                                  Cite as 2017 Ark. 195


                  SUPREME COURT OF ARKANSAS.
                                      No.   CR-03-800


                                               Opinion Delivered JUNE   1, 2017
ANARIAN CHAD JACKSON
                  PETITIONER
                              PRO SE SIXTH PETITION TO REINVEST
V.                            JURISDICTION IN THE TRIAL COURT
                              TO CONSIDER A PETITION FOR WRIT
 STATE OF ARKANSAS            OF ERROR CORAM NOBIS; MOTION
                   RESPONDENT TO DISMISS RESPONDENT’S UNTIMELY
                              RESPONSE; MOTION FOR REMAND TO
                              TRIAL COURT FOR AN EVIDENTIARY
                              HEARING AND APPOINTMENT OF
                              COUNSEL; MOTION TO SUPPLEMENT
                              PETITION; MOTION TO SUPPLEMENT
                              MOTION TO REMAND TO TRIAL
                              COURT FOR AN EVIDENTIARY
                              HEARING AND APPOINTMENT OF
                              COUNSEL; MOTION TO ADD TO
                              MOTION TO SUPPLEMENT PETITION
                              [PULASKI COUNTY CIRCUIT COURT,
                              NO. 60CR-01-1009 ]

                                               PETITION TO REINVEST JURISDICTION IN
                                               THE TRIAL COURT DENIED; MOTION TO
                                               SUPPLEMENT PETITION, AND MOTION TO
                                               ADD TO THE SUPPLEMENT OF THE
                                               PETITION DENIED; MOTION TO DISMISS
                                               RESPONDENT’S UNTIMELY RESPONSE,
                                               MOTION FOR REMAND TO TRIAL COURT
                                               FOR AN EVIDENTIARY HEARING AND
                                               APPOINTMENT OF COUNSEL, MOTION TO
                                               SUPPLEMENT MOTION TO REMAND TO THE
                                               TRIAL COURT FOR AN EVIDENTIARY
                                               HEARING AND APPOINTMENT OF COUNSEL
                                               MOOT.

                          KAREN R. BAKER, Associate Justice


       In 2002, petitioner, Anarian Chad Jackson, was found guilty by a jury of first-degree

 murder in the shooting death of Charles Raynor and was sentenced to life imprisonment.
                                     Cite as 2017 Ark. 195

We affirmed. Jackson v. State, 359 Ark. 297, 197 S.W.3d 468 (2004). Now before this court

is Jackson’s sixth pro se petition requesting that this court reinvest jurisdiction in the trial

court in the case to consider a petition for writ of error coram nobis. Also before this court

are Jackson’s pro se motions to dismiss the State’s response to his petition, his pro se motion

for remand to the trial court for an evidentiary hearing and appointment of counsel, his pro

se motion to supplement his coram nobis petition, his pro se motion to supplement his

motion to remand to the trial court for an evidentiary hearing and appointment of counsel;

and his pro se motion to add to motion to supplement the petition. For the reasons set

forth below, Jackson’s successive petition for coram nobis relief is denied, and his pro se

motions to supplement his successive petition are denied. Jackson’s remaining motions are

moot.

        The 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. 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. Nelson v. State, 2014

Ark. 91, at 3, 431 S.W.3d 852, 854. 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 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. Id. The petitioner has the burden of demonstrating a fundamental error of fact

extrinsic to the record. Id. The writ is allowed only under compelling circumstances to

                                                2
                                    Cite as 2017 Ark. 195

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. Id.; Howard v. State, 2012 Ark. 177, at 4, 403 S.W.3d 38, 43.

       When a petitioner files successive applications for coram nobis relief in this court, it

is an abuse of the writ to argue the same claims that have been addressed if the petitioner

does not allege new facts that are sufficient to distinguish his latest claims from the prior

claims. See United States v. Camacho-Bordes, 94 F.3d 1168 (8th Cir.1996) (holding that 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). Jackson has repeatedly alleged in his

successive petitions that investigators and the prosecutor procured false testimony through

threats and promises and suppressed exculpatory evidence in violation of Brady v. Maryland,

373 U.S. 83 (1963).

       While allegations of a Brady violation fall within one of the four categories of

fundamental error that this court has recognized in coram nobis proceedings, the fact that a

petitioner alleges a Brady violation alone is not sufficient to provide a basis for error coram

nobis relief. See Cloird v. State, 357 Ark. 446, 452, 182 S.W.3d 477, 480 (2004) (setting

forth the factors that must be demonstrated to state a sufficient Brady claim). To merit relief

on a claim of a Brady violation, a petitioner must 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. Id.

