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                   SUPREME COURT OF ARKANSAS
                                         No.   CR-10-980


ROBERT JOSEPH MOTEN                                Opinion Delivered January   21, 2016
                                PETITIONER
                                         PRO SE PETITION AND AMENDED
V.                                       PETITION TO REINVEST
                                         JURISDICTION IN THE TRIAL
STATE OF ARKANSAS                        COURT TO CONSIDER A PETITION
                              RESPONDENT FOR WRIT OF ERROR CORAM
                                         NOBIS AND MOTION FOR
                                         EVIDENTIARY HEARING
                                         [ARKANSAS COUNTY CIRCUIT
                                         COURT, NORTHERN DISTRICT, NO.
                                         01CR-07-109]


                                                   AMENDED PETITION TREATED AS
                                                   SUBSTITUTED PETITION; MOTION
                                                   FOR HEARING TREATED AS
                                                   AMENDED PETITION; PETITIONS
                                                   DENIED.

                                         PER CURIAM

        Petitioner Robert Joseph Moten is incarcerated in the Arkansas Department of

 Correction pursuant to a 2010 judgment reflecting his convictions on one count of first-degree

 battery and one count of second-degree battery with an aggregate sentence of 264 months’

 imprisonment imposed on the two counts. On September 24, 2015, he filed a petition asking

 this court to reinvest jurisdiction in the trial court so that he may file a petition for writ of

 error coram nobis. Moten later filed an amended petition, which he apparently wishes to

 substitute for the earlier petition. He also filed a motion for an evidentiary hearing in the

 matter, which is intended as a supplement to Moten’s amended petition. We therefore treat
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the amended petition as a substituted petition and the motion for hearing as an amended

petition, and we deny the petitions.

       A prisoner who appealed his judgment and who wishes to attack his conviction by

means of a petition for writ of error coram nobis must first request this court to reinvest

jurisdiction in the trial court. Noble v. State, 2015 Ark. 141, 460 S.W.3d 774. Where the record

for the underlying proceedings remains in this court, the circuit court is deprived of

jurisdiction, and leave from this court is required before the circuit court may consider a

petition for the writ. Id. This court will grant permission to proceed with a petition for the

writ only when it appears, looking to the reasonableness of the allegations of the proposed

petition and the existence of the probability of the truth of those allegations, that the proposed

attack on the judgment is meritorious. Isom v. State, 2015 Ark. 225, 462 S.W.3d 662. This

court is not required to accept at face value the allegations of the petition. Penn v. State, 282

Ark. 571, 670 S.W.2d 426 (1984).

       Error coram nobis is an extraordinarily rare remedy, more known for its denial than its

approval. White v. State, 2015 Ark. 151, 460 S.W.3d 285. The remedy is exceedingly narrow

and appropriate only when an issue was not addressed or could not have been addressed at

trial because it was somehow hidden or unknown. Clark v. State, 358 Ark. 469, 192 S.W.3d

248 (2004). The function of the writ is to secure relief from a judgment rendered while there

existed some fact that would have prevented its rendition had it been known to the trial court

and that, through no negligence or fault of the defendant, was not brought forward before

rendition of the judgment. White, 2015 Ark. 151, 460 S.W.3d 285.




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

conviction is valid. Westerman v. State, 2015 Ark. 69, 456 S.W.3d 374. This court has recognized

four categories of error for which the writ is available: (1) insanity at the time of trial; (2) a

coerced guilty plea; (3) material evidence withheld by the prosecutor; (4) a third-party

confession to the crime during the time between conviction and appeal. Noble, 2015 Ark. 141,

460 S.W.3d 774. The writ is issued only under compelling circumstances to achieve justice

and to address errors of the most fundamental nature. White, 2015 Ark. 151, 460 S.W.3d 285.

       A brief summary of the facts established by the evidence presented at trial is necessary

to understand the issues that Moten raises in his petition. The trial testimony established that

Iesha Timmons and Curtis Abrams were at a club in Stuttgart for a birthday party. Moten’s

friend, Jonathan Jones, approached Timmons while she was dancing. Timmons pushed Jones

away when he placed his hands down the back of her pants. Abrams intervened, and Jones

ended up on the floor with Abrams standing over him. At this point, Moten came up behind

Abrams. Timmons saw Moten striking Abrams, and she pulled Moten away. She then realized

that her arm was cut. Abrams had been stabbed in the back, the side, and the buttocks with a

knife. Timmons’s wounds were not serious, but Abrams’s were. His wounds required

hospitalization and surgery.

