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                   SUPREME COURT OF ARKANSAS.
                                        No.   CR-08-1385


                                                  Opinion Delivered November   3, 2016
EDWARD CARTER
                               PETITIONER
                              PRO SE SECOND PETITION TO
V.                            REINVEST JURISDICTION IN THE
                              TRIAL COURT TO CONSIDER A
 STATE OF ARKANSAS            PETITION FOR WRIT OF ERROR
                   RESPONDENT CORAM NOBIS AND REQUEST TO
                              RESPOND TO RESPONDENT’S
                              RESPONSE TO PETITION
                              [GARLAND COUNTY CIRCUIT
                              COURT, NO. 26CR-08-142]


                                                  PETITION AND REQUEST DENIED.

                                         PER CURIAM


        In 2008, petitioner Edward Carter was found guilty by a jury of aggravated robbery

 and was sentenced to 360 months’ imprisonment. The Arkansas Court of Appeals affirmed.

 Carter v. State, 2009 Ark. App. 683.

        In 2015, Carter filed in this court a pro se petition to reinvest jurisdiction in the trial

 court to consider a petition for writ of error coram nobis in the case. The petition, as well

 as an amendment to it, were denied. Carter v. State, 2015 Ark. 397 (per curiam). On August

 17, 2016, Carter filed a second such petition that is now before us. After the State filed its

 response, Carter filed a request to be allowed to file a response to the State’s response. We

 deny the petition and the request.

        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
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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. 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. Westerman v. State, 2015 Ark. 69, at 4, 456 S.W.3d

374, 376; 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 only 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.

       Evidence adduced at Carter’s trial reflected that he and Jessica Brewer were shopping

at a Wal-Mart store at the same time Salli Reding and Shannon Smith were shopping in the

store. Reding observed Carter placing video games inside his clothing. When Carter left

the store without paying for the games, Reding followed him outside and confronted him

about his failure to pay. At that point, Carter pulled a gun from his pocket, cocked it, and

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pointed it at Reding. Smith testified that she did not see Carter pull out the gun but saw a

gun in Carter’s hand down at his side after Reding stepped back and called out, “He’s got

a gun.” Brewer also testified to seeing a gun at Carter’s side. Carter then left the parking

lot with Brewer and went to a resale shop where he sold the stolen games as used electronics.

       On direct appeal, Carter argued that the State failed to prove that he had actual,

unauthorized possession of merchandise from the Wal-Mart, that there was no proof that a

security alarm sounded when he left the store, and that no representative of the store testified

to a loss of the merchandise. He contended that, without proof of the theft, there could be

no aggravated robbery. The court of appeals rejected the arguments, finding that there was

substantial evidence of a theft. Carter, 2009 Ark. App. 683, at 3. The court of appeals held

that aggravated robbery occurred when physical force was threatened. Id.

       As grounds for his first petition for a writ of error coram nobis, Carter contended

that the State violated Brady v. Maryland, 373 U.S. 83 (1963). He reiterates the claim in this

petition and in the request to respond to the State’s response to the petition.

       A Brady violation is established when material evidence favorable to the defense is

wrongfully withheld by the State. Isom v. State, 2015 Ark. 225, 462 S.W.3d 662. In Strickler

v. Greene, 527 U.S. 263 (1999), the Supreme Court revisited Brady and declared that, when

the petitioner contends that material evidence was not disclosed to the defense, the

petitioner must show that “there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different.” Strickler,

527 U.S. at 280 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). In Strickler, the

Court also set out the three elements of a true Brady violation: (1) the evidence at issue must

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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; and

(3) prejudice must have ensued. Strickler, 527 U.S. 263; see Howard, 2012 Ark. 177, 403

S.W.3d 38. Impeachment evidence that is material, as well as exculpatory evidence, falls

within the Brady rule. Bagley, 473 U.S. 667. To determine whether the proposed attack

on the judgment is meritorious so as to warrant the granting of permission to reinvest

jurisdiction in the trial court to pursue a writ of error coram nobis, this court looks to the

reasonableness of the allegations of the petition and to the existence of the probability of the

truth to those claims. Isom, 2015 Ark. 225, 462 S.W.3d 662.

       In the first petition, Carter based his Brady claim on the following assertions: Carter

did not take, or manifest the intention to take, anything of value from Reding; the only

crimes that Reding could have witnessed were shoplifting by Brewer, who stole the video

games, and, if Brewer passed those games to Carter, Reding was a witness only to Carter’s

being an accomplice to shoplifting; the State used a statement from a Wal-Mart customer as

evidence that an aggravated robbery had occurred; Reding was a witness only to the

aggravated robbery of Randall Nichols, a Wal-Mart employee; the affidavit in support of

the arrest warrant for aggravated robbery recited facts that supported only a showing of

shoplifting or accomplice to shoplifting; the victim was Wal-Mart, not Reding; Carter was

charged with one crime and convicted of another because there was no robbery; in her

pretrial statement, Reding speaks as though she were a police officer or “some type of store

security” rather than an ordinary shopper, and this constituted a “fabricated affidavit” that

was used to obtain an arrest warrant; Carter’s Fifth Amendment right to remain silent was

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violated because the “court stated that [Carter] did not confess to a shoplifting charge so he

cannot rely on it now”; Carter did not know that he was being tried for committing an

aggravated robbery against Reding; the State did not disclose that Reding was testifying as

a witness rather than a victim, and, as a result, she could not be asked if she believed that

Carter had any intention of taking anything of value from her by threat or force; and the

State allowed Reding’s perjured testimony to be introduced at trial.

