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                 SUPREME COURT OF ARKANSAS
                                         No.   CR-02-228
                                                    Opinion Delivered   April 30, 2015

JAMES E. SMITH                                      PRO SE THIRD PETITION TO
                               PETITIONER           REINVEST JURISDICTION IN THE
                                                    TRIAL COURT TO CONSIDER A
V.                                                  PETITION FOR WRIT OF ERROR
                                                    CORAM NOBIS
                                                    [JEFFERSON COUNTY CIRCUIT
STATE OF ARKANSAS                                   COURT, NO. 35CR-99-724]
                            RESPONDENT


                                                    PETITION DISMISSED.


                                        PER CURIAM

       In 2001, petitioner James E. Smith was found guilty by a jury of two counts of rape for

engaging in sexual intercourse with his girlfriend’s daughters when they were both under the age

of fourteen. Petitioner testified at trial that he had sex with the victims, but he contended that

they were eighteen and twenty years old when the acts occurred and that both had consented.

Petitioner was sentenced to two consecutive terms of twenty years’ imprisonment. The

Arkansas Court of Appeals affirmed. Smith v. State, CR-02-228 (Ark. App. Jan. 8, 2003)

(unpublished) (original docket no. CACR 02-228).

       After the judgment was affirmed, petitioner sought postconviction relief in the trial court

in a pro se petition pursuant to Arkansas Rule of Criminal Procedure 37.1 (2001). The petition

was denied, and we affirmed the order. Smith v. State, CR-05-294 (Ark. Feb. 23, 2006)

(unpublished per curiam).

       In 2012, petitioner filed in this court a pro se petition, approximately 200 pages in length,
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to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis.1

The petition was denied. Smith v. State, 2012 Ark. 403 (per curiam).

       In 2014, petitioner filed a second petition to reinvest jurisdiction in the trial court to

consider a petition for writ of error coram nobis, which was also approximately 200 pages in

length. In the petition, petitioner repeated most of the claims for relief alleged in the first

petition, albeit in somewhat different language, pertaining to inconsistent statements made by

the victims. We dismissed the petition on the ground that it was a successive petition that

repeated the allegations contained in the first such petition and lacked merit. Smith v. State, 2014

Ark. 246 (per curiam).

       On March 12, 2015, petitioner filed his third coram-nobis petition that is now before us,

which is also approximately 200 pages in length. Again, petitioner repeats the assertions

contained in the first and second petitions, contends that the prosecution fabricated evidence,

argues that the evidence against him was insufficient to sustain the judgment, and alleges that

there were errors made by the trial court in the admission of evidence.

       We first note that a 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. Henderson v. State, 2014 Ark. 180 (per curiam);

Cloird v. State, 2011 Ark. 303 (per curiam).

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

than its approval. Pitts v. State, 2014 Ark. 132 (per curiam); Martin v. State, 2012 Ark. 44 (per

       1
        The petition was assigned the docket number for the direct appeal of the judgment of
conviction.

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curiam). 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 judgment. Camp v. State, 2012 Ark. 226 (per curiam). To warrant a writ of error

coram nobis, a petitioner has the burden of bringing forth some fact, extrinsic to the record, that

was not known at the time of trial. Cloird, 2011 Ark. 303. Coram-nobis proceedings are

attended by a strong presumption that the judgment of conviction is valid. Cherry v. State, 2014

Ark. 81 (per curiam).

       In the instant petition, petitioner raises some claims of trial error and argues that the

evidence was insufficient to sustain the judgment, but the majority of the allegations rest on

petitioner’s claim that the victims were not truthful in their testimony at trial and in their

statements to the police and that the inconsistencies in the victims’ statements proves that he

was innocent. He also contends, as he did in the original petition, that the prosecution withheld

the statements of the victims from the defense in violation of Brady v. Maryland, 373 U.S. 83

(1963), thereby denying the defense the opportunity to compare the statements to the police

report concerning the offenses. The same handwritten statements by the victims that were

appended to the first and second coram-nobis petition are appended to this latest petition.

       As with the first and second petitions, petitioner has not stated a ground for the writ.

This court has previously recognized that a writ of error coram nobis is available to address

errors found in only four categories: insanity at the time of trial, a coerced guilty plea, material

evidence withheld by the prosecutor, or a third-party confession to the crime during the time



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between conviction and appeal. Philyaw v. State, 2014 Ark. 130 (per curiam); Camp, 2012 Ark.

226. Allegations of a Brady violation fall within one of the four categories of error that this court

has recognized. Camp, 2010 Ark. 226; Hogue v. State, 2011 Ark. 496 (per curiam). The fact that

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

nobis relief. Camp, 2010 Ark. 226. Assuming that the alleged withheld evidence meets the

requirements of a Brady violation and is both material and prejudicial, in order to justify issuance

of the writ, the withheld material evidence must also be such as to have prevented rendition of

the judgment had it been known at the time of trial. Id. To merit relief, 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. It is a petitioner’s burden to show that the writ is warranted. Scott v. State, 2009 Ark. 437 (per

curiam). This court will grant permission for a petitioner to proceed with a petition for writ of

error coram nobis only when it appears that the proposed attack on the judgment is meritorious.