       Moten was convicted at a bench trial, and the Arkansas Court of Appeals affirmed the

judgment. Moten v. State, 2011 Ark. App. 417. Moten unsuccessfully pursued postconviction

relief under Arkansas Rule of Criminal Procedure 37.1 (2015), and this court affirmed the

denial of relief. Moten v. State, 2013 Ark. 503 (per curiam).




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       In his petitions, Moten alleges that the State withheld evidence in violation of Brady v.

Maryland, 373 U.S. 83 (1963), as his proposed grounds for the writ. Specifically, he points to

an incident report filed by police officer Allison Davis, an affidavit stating facts to support

probable cause for his arrest warrant, and Jones’s criminal history as evidence that he alleges

the State suppressed.

       To establish a Brady violation by the State as grounds for coram-nobis relief, the

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

it is impeaching; the evidence must have been suppressed by the State, either willfully or

inadvertently; and prejudice must have ensued. Isom, 2015 Ark. 225, 462 S.W.3d 662.

Assuming that the evidence otherwise meets the requirements of a Brady violation, and is both

material and prejudicial, the withheld evidence must also have been such as to have prevented

rendition of the judgment had it been known at the time of trial, that is, the 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. See Camp v. State, 2012 Ark. 226 (per curiam). Moten fails to allege a Brady violation that

would provide grounds for the writ because the evidence that he alleges was withheld would

not have prevented rendition of the judgment if it had been known at the time of trial.

       Moten contends that the suppressed items would have furthered his claim of an illegal

arrest. He asserts that the initial incident report and other items show that the statements in

the probable-cause affidavit were false and therefore insufficient to establish probable cause

for his arrest. As this court noted in our opinion affirming the denial of Moten’s petition for

postconviction relief, a challenge to the probable cause for the warrant or the validity of an


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arrest, without more, does not bring the outcome of the proceedings into question. See

Singleton v. State, 256 Ark. 756, 510 S.W.2d 283 (1974); see also Mauppin v. State, 309 Ark. 235,

831 S.W.2d 104 (1992) (holding that an illegal detention will not void a subsequent conviction).

An illegal arrest, standing alone, does not vitiate a valid conviction. Chestang v. State, 2015 Ark

372 (per curiam) (citing Biggers v. State, 317 Ark. 414, 878 S.W.2d 717 (1994)).

       In conjunction with this argument, Moten contends that he was unfairly singled out

for prosecution because he declined to provide a statement concerning the events. Even if

Moten could demonstrate that the prosecution lacked a sufficient basis for the arrest or that

his arrest was illegal, such proof would not have prevented rendition of the judgment or

establish the requisite prejudice to support issuance of the writ. To the extent that Moten may

assert trial error or insufficient evidence concerning this issue, the claims are not within the

purview of a coram-nobis proceeding. Carter v. State, 2015 Ark. 397 (per curiam).

       Moten also contends that the allegedly withheld evidence could have been used to

impeach Jones and a police investigator, Detective Mark Duke. Moten admits, however, that

neither Jones nor Duke testified at trial. Moten has therefore not shown that the allegedly

withheld evidence could have been used for impeachment purposes and produced a different

result at trial. He cannot demonstrate a reasonable probability that the judgment would not

have been rendered if the evidence had been available to impeach the witnesses.

       Moten also contends that the evidence might have been used to better present Jones

as an alternate suspect, but he does not explain how the evidence may have been used at trial

other than for impeachment purposes. Moten appears to contend that the incident report and

other information allegedly withheld make it clear that Timmons did not see who cut her or


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stabbed Abrams, but that fact was brought out on cross-examination at trial. Moten does not

demonstrate that there was additional information in the allegedly withheld evidence that was

not brought out at the trial.

       Moten fails to allege facts to support his allegations that material evidence was withheld

that would have prevented the rendition of the judgment had it been known at the time of

trial; therefore, he fails to provide grounds for issuance of the writ. See Williamson v. State, 2015

Ark. 373, ___ S.W.3d ___ (per curiam). The proposed attack on the judgment does not appear

meritorious, and Moten has not stated cause to support reinvesting jurisdiction in the trial

court for coram-nobis proceedings. Although the State contends that Moten has not pursued

his claims with diligence, we need not consider whether Moten was diligent because he failed

to present grounds to support issuance of the writ. See Barnett v. State, 2015 Ark. 190, 461

S.W.3d 683 (per curiam).

     Amended petition treated as substituted petition; motion for hearing treated as
amended petition; petitions denied.




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