‍error of fact extrinsic to the record. .

The writ is allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature. (citing ). We have held that a writ of error coram nobis is available to address 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 сrime during the time between conviction and appeal. .

As grounds for the writ, Barnett asserts in the instant petition that the prosecutor withheld exculpatory evidence and knowingly allowed the State‘s witnessеs to commit perjury. Specifically, Barnett contends that the prosecutor withheld information pertaining to a confidential informant, his identity, and a statement made by him to police regarding the murder for which Barnett was convicted. Barnett asserts that the information possessed by this confidential informant, if it had been known to him at the time of trial, could have been used to impeach the testimony of the Stаte‘s witnesses, Larry Black and Donneitha Bradford.2 Barnett further states that a family friend, Carla Johnson, later discovered the identity of the confidential informant to be Floyd Riley and that Johnson interviewed Riley regаrding his knowledge of the murder. Appended to the petition is Johnson‘s sworn affidavit in which she avers that, during one such interview, Riley explained to her that Bradford admitted to killing the victim with her boyfriend, Frank Melton; that Bradford nеver mentioned Barnett‘s name to Riley in her description of the crime; and that, on the night of the murder, Melton “was spending money with blood on it to buy drugs from Larry Black.”

Suppression of material exculpatory evidence by the State falls within one of the four categories of coram-nobis relief. . When evidence favorable to the defense is wrongfully withheld by the State, it is a violation of and cause to grant a writ of error coram nobis. . In , the Supreme Court revisited Brady and declared that, when the petitioner contends that material evidence was not disclosed ‍‌‌​‌‌​​​​​‌‌‌‌‌‌‌​‌​‌‌‌​​‌‌​‌‌‌​​‌‌​​​​​​‌​‌‌​‌​‍to the defense, the petitioner must show that “there is a reasonable probability that, had the evidence been disclоsed to the defense, the result of the proceeding would have been different.” , 119 S.Ct. 1936 (quoting ). In Strickler, the Court also set out the three elements of a true Brady violation: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, оr because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. , 119 S.Ct. 1936.

In the instant petition, Barnett fails to demonstrate a Brady violation that would warrant issuance of the writ. Barnett contends that the identity of the confidential informant was unknown to him at the time of trial but that the prosecutor and the circuit court were aware of the informant‘s identity because the informant was subpoenaed to testify at Bradford‘s trial. As Riley testified at the trial of Barnett‘s accomplice, it is clear that the defense was aware, or could have been aware, of his identity and testimony at the time of trial. Moreover, Barnett sets forth no facts to show that the defense could not have obtained the identity of the confidential informant or that the prosecutor refused to disclose any requested information regarding the confidential informant, and a review of the record in Barnett‘s direct appeal does not reveal that the identity of the confidential informant was ever requested by the defense through discovery.3 Where a petitioner offers nothing to show that information was concealed from the defense, and the issue could have been determined with certainty at the time of trial, the petitioner has not demonstrated a Brady violation that warrants the issuance of a writ of error coram nobis. .

Because Barnett has not met his burden of establishing a fundamental error of fact extrinsic to thе record sufficient to overcome the strong presumption that the judgment of conviction in his case is valid, he has not established a ground to warrant issuance of the writ.4

Petition denied.

Notes

1
As was the case with the first petition, Barnett‘s second petition is assigned ‍‌‌​‌‌​​​​​‌‌‌‌‌‌‌​‌​‌‌‌​​‌‌​‌‌‌​​‌‌​​​​​​‌​‌‌​‌​‍the same docket number as the direct appeal from the judgment of conviction.
2
Donneitha Bradford testified as an accomplice at Barnett‘s trial. Spеcifically, she testified that, after Barnett solicited her assistance in robbing the victim, she went to the victim‘s residence with Barnett; that the victim was still alive when she left the residence; and that she saw the victim and Bаrnett leave the residence together. Prior to Barnett‘s trial, Bradford was tried, convicted, and sentenced for the capital murder, kidnapping, and aggravated robbery of the same victim, and this court reversed and remanded. . Bradford ultimately entered a plea of guilty to first-degree murder and was sentenced to forty years’ imprisonment. Larry Black testified at Barnett‘s trial that he shared a jail cell with Bаrnett and that Barnett admitted to participating in the murder.
3
The record lodged in Barnett‘s direct appeal is a public record, which need not be incorporated into the record of a second appeal that stems from the same judgment of conviction. (per curiam).
4
Because it is clear from the petition that Barnett failed to state any ground for relief cognizable in a proceeding for coram-nobis relief, we need not consider whether Barnett proceeded with due diligence in making application for relief. .
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