Hogue, 2011 Ark. 496. We are not required to accept the allegations in a petition for writ of error

coram nobis at face value. Charland v. State, 2013 Ark. 452; Goff v. State, 2012 Ark. 68, 398

S.W.3d 896 (per curiam).

       The evidence contemplated in Brady is “evidence material either to guilt or punishment.”

373 U.S. at 87. The Court later defined the test for material evidence in the context of a Brady

violation as being “whether there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would be different.” Strickler v. Greene, 527

U.S. 263, 280 (1999); see also Lacy v. State, 2010 Ark. 388, 377 S.W.3d 227. To establish a Brady



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violation, three elements are required: (1) the evidence at issue must be favorable to the accused,

either because it is exculpatory or because it is impeaching; (2) that evidence must have been

suppressed by the State, either willfully or inadvertently; (3) prejudice must have ensued.

Larimore v. State, 341 Ark. 397, 404, 17 S.W.3d 87, 91 (2000); see Lee v. State, 340 Ark. 504, 11

S.W.3d 553 (2000). This court has recognized that the withholding by the prosecution of

material evidence is a ground for reinvesting jurisdiction in the trial court to consider a writ of

error coram nobis. See Buckley v. State, 2010 Ark. 154, at 1 (per curiam).

       We have already rejected petitioner’s arguments concerning the victims’ allegedly

inconsistent statements. We further note, as we did when the prior petition based on the same

claims was dismissed, that the evidence adduced at trial against petitioner was overwhelming.

Both victims testified that petitioner had sexual intercourse with them frequently when they were

in elementary school, below the ages of twelve. Petitioner conceded in cross-examination at trial

that he had engaged in sexual relations with the victims but only after each one seduced him

within a two-week period when they were adults over the age of eighteen. It was the jury’s task

to assess the credibility of the witnesses. See Laswell v. State, 2012 Ark. 201, 404 S.W.3d 818. The

significance of the inconsistent statements that petitioner alleges were hidden from the defense

must be weighed against the totality of the evidence to determine if the statements at issue would

have been such as to have prevented rendition of the judgment had the existence of those

documents been known at the time of trial. Goff, 2012 Ark. 68, 398 S.W.3d 896; Sanders v. State,

2011 Ark. 199 (per curiam). We consider the cumulative effect of the allegedly suppressed

evidence to determine whether the evidence that was alleged to have been suppressed was



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material to the guilt or punishment of the defendant. Goff, 2012 Ark. 68, 398 S.W.3d 896. Here,

the victims’ testimony was sufficient to establish that they were raped at ages well below

fourteen. While petitioner asserts repeatedly that there were myriad inconsistencies between the

victims’ handwritten statements and their testimony at trial, petitioner has not shown that any

specific inconsistency between the statements and the testimony was substantial enough to

undermine the victims’ testimony such that the judgment of guilt would not have been rendered.

Petitioner has not demonstrated a Brady violation that warrants issuance of a writ of error coram

nobis.

         As he did in the first and second petitions, petitioner argues throughout his petition that

the inconsistent statements of the victims rendered the evidence insufficient to sustain the

judgment. The issue is not cognizable in a coram-nobis proceeding. Philyaw, 2014 Ark. 130. The

sufficiency of the evidence and the credibility of witnesses are matters to be addressed at trial.

Id.

         The petition before us also contains a number of assertions that amount to allegations

of mere trial error. Such allegations by their very nature constitute issues known at the time of

trial that were addressed, or could have been addressed, at that time. Such claims are not

grounds for the writ. Anderson v. State, 2012 Ark. 270, 423 S.W.3d 30 (per curiam). This applies

even to issues of trial error of constitutional dimension that could have been raised in

the trial court. Travis v. State, 2014 Ark. 87 (per curiam).

         After examining the claims raised in this third petition, we conclude that petitioner’s

successive application for coram-nobis relief in this court is an abuse of the writ in that he

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alleges no fact sufficient to distinguish his claims in the instant petition from the claims in the

first or second. He did not establish in the first or second petitions that there was any basis for

the writ, and his reassertion of largely the same claims in the third petition is a misuse of the

remedy. Accordingly, the petition is dismissed. Rodgers v. State, 2013 Ark. 294 (per curiam) (“[A]

court has the discretion to determine whether the renewal of a petitioner’s application for the

writ, when there are additional facts presented in support of the same grounds, will be

permitted.”); Jackson v. State, 2010 Ark. 81 (per curiam) (citing Jackson v. State, 2009 Ark. 572 (per

curiam)); see also United States v. Camacho-Bordes, 94 F.3d 1168 (8th Cir. 1996) (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).

       Petition dismissed.




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