Khabir v. State
439 S.W.3d 679
Ark.
2014
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Malik A. KHABIR, a/k/a Leroy McCoy, Petitioner v. STATE of Arkansas, Respondent.

No. CR-96-511.

Supreme Court of Arkansas.

Sept. 11, 2014.

2014 Ark. 369

This court is not required to accept the allegations in a petition for writ of error coram nobis at face value. . It is the petitioner‘s burden to show that the writ is warranted, and this court will grant permission for a petitioner to proceed with a petition for writ of error coram nobis only when it appears that the proposed attack on the judgment is meritorious. Here, petitioner has not demonstrated that, if allowed to proceed, he could demonstrate that the statements were suppressed or that the statements would have prevented rendition of the judgement. Thus, to the extent that he has alleged any new facts in the petition, he has failed to demonstrate a meritorious claim to present in the proposed petition for writ of error coram nobis.

Petitioner also requests that this court recall the mandate in the case, pointing to ineffective assistance of counsel and asserting that this court overlooked error in reviewing the case on direct appeal. This court has consistently held that it will only consider a petition to recall the mandate in those cases where the death penalty has been imposed. ; see also . Petitioner also does not allege that he has otherwise established extraordinary circumstances to satisfy the requirements to recall the mandate as outlined by this court in . Because petitioner has not established a basis for this court to recall the mandate, we decline to do so.

Motion to expand page limit moot; motion to reinvest jurisdiction and to recall mandate denied.

Malik A. Khabir, pro se petitioner.

No response.

PER CURIAM.

In 1995, petitioner Malik A. Khabir, who is also known as Leroy McCoy, was found guilty of delivery of a controlled substance and sentenced to 480 months’ imprisonment and a $5000 fine. Because the offense was committed within 1000 feet of a park, the sentence was enhanced pursuant to Arkansas Code Annotated section 5-64-411(a) (Supp.1995). We affirmed. .

On July 15, 2014, petitioner filed the instant motion, seeking at public expense a copy of the appellant‘s brief-in-chief filed in the direct appeal of the judgment. Petitioner appended his affidavit of indigency to the motion.

As grounds for the request for the copy, petitioner states that he is seeking to get his case back before the courts with the assistance of a legal organization and that he is unable to pay the photocopying fee for a copy of the brief. Petitioner has not stated good cause to grant the motion.

Indigency alone does not entitle a petitioner to free copying of material on file with either of our appellate courts. See ; see also ; ; ; ; . A petitioner seeking a copy of written material filed in the course of the direct appeal of a judgment of conviction1 must show a compelling need for the copy to support a specific allegation contained in a timely petition for postconviction relief. See ; see also ; ; ; ; ; ; .

Petitioner has not established that there is a postconviction remedy available to him at this time in either state or federal court. See . Moreover, even if there is a remedy available, he has not demonstrated that there is any particular issue that he cannot adequately raise to the court without access to the brief he seeks to obtain. Accordingly, he has failed to show that he has a compelling need for the brief to warrant providing it to him at public expense. ; see also ; see also ; ; .

Motion denied.

Notes

1
Post-appeal motions that seek a copy at public expense of material on file with either this court or the Arkansas Court of Appeals are considered to be requests for postconviction relief. ; (citing ).
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