                                                3
                                     Cite as 2017 Ark. 195

       In his first petition, Jackson contended that the prosecutor had elicited false testimony

from trial witnesses Takesha Griffin, who is Jackson’s first cousin, and Chris Bush, who was

convicted as an accomplice in the murder of Raynor. Jackson v. State, 2009 Ark. 176, at 1–

2 (per curiam). We denied relief, finding no factual support for Jackson’s conclusory

allegations. Id. at 3–5. In his fifth1 petition for coram nobis relief, Jackson focused on the

testimony of Griffin and alleged that Griffin had provided investigators with pretrial

statements exonerating Jackson and disclosing that Jackson was in Texas at the time of the

murder. Jackson v. State, 2014 Ark. 347, at 4, 439 S.W.3d 675, 677–78 (per curiam). We

found that allegations involving Griffin’s testimony were not extrinsic to the record, in that

the trial record indicated that the defense was aware of the alibi defense and was also aware

that Griffin had provided multiple contradictory pretrial statements. Id. at 4–6, 439 S.W.3d

at 678–79.

       In his sixth petition, Jackson again contends that Bush and Griffin2 were coerced by

investigators and prosecutors through scare tactics and promises of leniency to provide false

testimony and suppressed exculpatory evidence in violation of Brady. As with his previous

petitions, Jackson adds new factual details in support of his reconstituted Brady claims.




       1
          Jackson’s second coram nobis petition was dismissed because we found that his
allegations constituted an abuse of the writ. Jackson v. State, 2010 Ark. 81, at 2–3 (per curiam).
Jackson filed a third and a fourth “motion to reinvest jurisdiction in trial court to consider
a writ of error coram nobis.” Those two motions were dismissed by this court by per curiam
order in a syllabus entry on March 8, 2011.
       2
        Takesha Griffin is now known as Takesha Shepard but will be referred to by her
former name of Griffin to avoid confusion.
                                                 4
                                    Cite as 2017 Ark. 195

         Jackson now contends that the prosecutor secretly dismissed a firearm charge arising

from Bush’s possession of a .40-caliber weapon, provided a favorable resolution of a drug

offense committed by Bush in 1999, and misrepresented the facts surrounding Bush’s

favorable treatment to the trial court. In support of these new allegations, Jackson provides

excerpts from his trial transcript, a docket sheet from Pulaski County pertaining to Bush’s

1999 conviction, and an affidavit from Bush recanting his testimony and identifying “Little

Mark,” who is also known as Marcus Hunter, as the true perpetrator of the crime.

         With respect to Griffin’s testimony, Jackson again contends that her pretrial sworn

statements implicating Jackson were the product of police misconduct that occurred during

the time Griffin had spent with investigators over a period of several days. Jackson attaches

another affidavit from Griffin, adding that she had engaged in oral sex with one of the

investigating officers and that investigators had provided her with money to purchase crack

cocaine in exchange for providing sworn testimony to implicate Jackson. Jackson maintains

that the new facts set forth in Griffin’s current affidavit represent newly discovered

information that was known to prosecutors and withheld from the defense in violation of

Brady.

         Jackson further alleges that the prosecutor had been put on notice that Detective

Knowles, who Griffin alleges had pressured her to provide false testimony, had been

previously accused of misconduct and attempting to bribe witnesses. In support of this

allegation, Jackson cites Collier v. State, CACR-00-3483 (Ark. Sept. 20, 2001) (unpublished



         3
         For clerical purposes the coram nobis petition was assigned the same docket number
as the direct appeal of the judgment.
                                               5
                                    Cite as 2017 Ark. 195

per curiam), wherein this court denied a petition for a writ of error coram nobis which was

based in part on an allegation that “the Little Rock Police Department” 4 had paid a witness

$300.00 for his testimony and had additionally promised the witness a $10,000 reward in

exchange for false testimony. Collier, Slip op. at 2. According to Jackson, the prosecutor

had a duty to disclose this evidence of Knowles’s prior misconduct.

       The affidavits and attached trial transcript and docket sheet fail to substantiate

Jackson’s allegations, and in fact, demonstrate that the prosecutor made no

misrepresentations to the trial court5 and did not dismiss a firearm charge. As to Bush’s

affidavit, we have explained that recanted testimony, standing alone, is not cognizable in an

error coram nobis proceeding. See Smith v. State, 200 Ark. 767, 140 S.W.2d 675 (1940)

(holding that the writ was not available to afford relief on the ground that the principal

witness against the accused had recanted and that others since the accused's conviction had

confessed to the crime); see also Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990) (A

witness’s recantation of part of his trial testimony was not a ground for the writ as recantation

of testimony did not fit within the remedy.).




