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                 SUPREME COURT OF ARKANSAS
                                        No.   CR-03-1319

                                                    Opinion Delivered   January 16, 2014
EDDIE LEE PATRICK, JR.                              PRO SE PETITION TO REINVEST
                                PETITIONER          JURISDICTION IN THE CIRCUIT
                                                    COURT TO CONSIDER A PETITION
v.                                                  FOR WRIT OF ERROR CORAM NOBIS
                                                    [JEFFERSON COUNTY CIRCUIT
STATE OF ARKANSAS                                   COURT, 35CR-02-765]
                               RESPONDENT

                                                    PETITION DENIED.


                                         PER CURIAM

       In 2003, petitioner Eddie Lee Patrick, Jr., was found guilty by a jury of rape and

terroristic threatening in the first-degree. An aggregate sentence of 480 months’ imprisonment

was imposed. The Arkansas Court of Appeals affirmed. Patrick v. State, CR-03-1319 (Ark. App.

Feb. 7, 2007) (unpublished).

       Petitioner has now filed a petition in this court requesting that jurisdiction be reinvested

in the trial court so that he may proceed with a petition for writ of error coram nobis. A petition

for leave to proceed in the trial court is necessary because the circuit court can entertain a

petition for writ of error coram nobis after a judgment has been affirmed on appeal only after

we grant permission. Charland v. State, 2013 Ark. 452 (per curiam); Cromeans v. State, 2013 Ark.

273 (per curiam); Burks v. State, 2013 Ark. 188 (per curiam).

       A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial

than its approval. Cromeans, 2013 Ark. 273; Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. The

writ is allowed only under compelling circumstances to achieve justice and to address errors of
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the most fundamental nature. McDaniels v. State, 2012 Ark. 465 (per curiam). We have held that

a writ of error coram nobis is available to address certain errors that are found in one of four

categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the

prosecutor, or a third-party confession to the crime during the time between conviction and

appeal. Charland, 2013 Ark. 452; Cromeans, 2013 Ark. 273; Pitts v. State, 336 Ark. 580, 986 S.W.2d

407 (1999) (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 circuit court and which, through no negligence or fault of the defendant, was not brought

forward before rendition of judgment. McFerrin v. State, 2012 Ark. 305 (per curiam); Cloird v.

State, 2011 Ark. 303 (per curiam).        The petitioner has the burden of demonstrating a

fundamental error of fact extrinsic to the record. Williams v. State, 2011 Ark. 541 (per curiam).

Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction

is valid. Roberts v. State, 2013 Ark. 56, ___ S.W.3d ___; Carter v. State, 2012 Ark. 186 (per

curiam); Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984) (citing Troglin v. State, 257 Ark. 644,

519 S.W.2d 740 (1975)).

       As grounds for the writ, petitioner first contends that he was deprived of a “fair process

of direct appeal” because his appellate attorney filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), asserting that the appeal was wholly without merit. The claim is not a ground

for the writ. The filing of an Anders brief does not fit within the purview of a coram-nobis

proceeding. Cromeans, 2013 Ark. 273.

       Petitioner next argues that the State withheld exculpatory evidence from the defense.



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Suppression of material exculpatory evidence by a prosecutor falls within one of the four

categories of coram-nobis relief. Pitts, 336 Ark. 580, 986 S.W.2d 407. The Supreme Court in

Brady v. Maryland, 373 U.S. 83 (1963) held that “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence is material to guilt

or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87.

In Stickler v. Greene, 527 U.S. 263 (1999), the Court revisited Brady and declared that evidence is

material “if there is a reasonable probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different.” 527 U.S. at 280 (quoting United States

v. Bagley, 473 U.S. 667, 682 (1985)). In Stickler, 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, or because it is impeaching; (2) that the evidence must have been suppressed by the

State, either willfully or inadvertently; and (3) prejudice must have ensued. Stickler, 527 U.S. 263;

Buchanan v. State, 2010 Ark. 285 (per curiam).

       Petitioner’s allegation of a Brady violation primarily pertains to DNA evidence on a swab

from the rape kit used to examine the victim. Petitioner contends that the prosecution did not

let the defense know that there was a DNA profile on the swab that did not match petitioner’s

DNA. The claim must fail because it is clear from the trial record that the defense was aware

at the time of trial of the results of the DNA testing conducted by the Arkansas State Crime

Laboratory. Counsel for petitioner filed a pretrial motion that mentioned that petitioner’s DNA

was not contained in the samples submitted for testing in the rape kit and that the DNA of a

unknown person was present in the samples. A forensic biologist at trial presented the results



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of the DNA testing of the rape kit. In light of the references in the trial record to the exact

information that petitioner alleges was hidden from the defense, petitioner has not established

that the State concealed any evidence related to DNA testing.

       Petitioner further seems to assert that a laboratory report on a “microscopic hair” was

not provided to the defense. The claim is also not borne out by the record, which contains

numerous mentions of the hairs on which microscopic analysis was conducted. If there was

some other report not alluded to in the record, petitioner has not provided any factual

substantiation for the claim that it existed and was somehow hidden from the defense. He,

therefore, has not met his burden of demonstrating a ground for the writ. See Demeyer v. State,

2013 Ark. 456 (per curiam).

       The fact that the trial record is replete with references to the DNA and hair evidence that

petitioner contends was withheld in violation of Brady, and the fact that petitioner

simultaneously concedes that the DNA and hair evidence was available at the time of trial

suggest that petitioner may have misconstrued Brady. It does not appear that the allegations are

in actuality based on the assertion that the State withheld the evidence. Instead, the claims

appear to be based on the contention that the evidence was insufficient to prove that petitioner

had perpetrated a forcible rape. For example, petitioner argues that the finding of his hair on

the victim could not have been absolute proof that a rape had been committed inasmuch as it

could have been deposited on the victim while she was merely fighting with petitioner. He

further argues that there was no proof, presumably in the form of physical injury, that he

engaged in a sex act with the victim by forcible compulsion.



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       If petitioner indeed intended the allegations concerning the DNA and hair testing as

claims that the evidence against him was too weak to support the judgment, the arguments are

essentially a challenge to the sufficiency of the evidence adduced at trial to sustain the judgment.

Issues concerning the sufficiency of the evidence or the credibility of the victim or other

witnesses are not cognizable in coram-nobis proceedings. McDaniels, 2012 Ark. 565. Those

issues are to be settled at trial, and, when appropriate, on the record on direct appeal. Sims v.

State, 2012 Ark. 458 (per curiam).

       Although there is no specific time limit for seeking a writ of error coram nobis, due

diligence is required in making an application for relief. McClure v. State, 2013 Ark. 306 (per

curiam). In the absence of a valid excuse for delay, the petition will be denied. Roberts v. State,

2013 Ark. 56 , ___ S.W.3d ___. Due diligence requires that (1) the defendant be unaware of the

fact at the time of the trial; (2) the defendant could not have, in the exercise of due diligence,

presented the fact at trial; and (3) the defendant, after discovering the fact, did not delay bringing

the petition. Id. The requirements are a sequence of events, each of which a petitioner must

show to prove due diligence. Anderson v. State, 2013 Ark. ___, ___ S.W.3d ___. Here, petitioner

has not established that he exercised due diligence in bringing forth his claims, and his petition

would be subject to denial on that basis alone. Smith v. State, 2012 Ark. 403 (per curiam).

       Petition denied.

       Eddie Lee Patrick, Jr., pro se petitioner.

       Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for respondent.




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