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                   SUPREME COURT OF ARKANSAS.
                                         No.   CR-87-209


                                                  Opinion Delivered November   10, 2016
SANDERS M. CARTER
                                APPELLANT
                                           PRO SE SECOND PETITION TO
V.                                         REINVEST JURISDICTION IN THE
                                           TRIAL COURT TO CONSIDER A
STATE OF ARKANSAS                          PETITION FOR WRIT OF ERROR
                                           CORAM NOBIS
                                  APPELLEE [PULASKI COUNTY CIRCUIT
                                           COURT, NO. 60CR-87-63]


                                                  PETITION DENIED.

                                        PER CURIAM


        In 1987, petitioner Sanders M. Carter was convicted by a jury of rape, aggravated

 robbery, and burglary. He was sentenced as a habitual offender to consecutive terms of

 imprisonment of life for rape and an aggregate sentence of forty years’ imprisonment for the

 other offenses. We affirmed. Carter v. State, 295 Ark. 218, 748 S.W.2d 127 (1988).

        Subsequently, Carter filed in this court a pro se petition for postconviction relief

 pursuant to Arkansas Rule of Criminal Procedure 37.1 (1987). The petition was denied.

 Carter v. State, CR-87-209 (Ark. Oct. 16, 1989) (unpublished per curiam). In 1990,

 appellant filed in the trial court a pro se petition for writ of habeas corpus that was denied.

 On appeal from the order, this court concluded that the allegations raised in the petition

 were cognizable under Rule 37.1 and did not state a ground to issue the writ. The appeal

 was dismissed. Carter v. State, CR-90-187 (Ark. Nov. 5, 1990) (unpublished per curiam).

 Carter then filed in the trial court a petition for scientific testing of evidence pursuant to
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Act 1780 of 2001 Acts of Arkansas, codified at Arkansas Code Annotated sections 16-112-

201 to 207 (Supp. 2003), based on a claim that the chain of custody of certain evidence was

not broken and could be used in his defense. Ark. Code Ann. § 16-112-202(b). After a

hearing at which Carter was represented by counsel, the trial court denied the petition, and

we affirmed. Carter v. State, CR-03-148 (Ark. Feb. 19, 2004) (unpublished per curiam).

Next, in 2005, Carter filed a petition for writ of habeas corpus in the circuit court in the

county in which he was incarcerated. The petition was denied, and we affirmed the order.

Carter v. Norris, 367 Ark. 360, 240 S.W.3d 124 (2006) (per curiam).

       In 2008, Carter filed another pro se petition for writ of habeas corpus in the trial

court pursuant to Act 1780. The trial court held that Carter had already sought scientific

testing of evidence collected at the crime scene and that he had not established that he was

entitled pursuant to Arkansas Code Annotated section 16-112-205(d) to file a subsequent

petition for scientific testing. The petition was denied, and we affirmed the order. Carter

v. State, 2010 Ark. 29 (per curiam).

       In 2011, Carter filed in this court a pro se petition in the case to reinvest jurisdiction

in the trial court to consider a petition for writ of error coram nobis. The petition for leave

to proceed in the trial court was 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. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis

is an extraordinarily rare remedy. State v. Larimore, 341 Ark. 397, 17 S.W.3d 87 (2000).

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

conviction is valid. Id. The function of the writ is to secure relief from a judgment rendered

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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 the judgment. Newman, 2009 Ark. 539, 354 S.W.3d

61. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to

the record. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771.

       The writ is allowed only under compelling circumstances to achieve justice and to

address errors of the most fundamental nature. Id. 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. Howard

v. State, 2012 Ark. 177, 403 S.W.3d 38.

       In the 2011 petition, Carter asserted a violation of the requirements of Brady v.

Maryland, 373 U.S. 83 (1963). A Brady violation is established when material evidence

favorable to the defense is wrongfully withheld by the State. Pitts v. State, 336 Ark. 580,

986 S.W.2d 407 (1999) (per curiam). In Strickler v. Greene, 527 U.S. 263 (1999), 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 disclosed to the defense, the result of the

proceeding would have been different.” Strickler, 527 U.S. at 280 (quoting United States v.

