Lee Charles MILLSAP, Jr., Appellant v. STATE of Arkansas, Appellee
No. CR-16-662
Supreme Court of Arkansas
Opinion Delivered November 10, 2016
2016 Ark. 391
With respect to Carter’s allegations concerning the validity of the arrest warrant, any defects in the arrest warrant could have been discovered and raised in the trial court. See Smith v. State, 2016 Ark. 201, at 3, 491 S.W.3d 463 (per curiam). Carter’s claims regarding the warrant in his case do not establish the existence of some fact extrinsic to the record that was concealed from the defense. See id. The petitioner seeking to reinvest jurisdiction in the trial court to proceed with a coram-nobis petition bears the burden of presenting facts to support the claims for the writ because an application for the writ must make a full disclosure of specific facts relied on and not merely state conclusions as to the nature of such facts. Howard, 2012 Ark. 177, 403 S.W.3d 38; see also Cloird v. State, 357 Ark. 446, 182 S.W.3d 477 (2004).
Petition and request denied.
Lee Charles MILLSAP, Jr., Appellant v. STATE of Arkansas, Appellee
No. CR-16-662
Supreme Court of Arkansas
Opinion Delivered November 10, 2016
2016 Ark. 391
In May 1998, appellant Lee Charles Millsap, Jr., also known as Solomon Millsap, pleaded guilty to capital murder, terroristic threatening, and second-degree battery in the stabbing death of his fiancée. He was sentenced to life imprisonment without the possibility of parole and two six-year terms to run concurrently with the life sentence. Millsap thereafter sought relief pursuant Arkansas Rule of Criminal Procedure 37.1 (1998), claiming
In 2010, Millsap filed his first petition for coram-nobis relief in the trial court and alleged that he had been denied effective assistance of counsel when he pleaded guilty and that his postconviction counsel had been ineffective in that he failed to arrange a psychiatric evaluation before the evidentiary hearing on the Rule 37.1 petition took place. The trial court treated Millsap’s allegations as claims that Millsap was insane at the time of trial and that his guilty plea had been coerced and denied relief. We dismissed the appeal because it was clear from the record that Millsap could not prevail. Millsap v. State, 2014 Ark. 493, 449 S.W.3d 701 (per curiam).
On September 4, 2015, Millsap filed in the trial court a second pro se petition for coram-nobis relief and raised the following three claims: that he was insane at the time of trial; that the prosecutor withheld evidence of Millsap’s insanity in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and that his guilty plea was coerced. The trial court found that Millsap had failed to establish a basis for coram-nobis relief. Millsap brings this appeal from the order.
Now pending before this court is Millsap’s motion for use of the record on appeal and for an extension of time to file an abstract, brief, and addendum. When it is clear from the record that the appellant cannot prevail on appeal of an order that denied postconviction relief, we dismiss the appeal. Wheeler v. State, 2015 Ark. 233, 463 S.W.3d 678 (per curiam). As it can be determined from the record that Millsap could not prevail, the appeal is dismissed, which renders the motion moot.
The function of the writ for error coram nobis is to secure relief from a judgment rendered while there existed some fact that would have prevented the rendition of the judgment had it been known to the trial court and which, through no fault of the defendant, was not brought forward before rendition of the judgment. Newman v. State, 2009 Ark. 539, at 5, 354 S.W.3d 61, 65. A writ of error coram nobis is an extraordinarily rare remedy more known for its denial than its approval. Howard v. State, 2012 Ark. 177, at 4, 403 S.W.3d 38, 42-43. Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Id. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Id. We have held that 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. When claiming insanity as a ground for the writ, the burden is on the petitioner who claims mental illness to overcome the strong presumption that the judgment was valid. Noble v. State, 2015 Ark. 215, at 3, 462 S.W.3d 341, 344 (per curiam). Claims that a petitioner either could have known, or did know, at the time of trial do not provide grounds for issuance of a writ of error coram nobis. Rodgers v. State, 2013 Ark. 294, at 3, 2013 WL 3322344 (per curiam).
