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                   SUPREME COURT OF ARKANSAS
                                         No.   CR-03-905

JEFFREY SCOTT RATCHFORD                             Opinion Delivered July   23, 2015
                    PETITIONER

V.                                                  PRO SE SECOND PETITION TO
                                                    REINVEST JURISDICTION IN THE
                                                    CIRCUIT COURT TO CONSIDER A
STATE OF ARKANSAS                                   PETITION FOR WRIT OF ERROR
                             RESPONDENT             CORAM NOBIS
                                                    [BENTON COUNTY CIRCUIT COURT,
                                                    NO. 04CR-01-1011]

                                                    PETITION DENIED.


                                          PER CURIAM


       In 2002, petitioner Jeffrey Scott Ratchford was found guilty by a jury of the rape of a

child less than fourteen years of age. The victim was S. R., his thirteen-year-old daughter. He

was also found guilty of two counts of sexual assault in the first degree in which the victims were

S. R. and Ratchford’s twelve-year-old daughter, T. R. A life sentence was imposed on the rape

charge and 120 months’ imprisonment on each of the sexual-assault charges, with all sentences

to be served concurrently. We affirmed the judgment as modified.1 Ratchford v. State, 357 Ark.

27, 159 S.W.3d 304 (2004).

       In 2014, Ratchford filed in this court a pro se petition to reinvest jurisdiction in the




       1
         We noted that, while the judgment-and-commitment order correctly reflected that
Ratchford was convicted and sentenced for one count of rape and two counts of sexual abuse
in the first degree, the order incorrectly stated that Ratchford was convicted and sentenced for
a total of two offenses. This court modified the order to reflect a total of three offenses.
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circuit court to consider a petition for writ of error coram nobis.2 A petition for leave to proceed

in the circuit 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.

Newman v. State, 2009 Ark. 539, 354 S.W.3d 61.

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

than its approval. Id. 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 circuit 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. 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. We have held that a writ of error coram nobis is

available to address 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. Coulter v. State, 365

Ark. 262, 227 S.W.3d 904 (2006).

       As grounds for the writ in the 2014 petition, Ratchford asserted that material evidence

was withheld from him in violation of Brady v. Maryland, 373 U.S. 93 (1963). While couched as

       2
      The petition was assigned the same docket number as the direct appeal from the
judgment of conviction.

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a claim of a Brady violation, which does fall within one of the four categories warranting coram-

nobis relief, this court found that Ratchford’s claim was actually one of ineffective assistance of

counsel, a claim that is not cognizable in a coram-nobis proceeding. Ratchford v. State, 2014 Ark.

452 (per curiam). We further declined to accept Ratchford’s alternative requests for relief in the

2014 petition, i.e. that this court issue a writ of certiorari to reopen his direct appeal, recall the

mandate in his direct appeal, or order the State to re-offer a plea bargain so that he could accept

it. Id.

          On May 1, 2015, Ratchford filed a second pro se petition to reinvest jurisdiction to

proceed with a coram-nobis petition, which is now before us. In the second petition, he

contends that, in December 2013, he obtained new evidence of a Brady violation that shows that

the verdict in his case was obtained by perjured testimony.3 To understand the Brady claim, it

is necessary to summarize the evidence adduced at trial on the charge of the rape of S. R.

          S. R. testified that Ratchford had touched her “lower private” with his tongue and that

“more than ten times,” he put his “lower private,” which was her term for penis, “into my

private.” There was no medical evidence presented concerning whether the penetration was

sufficient to have ruptured the hymen.

          In accordance with Arkansas Code Annotated section 5-14-103(a)(4) (Repl. 1997)

(superseded by Ark. Code Ann. § 5-14-103(a)(1)(C)(i) (Supp. 2001)), the jury was instructed that



          3
          Ratchford also refers to a plea bargain that his attorney allegedly failed to communicate
to him. He acknowledges that this court has already declined to grant relief on that claim when
his first coram-nobis petition was denied and states that his current petition does not raise that
allegation again.


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the offense of rape could be proven by evidence that the defendant engaged in sexual

intercourse or deviate sexual activity with the victim. “Sexual intercourse” was defined in the

jury instructions as penetration, however slight, of the labia majora by a penis. “Deviate sexual

activity” was defined as any act of sexual gratification involving the penetration, however slight,

of the of the anus or mouth of one person by the penis of any other person or the penetration,

however slight, of the labia majora of one person by any body member of another person.