       4
        There is no reference to Detective Knowles or the names of other specific officers
in our decision. Collier, CACR-00-348, Slip op. at 2.

       5 Jackson contended that the prosecutor misrepresented to the trial court that Bush’s
previous 1999 drug charge was a class C felony, rather than, as Jackson maintains, a class Y
felony. The docket sheet demonstrates that Bush was charged with a class C felony in 1999,
as the prosecutor had asserted.
                                                6
                                     Cite as 2017 Ark. 195

        We are not required to accept the allegations in a petition for writ of error coram

nobis at face value. Instead, we look to the reasonableness of the allegations of the petition

and to the existence of the probability of the truth thereof. Howard, 2012 Ark. 177, at 5,

403 S.W.3d at 43. Griffin’s affidavit is simply another example of Griffin’s history of

providing multiple accounts of the facts surrounding the pretrial sworn statements she

provided to investigators and prosecutors.           Finally, Jackson’s contention surrounding

evidence of prior misconduct on the part of Detective Knowles is without merit in that the

case relied upon by Jackson did not establish the existence of credible evidence that Knowles

or any officer with the Little Rock Police department had engaged in witness tampering.

See Collier, slip op., at 2.

         In sum, the addition of new factual allegations surrounding the testimony of Bush

and Griffin are not sufficient to distinguish the claims from his earlier claims in that Jackson’s

new allegations are conclusory, involve matters that were known or could have been

discovered at the time of trial, and otherwise fail to establish that material evidence had been

withheld by the prosecution in violation of Brady. Affidavits from Bush and Griffin fail to

create a reasonable probability that the new allegations contained therein are meritorious

such that issuance of the writ is warranted. Howard, 2012 Ark. 177, at 5, 403 S.W.3d at 43.

Jackson’s reconfigured claims with respect to the testimony of Bush and Griffin represent

an abuse of the writ.

        In this latest petition, Jackson raises one new claim as grounds for coram nobis relief

that is based on allegations of prosecutorial misconduct and the suppression of exculpatory

evidence provided to investigators by Bush’s girlfriend, Renita Pennington. In support of

                                                 7
                                   Cite as 2017 Ark. 195

this claim, Jackson attaches an affidavit from Pennington wherein she states that Bush told

her that he and Marcus Hunter were involved in a shooting of a man that she could not

identify, and that Bush further told her that he did not know if Marcus had killed the man,

but that the word was that Jackson was the killer. Pennington further avers that the

prosecutor advised Pennington to leave town rather than appear and testify truthfully.

       Pennington’s assertion that Marcus Hunter was involved in the crime is not a fact

that was extrinsic to the record. Bush testified at trial that on the day of the murder, he and

Jackson were being driven around by “Little Mark,” whom Bush identified in his affidavit

as Marcus Hunter. According to Bush’s trial testimony, when Jackson spotted Raynor in

his front yard, Jackson told Little Mark to park in a nearby alley where Jackson and Bush

exited the car, shot and killed Raynor, and ran back to the car being driven by Little Mark.

Jackson, 359 Ark. at 299, 197 S.W.3d at 470. Thus, evidence that Marcus Hunter or Little

Mark was involved in the shooting was presented at trial, and Pennington’s affidavit,

executed over fifteen years after trial, does not unequivocally contradict Bush’s testimony

that Little Mark took part in the crime.

       Furthermore, Pennington’s assertion that she failed to testify at the behest of the

prosecutor is contradicted by a motion signed and filed by the prosecutor, which Jackson

has also attached to his petition. The prosecutor’s motion to show cause asked the trial

court to hold Pennington in contempt for failing to appear pursuant to a witness subpoena.

Jackson is asking this court to accept Pennington’s allegations as credible and assume that

the prosecutor filed a witness subpoena and a motion to show cause as a ruse.




                                               8
                                     Cite as 2017 Ark. 195

       As stated above, we do not accept allegations of a coram nobis petitioner at face value

but examine the reasonableness of those allegations. Howard, 2012 Ark. 177, at 5, 403

S.W.3d at 43 Thus, we will not credit allegations that are set forth in an affidavit executed

years after the trial to discredit sworn trial testimony or formal pleadings and subpoenas filed

by a prosecutor. It is Jackson’s burden to show that a writ of error coram nobis is warranted.

