                                     Cite as 2018 Ark. 20
                  SUPRME COURT OF ARKANSAS
                                         No.   CR-04-40



                                                 Opinion Delivered January   25, 2018
 ADRIAN LOUIS CARNER
                  PETITIONER
                            PRO SE PETITION TO REINVEST
 V.                         JURISDICTION IN THE TRIAL
                            COURT TO CONSIDER A PETITION
 STATE OF ARKANSAS          FOR A WRIT OF ERROR CORAM
                 RESPONDENT NOBIS
                            [PULASKI COUNTY CIRCUIT
                            COURT, SIXTH DIVISION, NO.
                            60CR-02-261]


                                                 PETITION DENIED.


                              JOHN DAN KEMP, Chief Justice

       Petitioner Adrian Louis Carner, who was convicted in 2003 of first-degree murder,

brings this pro se petition to reinvest jurisdiction in the trial court to consider a petition for

writ of error coram nobis. He contends that (1) he was convicted on “nothing solid” and

the State failed to prove the elements of the offense; (2) there were errors in his trial; (3) the

Arkansas Court of Appeals affirmed the judgment without conducting a proper review on

appeal and made errors in its consideration of the appeal; (4) the Supreme Court of Arkansas

did not “look deeply” into the evidence adduced at trial; (5) the State, in violation of Brady

v. Maryland, 373 U.S. 83 (1963), referenced “the petitioner’s prior when such was not

supposed to had been.” Because Carner has not demonstrated in the petition that the writ

should issue, the petition is denied.
       The petition is properly filed in this court. Carner’s conviction for first-degree

murder was affirmed on appeal. Carner v. State, CR-04-40 (Ark. App. Dec. 1, 2004)

(original docket no. CACR 04-40). The trial court cannot entertain a petition for writ of

error coram nobis after a judgment has been affirmed on appeal unless this court grants

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. Green v. State, 2016 Ark. 386, 502 S.W.3d 524; Westerman v. State, 2015

Ark. 69, 456 S.W.3d 374; Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771. 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. 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, 2013 Ark. 56,

425 S.W.3d 771.

       The writ is allowed 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. A court is not required to accept the allegations in




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a petition for writ of error coram nobis at face value. Green, 2016 Ark. 386, 502 S.W.3d

524.

                     I. Sufficiency of the Evidence to Sustain the Judgment

       Carner’s coram nobis petition is largely made up of claims that the evidence adduced

at his trial was insufficient to prove that he was guilty of first-degree murder. Challenges to

the sufficiency of the evidence constitute a direct attack on the judgment and are not

cognizable in a coram nobis proceeding. Grady v. State, 2017 Ark. 245, 525 S.W.3d 1.

Allegations that the evidence presented at trial was not sufficient to support a finding of the

defendant’s guilt are issues to be addressed at trial, and, when appropriate, on the record on

direct appeal. Jackson v. State, 2017 Ark. 195, 520 S.W.3d 242.

                                        II. Trial Error

       Assertions of trial error that were raised at trial, or which could have been raised at

trial, are not within the purview of a coram nobis proceeding. Howard, 2012 Ark. 177, 403

S.W.3d 38. Such claims are not within the scope of the limited grounds on which the writ

may issue, and a coram nobis action does not provide the petitioner with a means to retry

his or her case.

                        III. Review of Judgment by the Appellate Courts

       A coram nobis proceeding is not a means to challenge the review conducted by the

appellate court on direct appeal. Any petition for rehearing or review that Carner desired

to file after the court of appeals had affirmed the judgment in his case should have been filed

in accordance with Arkansas Supreme Court Rules 2-3 and 2-4 (2016) before the mandate

of the court of appeals was issued.

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       With respect to Carner’s contention that this court did not delve into the evidence

adduced at his trial, the only proceeding in this court concerning Carner’s conviction was a

motion for belated appeal that Carner filed here in 2005. The motion, which was filed

pursuant to Rule 2(e) of the Arkansas Rules of Appellate Procedure–Criminal (2016),

sought to proceed with a belated appeal from the trial court’s denial of his pro se petition

pursuant to Arkansas Rule Criminal Procedure 37.l (2004). The motion was denied because

Carner did not show good cause for his failure to file a timely notice of appeal from the

order. Carner v. State, CR-05-1207 (Ark. Jan. 5, 2006) (unpublished per curiam). See

McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). The sufficiency of the evidence

to support the judgment was not a factor in this court’s determination that Carner had not

demonstrated good cause for not timely filing a notice of appeal. Moreover, as with the

court of appeals’ decision to affirm the judgment, this court’s decision on a motion for

belated appeal cannot be challenged in a coram nobis proceeding.

                                   IV. Brady v. Maryland

       The United States Supreme Court held in Brady 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 punishment, irrespective of the good faith or bad faith of

the prosecution.” 373 U.S. at 87. There are three elements of a Brady violation: (1) the

evidence at issue must be favorable to the accused, either because it is exculpatory or because

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

or inadvertently; (3) prejudice must have ensued. Strickler v. Greene, 527 U.S. 263 (1999).

When determining whether a Brady violation has occurred, it must first be established by

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the petitioner 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).


       Carner has not established a Brady violation. He states only that prejudice occurred

“as referencing the petitioner’s prior when such was not supposed to had been.” Carner

does not explain the allegation further, and he does not allege that the State suppressed any

evidence. Claims without a factual basis are not a ground for the writ. Green, 2016 Ark.

386, 502 S.W.3d 524.

       Petition denied.




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