       The newly discovered evidence that Ratchford states was obtained in 2013 consists of

the State’s knowledge of a physical examination of S. R., conducted in Michigan in June 2001,

which was eighteen months before his 2002 trial, and the report of that examination. He alleges

that the report constituted proof that S. R. could not have been raped repeatedly because there

were no physical signs of rape observed by the examiner even though Ratchford is a large man

who weighed nearly four hundred pounds at the time in question. Ratchford argues that this

report was not contained in the State’s file that was made available to the defense, that the report

was exculpatory, and that it could have been used to cast doubt on the credibility of S. R. and

other witnesses.

       As substantiation for the claim that there was such a report and that it was available to

the State, Ratchford has appended to his petition a copy of a document captioned, “Family

Independence Agency of Michigan Protective Services Investigation Summary,” dated June

2001, which indicates that a medical examination was conducted on S. R. by a Certified Nurse

Practitioner. The report states that the examiner found the hymen to be present and no sign of

physical injury to the genitals or anus. The report also states that, with respect to suspected



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sexual molestation, the examiner found that S. R.’s “allegations and presentation are very

convincing to this examiner.”

       Ratchford also appended to his petition a copy of the affidavit of attorney Mark

Hampton who represented him in postconviction proceedings, verified July 21, 2014, in which

Hampton avers that in 2004 he requested from the prosecutor’s office a copy of the State’s

entire file on his case as well as product information. Hampton further states in the affidavit his

belief that he did not receive the entire file at that time and that, in 2006, Ratchford had written

him a letter with a copy of the 2001 medical report from Michigan enclosed. Hampton states

in the affidavit that he had not seen that medical report in the prosecutor’s file. Ratchford

further alleges that attorney Craig Lambert obtained access to the prosecutor’s file in December

2013 and that the files Hampton received did not match those discovered in 2013. Ratchford

asserts that this proves that the State knew of the medical report before trial and did not disclose

it.

       In its response to the coram-nobis petition, the State urges this court to deny it as an

abuse of the writ because Ratchford clearly had the medical report in 2006 and had Hampton’s

July 2014 affidavit when he filed his first coram-nobis petition in this court in August 2014. (A

copy of Hampton’s affidavit was also appended to the first coram-nobis petition filed by

Ratchford.) The State argues that indulging Ratchford in a second petition when he could have

raised the claim in his first petition encourages piecemeal litigation of coram-nobis claims.

       The State also contends that the petition should be denied for want of diligence inasmuch

as Ratchford had provided Hampton with a copy of the medical report in 2006, indicating that



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he knew about it at that time. Additionally, the State asserts that there is no proof that the report

was actually hidden from the defense at trial and, in any event, the report would not have

undermined the victim’s credibility to the extent Ratchford alleges because physical evidence is

not necessary to sustain a conviction for rape.

       We find that Ratchford has not been diligent in bringing his claim concerning the 2001

medical report. The claim could have been brought nine years ago in 2006, and it could also

have been raised in Ratchford’s first coram-nobis petition filed in this court in August 2014.

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, and, in the absence of a valid excuse for delay, the

petition will be denied. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771. 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, 2012

Ark. 270, 423 S.W.3d 20 (per curiam). The requirement that a petitioner proceed with due

diligence is longstanding because coram-nobis relief is grounded on the need for the petitioner

to proceed with the petition when the claim for relief is first known. See Philyaw v. State, 2014

Ark. 130 (per curiam). Otherwise, the finality of judgments on which society relies is

undermined. See Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984).

       In addition to his failure to bring all allegations in his first coram-nobis petition and his

failure to exercise diligence in bringing his claim concerning the 2001 report, Ratchford has not



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established a Brady violation. A Brady violation is established when evidence favorable to the

defense is wrongfully withheld by the State. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407. One

shows a Brady violation by demonstrating that the favorable evidence could reasonably be taken

to put the whole case in such a different light as to undermine confidence in the verdict. Kyles

v. Whitley, 514 U.S. 419, 419 (1995).

       Here, it is clear that the report, even if it had been in the hands of the defense at trial,

would not have been sufficient to undermine confidence in the verdict. As stated, there was

evidence of penetration of the labia of the victim. The offense of rape was thus established

regardless of whether the hymen was affected or there were other physical signs of intercourse.

The testimony of a rape victim, standing by itself, constitutes sufficient evidence to support a

conviction. McDuffy v. State, 359 Ark. 180, 186, 196 S.W.3d 12, 15 (2004).

       Petition denied.




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