Bagley, 473 U.S. 667, 682 (1985)).

       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, or

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because it is impeaching; (2) the evidence must have been suppressed by the State, either

willfully or inadvertently; and (3) prejudice must have ensued. Strickler, 527 U.S. 263; see

Howard, 2012 Ark. 177, 403 S.W.3d 38. Impeachment evidence that is material, as well as

exculpatory evidence, falls within the Brady rule. Bagley, 473 U.S. 667.

       The Brady violation alleged by Carter in the 2011 petition was that the State withheld

evidence from the defense, but, as we noted in the opinion denying the petition, the

documents and testimony that he pointed to as having been withheld did not exist at the

time of trial. The petition was denied. Carter v. State, 2011 Ark. 481 (per curiam).

       Now before us is Carter’s second petition to reinvest jurisdiction in the trial court in

the case to consider a petition for writ of error coram nobis. Carter asserts in the second

petition that he learned during the 2015 Act 1780 proceeding in the trial court that there

were thirty-four “negroid” hairs recovered from the rape victim’s pink bedsheet. He

contends that at his trial in 1987 only one pubic hair and eight hair fragments had been

forensically tested and that the existence of the thirty-four hairs had been concealed from

the defense. He argues that he would not have been found guilty had the thirty-four hairs

been tested at the time of trial because the hair examiner would have had a larger pool of

evidence to test.

       We do not find that Carter has proven a Brady violation because Carter has not

demonstrated with facts that there is a reasonable probability that the outcome of the trial

would have been different had the hair examiner had a larger pool of hair samples to

examine. At most, Carter has suggested that more hair would have given the examiner

more to compare; he does not contend that more hair would necessarily have ruled him out

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as the perpetrator. Moreover, even if it could be said that not all of the hairs taken into

evidence were forensically examined at the time of trial, Carter has not shown that there is

a reasonable probability based on the evidence adduced at trial that the outcome of the trial

would have been different if the hair examiner who testified at trial had a greater number

of hairs to test.

        There was evidence adduced at Carter’s trial that in November 1986 a man entered

the victim’s home through a kitchen window off a deck. He threatened to kill the victim

with a knife, searched her purse for money, raped her, beat her repeatedly, and threatened

that, if she called the police, he would come back at a later time and cut her throat. The

assault lasted forty to forty-five minutes. In spite of his threat, the victim called the police

and gave a description of the perpetrator. One night in January 1987, the victim heard

someone on the deck and saw a man pass by the window. She called the police, and Carter

was apprehended on the deck and taken into custody. Later that day, and again at trial, the

victim identified Carter as her assailant. See Carter, 295 Ark. at 220, 748 S.W.2d at 127.

        When considering a Brady violation, we look at the significance of the evidence that

was alleged to have been concealed from the defense weighed against the totality of the

evidence to determine if the evidence at issue would have been such as to have prevented

rendition of the judgment had the evidence been available at the time of trial. Smith v.

State, 2015 Ark. 188, 461 S.W.3d 345 (per curiam); Goff v. State, 2012 Ark. 68, 398 S.W.3d

896; Sanders v. State, 2011 Ark. 199 (per curiam). We further consider the cumulative effect

of the allegedly suppressed evidence to determine whether the evidence that was alleged to

have been suppressed was material to the guilt or punishment of the defendant. Goff, 2012

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Ark. 68, 398 S.W.3d 896. Here, the victim’s testimony was sufficient to establish that Carter

committed the offenses. His claim of a Brady violation falls short of establishing that there

was evidence withheld that meets the threshold requirements of a Brady violation that was

both material and prejudicial such as to have prevented rendition of the judgment had it

been known at the time of trial. It is petitioner’s burden to demonstrate that there is a

reasonable probability that the judgment of conviction would not have been rendered, or

would have been prevented, had the information been disclosed at trial. Wilson v. State,

2014 Ark. 273 (per curiam). Petitioner has failed to meet this burden.

       Petition denied.




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