James E. SMITH, Petitioner v. STATE of Arkansas, Respondent
No. CR-02-228
Supreme Court of Arkansas.
Opinion Delivered April 30, 2015
2015 Ark. 188
In 2001, petitioner James E. Smith was found guilty by a jury of two counts of rape for engaging in sexual intercourse with his girlfriend‘s daughters when they were both under the age of fourteen. Petitioner testified at trial that he had sex with the victims, but he contended that they were eighteen and twenty years old when the acts occurred and that both had consented. Petitioner was sentenced to two consecutive terms of twenty years’ imprisonment. The Arkansas Court of Appeals affirmed. Smith v. State, CR-02-228 (Ark.App. Jan. 8, 2003) (unpublished) (original docket no. CACR 02-228).
After the judgment was affirmed, petitioner sought postconviction relief in the trial court in a pro se petition pursuant to
In 2012, petitioner filed in this court a pro se petition, approximately 200 pages in length, to reinvest jurisdiction in the trial court to consider a petition for writ of
In 2014, petitioner filed a second petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis, which was also approximately 200 pages in length. In the petition, petitioner repeated most of the claims for relief alleged in the first petition, albeit in somewhat different language, pertaining to inconsistent statements made by the victims. We dismissed the petition on the ground that it was a successive petition that repeated the allegations contained in the first such petition and lacked merit. Smith v. State, 2014 Ark. 246, 456 S.W.3d 731 (per curiam).
On March 12, 2015, petitioner filed his third coram-nobis petition that is now before us, which is also approximately 200 pages in length. Again, petitioner repeats the assertions contained in the first and second petitions, contends that the prosecution fabricated evidence, argues that the evidence against him was insufficient to sustain the judgment, and alleges that there were errors made by the trial court in the admission of evidence.
We first note that a 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. Henderson v. State, 2014 Ark. 180, 2014 WL 1515878 (per curiam); Cloird v. State, 2011 Ark. 303, 2011 WL 3135958 (per curiam).
A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Pitts v. State, 2014 Ark. 132, 2014 WL 1096185 (per curiam); Martin v. State, 2012 Ark. 44, 2012 WL 310981 (per curiam). 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 judgment. Camp v. State, 2012 Ark. 226, 2012 WL 1877371 (per curiam). To warrant a writ of error coram nobis, a petitioner has the burden of bringing forth some fact, extrinsic to the record, that was not known at the time of trial. Cloird, 2011 Ark. 303, 2011 WL 3135958. Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Cherry v. State, 2014 Ark. 81, 2014 WL 689026 (per curiam).
In the instant petition, petitioner raises some claims of trial error and argues that the evidence was insufficient to sustain the judgment, but the majority of the allegations rest on petitioner‘s claim that the victims were not truthful in their testimony at trial and in their statements to the police and that the inconsistencies in the victims’ statements proves that he was innocent. He also contends, as he did in the original petition, that the prosecution withheld the statements of the victims from the defense in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), thereby denying the defense the opportunity to compare the statements to the police report concerning the offenses. The same handwritten statements by the victims that were appended to the first and second coram-nobis petition are appended to this latest petition.
The evidence contemplated in Brady is “evidence material either to guilt or punishment.” 373 U.S. at 87, 83 S.Ct. 1194. The Court later defined the test for material evidence in the context of a Brady violation as being “whether there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would be different.” Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999); see also Lacy v. State, 2010 Ark. 388, 377 S.W.3d 227. 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); see Lee v. State, 340 Ark. 504, 11 S.W.3d 553 (2000). This court has recognized that the withholding by the prosecution of material evidence is a ground for reinvesting jurisdiction in the trial court to consider a writ of error coram nobis. See Buckley v. State, 2010 Ark. 154, at 1, 2010 WL 1255763 (per curiam).
We have already rejected petitioner‘s arguments concerning the victims’ allegedly inconsistent statements. We further note, as we did when the prior petition based on the same claims was dismissed, that the evidence adduced at trial against petitioner was overwhelming. Both victims testified that petitioner had sexual intercourse with them frequently when they were in elementary school, below the ages of twelve. Petitioner conceded in cross-examination at trial that he had engaged in sexual relations with the victims but only after each one seduced him within a two-week period when they
As he did in the first and second petitions, petitioner argues throughout his petition that the inconsistent statements of the victims rendered the evidence insufficient to sustain the judgment. The issue is not cognizable in a coram-nobis proceeding. Philyaw, 2014 Ark. 130, 2014 WL 1096201. The sufficiency of the evidence and the credibility of witnesses are matters to be addressed at trial. Id.
The petition before us also contains a number of assertions that amount to allegations of mere trial error. Such allegations by their very nature constitute issues known at the time of trial that were addressed, or could have been addressed, at that time. Such claims are not grounds for the writ. Anderson v. State, 2012 Ark. 270, 423 S.W.3d 20 (per curiam). This applies even to issues of trial error of constitutional dimension that could have been raised in the trial court. Travis v. State, 2014 Ark. 87, 2014 WL 689035 (per curiam).
After examining the claims raised in this third petition, we conclude that petitioner‘s successive application for coram-nobis relief in this court is an abuse of the writ in that he alleges no fact sufficient to distinguish his claims in the instant petition from the claims in the first or second. He did not establish in the first or second petitions that there was any basis for the writ, and his reassertion of largely the same claims in the third petition is a misuse of the remedy. Accordingly, the petition is dismissed. Rodgers v. State, 2013 Ark. 294, 2013 WL 3322344 (per curiam) (“[A] court has the discretion to determine whether the renewal of a petitioner‘s application for the writ, when there are additional facts presented in support of the same grounds, will be permitted.“); Jackson v. State, 2010 Ark. 81, 2010 WL 1006491 (per curiam) (citing Jackson v. State, 2009 Ark. 572, 2009 WL 3788895 (per curiam)); see also United States v. Camacho-Bordes, 94 F.3d 1168 (8th Cir. 1996) (res judicata did not apply to bar a second petition for writ of error coram nobis, but abuse-of-writ doctrine was applied to subsume res judicata).
Petition dismissed.
The failure to make an argument that is meritless is not ineffective assistance of counsel. Mitchell v. State, 2012 Ark. 242, 2012 WL 1950257. The petitioner who claims that appellate counsel was ineffective bears the burden of making a clear showing that counsel failed to raise some meritorious issue on appeal. State v. Rainer, 2014 Ark. 306, 440 S.W.3d 315. Magness failed to support his claim that appellate counsel had failed to raise a meritorious argument. The argument that Magness contends counsel should have raised was without merit. The trial court did not clearly err in denying postconviction relief on this claim.
Finally, Magness argues on appeal that the trial court erred in ruling that his last ground for relief in the petition was not cognizable in a Rule 37.1 proceeding. He contends that, because the order cited a case that was handed down after he filed his petition, the rule of law should not be applicable to him. The rule of law that Magness contends was not applicable, however, was not new.
Magness alleged the search of his residence was unconstitutional because the officers conducted a warrantless search, that the warrant was defective, and that the evidence from the search should not have been admitted. It is well settled that the Rule does not provide a method for review of mere trial error. Taylor v. State, 297 Ark. 627, 764 S.W.2d 447 (1989). Those issues not so fundamental as to render the judgment void and open to collateral attack are waived if not raised at trial or on appeal. Hulsey v. State, 268 Ark. 312, 595 S.W.2d 934 (1980). More specifically,
Magness failed to demonstrate that the trial court was clearly erroneous in summarily denying postconviction relief. Accordingly, the trial court‘s order dismissing and denying postconviction relief is affirmed.
Affirmed; motion denied.