This burden is a heavy one, for a writ of error coram nobis is an extraordinarily rare remedy.

Id. at 4, 403 S.W.3d at 42. Jackson’s conclusory allegations supported by long-delayed

dubious affidavits are insufficient to meet Jackson’s burden of demonstrating meritorious

grounds for the writ. Id.

       Jackson has filed a pro se motion to supplement his petition and a pro se motion to

add to the supplement of the petition wherein he expands on his arguments and makes

additional fact allegations. Jackson’s pro-se motion to supplement his petition merely

augments his arguments that the prosecutor committed a Brady violation.               However,

Jackson’s supplemental arguments fail to provide convincing authority that his Brady claims

entitle him to coram nobis relief.

       In his pro se motion to add to the motion to supplement the petition, Jackson

additionally contends that the evidence adduced at trial supports the affidavit of Bush

recanting his trial testimony. Specifically, Jackson asserts that the testimony of Augusta

Mitchell who had witnessed the murder testified that the two assailants were shorter than

she was and that Mitchell testified that she was five feet nine inches tall. Jackson also asserts

that testimony from the medical examiner established that the victim was five feet, eleven

inches tall, and the fatal gunshot to the victim’s head was fired by an assailant who was

                                                9
                                    Cite as 2017 Ark. 195

shorter than the victim. Jackson contends that because he is over six feet tall, this testimony

establishes that he was not the perpetrator of the crime. Jackson further insists that other

evidence adduced at his trial bolstered Bush’s recent affidavit including the following: that

a .40 caliber weapon identified in Bush’s trial testimony as the weapon fired by Jackson was

proved not to have fired the fatal shot; that a .357 gun found in the possession of Roderick

Pennington and Darrick Morgan was the actual murder weapon; that the prosecutor

objected to the admission of testimony from Detective Marquez that a .357 caliber weapon

was found in the possession of Roderick Pennington and Darrick Morgan shortly after the

crime had been committed; and that the prosecutor dismissed felony charges against Griffin,

and Markevius King6 at the time they gave testimony to a grand jury incriminating Jackson

in the crime.

       A review of the trial record demonstrates that the evidence cited by Jackson in his

pro se motion to add to his motion to supplement his coram nobis petition was presented

at trial and considered by the jury.7 Jackson’s attempt to indirectly challenge the sufficiency

of the evidence by contending the evidence presented at trial bolstered the affidavit of Bush




       6
        At Jackson’s trial, King testified that he could not remember the testimony he had
provided to the grand jury.
       7
         The height of the victim was raised at trial and the medical examiner testified that
it was possible that the assailant was shorter than the victim, but that the trajectory of the
fatal shot could also be attributed to other factors. In any event, evidence was presented
that Jackson’s gun, a .40 caliber semi-automatic weapon, had not fired the fatal shot, but
that the fatal gunshot to the victim’s head came from a revolver which had been fired by a
caliber of weapon that may have included a .357 magnum revolver. Moreover, despite the
objection of the prosecutor, the defense presented evidence that a .357 caliber weapon had
been found in the possession of Roderick Pennington and Darrick Morgan.
                                               10
                                   Cite as 2017 Ark. 195

fails to state a claim for coram nobis relief. Allegations that could be considered claims that

the evidence was insufficient to sustain the judgment, or that challenge the credibility of

witnesses are issues to be addressed at trial, and, when appropriate, on the record on direct

appeal. Howard, 2012 Ark. 177, at 21, 403 S.W.3d at 51. As stated above, the evidence

cited by Jackson was known at the time of his trial and presented to the jury who concluded

that Jackson was guilty. Id. at 20, 403 S.W.3d at 50.

       Again, 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 the judgment. Nelson, 2014 Ark. 91, at 3, 431 S.W.3d at 854.

Jackson has the burden of demonstrating a fundamental error of fact extrinsic to the record.

Id. Jackson’s additional fact allegations contained in his pro se motion to add to the motion

to supplement the petition fails to meet this burden.

       Petition to reinvest jurisdiction in the trial court denied; motion to supplement the

petition and motion to add to motion to supplement the petition denied; motions to dismiss

respondent’s untimely response, for remand to the trial court for an evidentiary hearing, to

supplement motion to remand to the trial court for an evidentiary hearing, and motion for

appointment of counsel moot.




                                               11