       This court denied the relief sought in the first petition because it was abundantly

clear that the claims raised by Carter were challenges to the sufficiency of the evidence

adduced at trial rather than a violation of Brady in that he offered nothing to demonstrate

that any material evidence had been concealed from the defense. Carter, 2015 Ark. 397, at

5. Issues concerning the sufficiency of the evidence are not cognizable in coram-nobis

proceedings. Ventress v. State, 2015 Ark. 181, at 6, 461 S.W.3d 313, 317 (per curiam). The

question of the sufficiency of the evidence is to be settled at trial and on the record on direct

appeal. Sims v. State, 2012 Ark. 458 (per curiam). The claims of trial error were outside

the purview of a coram-nobis proceeding. Howard, 2012 Ark. 177, 403 S.W.3d 38. Even

constitutional issues that could have been addressed at trial are not within the purview of

the writ. See Watts v. State, 2013 Ark. 485, at 7 (per curiam).

       In this second petition for the writ, Carter repeats some of the same claims and again

seeks to challenge the evidence adduced at trial, and he again complains of trial error. He

first argues that, if there had been a proper arraignment in a timely manner, no court would

have found the evidence sufficient to bind him over for trial in the circuit court. He further

contends that only a photograph of the gun was produced at trial; that the gun in the

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photograph was a toy that could not be cocked; that the Wal-Mart manager did not give a

sworn statement or testify at trial even though the manager was the complainant; and that

any aggravated robbery was against Reding, but he was not charged with an offense against

her. As with the allegations raised in the first petition for the writ, these claims are not a

ground for the writ.

       Carter contends that Brady was violated by the State’s failure to produce the “best

evidence” of the offenses. He states that he did not bring the allegations in his first petition

because he did not receive certain information until after he had filed a petition under the

Freedom of Information Act (“FOIA”). Specifically, he states that he located newly

discovered evidence in the form of pictures that appear to show a different gun than the one

at issue in his trial and other information that refutes the testimony and evidence adduced

at trial. He asserts that he has learned that his fingerprints were not found on the gun, that

there was no video showing him stealing from Wal-Mart, and that were “narratives”

withheld by the State that would have been helpful to the defense and that were used by

the State to obtain a spurious warrant for his arrest. He contends that the material he

received through the FOIA request indicates that there was no probable cause for the

warrant. Carter argues that, if this information had been available to him at trial, he could

have moved to dismiss the warrant and suppress the evidence obtained through the warrant.

       First, it should be noted that we have held that a writ of error coram nobis cannot

be granted on the basis of newly discovered evidence alone. Pinder v. State, 2015 Ark. 423,

at 5, 474 S.W.3d 490, 493 (per curiam); Smith v. State, 301 Ark. 374, 375, 784 S.W.2d 595,

596 (1990). There is a distinction between fundamental error, which requires issuance of

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the writ, and newly discovered information, which might have created an issue to be raised

at trial had it been known. Hooper v. State, 2015 Ark. 108, at 6–7, 458 S.W.3d 229, 233

(per curiam). To establish that newly discovered evidence is a basis for the writ, the facts as

alleged as grounds for the writ must show that there is a reasonable probability that the

judgment of conviction would not have been rendered, or would have been prevented, had

the exculpatory evidence been disclosed at trial. Butler v. State, 2015 Ark. 488, at 3–4, 478

S.W.3d 210, 213 (per curiam); Dansby v. State, 343 Ark. 635, 641, 37 S.W.3d 599, 603

(2001). Carter has not established that there is a reasonable probability that any of the

information he cites in his petition would have resulted in a different outcome of the trial.

When the petitioner does not demonstrate that the newly discovered evidence would

somehow have created an issue sufficient to affect the outcome of the trial and preclude the

entry of the judgment, the petitioner has not established a ground to issue a writ of error

coram nobis. Wallace v. State, 2015 Ark. 349, at 11, 471 S.W.3d 192, 199 (per curiam).

       Moreover, Carter has not stated a ground for the writ because he offers no factual

substantiation that the State had hidden any specific, particular evidence from the defense at

the time of trial. Conclusory claims concerning evidence omitted from the record are

deficient as a basis for coram-nobis relief and do not establish that there is a reasonable

probability that the outcome of the proceeding would have been different if the State had

disclosed any particular evidence to the defense. See Strickler, 527 U.S. 263, 280; see also

Lacy v. State, 2010 Ark. 388, 377 S.W.3d 227. A coram-nobis proceeding is not a means

merely to contradict a fact already adjudicated in the trial court. See Stenhouse v. State, 2016

Ark. 295, at 4 (per curiam).

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       With respect to Carter’s allegations concerning the validity of the arrest warrant, any

defects in the arrest warrant could have been discovered and raised in the trial court. See

Smith v. State, 2016 Ark. 201, at 3 (per curiam). Carter’s claims regarding the warrant in

his case do not establish the existence of some fact extrinsic to the record that was concealed

from the defense. See id. The petitioner seeking to reinvest jurisdiction in the trial court

to proceed with a coram-nobis petition bears the burden of presenting facts to support the

claims for the writ because an application for the writ must make a full disclosure of specific

facts relied on and not merely state conclusions as to the nature of such facts. Howard, 2012

Ark. 177, 403 S.W.3d 38; see also Cloird v. State, 357 Ark. 446, 182 S.W.3d 477 (2004).

       Petition and request denied.




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