Millsap supported his claim that he was insane at the time of trial by challenging
Furthermore, as stated above, allegations set forth in Millsap’s first coram-nobis petition had been construed by the trial court as an insanity claim. This court dismissed the appeal challenging the denial of his first petition and concluded that Millsap had failed to present facts sufficient to demonstrate that there was information not known at the time of trial or which could not have been known at the time of trial that Millsap was incompetent to proceed. Millsap v. State, 2014 Ark. 493, at 4, 449 S.W.3d at 704. In that case, this court relied on information and issues gleaned from Millsap’s Rule 37.1 appeal and found that an insanity defense had been considered by counsel at length, and, therefore, Millsap had failed to establish in his coram-nobis petition that there was any information concerning his competence of which the defense was either unaware at the time of trial or could not have uncovered at the time of trial. Id.
In this second coram-nobis petition, Millsap specifically raised an insanity claim and supported his claim by contending that the competency evaluation that had been ordered by the court prior to his scheduled trial contained invalid conclusions unsupported by objective analysis. Clearly, the conclusions contained within that evaluation, including the result of the IQ tests, were known to Millsap, his counsel, and to the sentencing court at the time that Millsap entered his guilty plea. When a petitioner’s competence has been considered by the sentencing court, there is no showing that there existed some fact extrinsic to the record, unknown to the court or to the petitioner, that would have prevented the rendition of the judgment. Westerman v. State, 2015 Ark. 69, at 4-6, 456 S.W.3d 374, 377 (citing Ridgeway v. State, 239 Ark. 377, 389 S.W.2d 617, cert. denied, 382 U.S. 902, 86 S.Ct. 236, 15 L.Ed.2d 156 (1965) (holding that a psychological examination of the petitioner, which had been reported to the circuit court, showed that the petitioner’s sanity was an issue presented to the circuit court and could not later be considered on a petition for writ of error coram nobis)). Millsap has alleged no additional facts in this second coram-nobis petition demonstrating that there existed facts extrinsic to the record and unknown to the sentencing court that he was insane at the time he entered a guilty plea. Westerman, 2015 Ark. 69, at 4-6, 456 S.W.3d at 377; see also Williams v. State, 2016 Ark. 92, at 3-4, 485 S.W.3d 254, 256 (per curiam).
While allegations of a Brady violation fall within one of the four categories of fundamental error that this court has recognized, the fact that a petitioner alleges a Brady violation alone is not sufficient to provide a basis for error-coram-nobis relief. Smith v. State, 2015 Ark. 188, at 4-5, 461 S.W.3d 345, 349 (per curiam). To 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; (3) prejudice must have ensued. State v. Larimore, 341 Ark. 397, 404, 17 S.W.3d 87, 91 (2000). When determining whether a Brady violation has occurred, it must first be established that the material was available to the State prior to trial and the defense did not have it. Cloird v. State, 357 Ark. 446, 452, 182 S.W.3d 477, 480 (2004). The fundamental prerequisite to any Brady claim is establishing that facts were available to the prosecutor which were unknown to the defense at the time of trial. Id.
Clearly, the occurrence of previous events in Millsap’s life were known to him at the time of trial, and Millsap had the opportunity to disclose those facts to Dr. Doi and to the trial court before the rendition of the judgment. Millsap’s allegations regarding the basis for the prosecutor’s request to have an unrelated rape charge nolle prossed is equally unavailing. We are not required to accept the allegations in a petition for writ of error coram nobis at face value. Goff v. State, 2012 Ark. 68, at 3, 398 S.W.3d 896, 898 (per curiam). Furthermore, when considering a petition for coram-nobis relief, this court looks to the reasonableness of the allegations of the petition and to the existence of the probability of the truth thereof. Isom v. State, 2015 Ark. 225, at 1-2, 462 S.W.3d 662, 663. Millsap offers a docket sheet establishing that the rape charge had been nolle prossed on June 15, 1998, but otherwise provides no evidence supporting his improbable allegation that the charge had been nolle prossed on the basis of incompetency.
In his third claim, Millsap contended that his guilty plea was coerced because his defense counsel “never formed a theory of defense because his sole objective was to plead the Petitioner out. ... [and] to compel the Petitioner to do his will—that constitutes coercion.” Millsap further alleged that the prosecutor coerced the guilty plea by threatening to seek the
For the reasons set forth above, Millsap failed to state grounds for the issuance of a writ of error coram nobis. Accordingly, the trial court did not err in denying the relief sought.
Appeal dismissed; motion moot.