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                   SUPREME COURT OF ARKANSAS.
                                       No.   CR-09-831


BENJAMIN CARTER, JR.                             Opinion Delivered December   8, 2016
                             PETITIONER
                              PRO SE PETITION TO REINVEST
V.                            JURISDICTION IN THE TRIAL
                              COURT TO CONSIDER A
 STATE OF ARKANSAS            PETITION FOR WRIT OF ERROR
                   RESPONDENT CORAM NOBIS
                              [UNION COUNTY CIRCUIT
                              COURT, NO. 70CR-08-482]

                                                 PETITION DENIED.

                                       PER CURIAM


        In 2008, Benjamin Carter, Jr., was found guilty by a jury of possession of cocaine

 with intent to deliver, possession of marijuana with intent to deliver, possession of drug

 paraphernalia, simultaneous possession of drugs and a firearm, and maintaining a drug

 premises located in El Dorado. He was sentenced to a term of life imprisonment and a

 $25,000 fine on the cocaine-possession charge, 240 months’ imprisonment and a $25,000

 fine on the marijuana-possession charge, 480 months’ imprisonment on the simultaneous-

 possession charge, 240 months’ imprisonment and a $10,000 fine on the paraphernalia

 charge, and 144 months’ imprisonment and a $10,000 fine on the drug-premises charge.

 The sentences were ordered to be served consecutively. This court affirmed. Carter v. State,

 2010 Ark. 293, 367 S.W.3d 544.

        Carter subsequently proceeded in the trial court with a petition for postconviction

 relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2008) in which he contended

 that his trial counsel was ineffective. The petition was denied, and this court dismissed an
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appeal from the order brought by Carter on the ground that the claims raised were

conclusory in nature and did not warrant relief under the Rule. Carter v. State, 2011 Ark.

226 (per curiam).

       Now before us is Carter’s 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 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. 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

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conviction and appeal. Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. These categories,

however, are not absolute and may be expanded when there is a showing of a procedural

gap whereby a petitioner in a particular case would be denied due process of law if a coram-

nobis proceeding were not allowed to fill the void. See Strawhacker v. State, 2016 Ark. 348;

see also Pitts v. State, 2016 Ark. 345.

       As grounds for the writ, Carter asserts that the State violated his right to due process

of law pursuant to Brady v. Maryland, 373 U.S. 83 (1963), by concealing that it had induced

Robert Moore to testify falsely against Carter by threatening Moore that Moore would be

sent to prison for life if he did not “implicate Benjamin Carter as a drug dealer and drug

kingpin.” Carter has appended to his petition Moore’s affidavit in which Moore avers that

he was pressed by the State to testify untruthfully that drugs found in his possession were

obtained from Carter. He further avows that, after he had given the false testimony at

Carter’s 2008 trial, he informed Carter’s mother in 2009 that Carter, contrary to Moore’s

trial testimony, had not been in possession of drugs. Moore further states that he and Carter’s

mother and sister visited the attorney who represented Carter on direct appeal and provided

the information to the attorney and were told that his having given false testimony would

not be “relevant” to the direct appeal. Carter contends that his mother never mentioned

Moore’s statement to him and that he learned of Moore’s recantation of his trial testimony

approximately six years after Moore informed his mother that Moore had committed

perjury.1 Carter offers no further evidence to support Moore’s statement that Moore was



1Carter attributes his decision to file a coram-nobis proceeding in this court to federal court
opinion rendered on January 21, 2016, in the United States District Court for the Western
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induced by the State to give false testimony, and the lack of factual support for a claim in a

coram-nobis petition is, in itself, cause to decline to issue the writ. See Noble v. State, 2015

Ark. 215, at 3, 462 S.W.3d 341, 344 (per curiam). A court considering a claim of a Brady

violation in a coram-nobis petition is not required to take the petitioner’s allegations at face

value without substantiation. Thacker v. State, 2016 Ark. 350.

       There are three elements necessary to establish 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. Howard v. State, 2012 Ark. 177, at 8, 403

S.W.3d at 44. Evidence is material “if there is a reasonable probability that, had the evidence

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

Newman, 2009 Ark. 539, at 13-14, 354 S.W.3d at 69. When determining whether a Brady

violation has occurred, it must first be established by 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.




District of Arkansas, in Carter v. Hobbs, 2016 WL 264941, that denied his petition for writ
of habeas corpus. In the habeas petition, Carter contended that the State acted wrongly by
threatening witnesses with harsh sentences to induce their cooperation with the State in
building a case against him. To substantiate his claim, Carter produced the affidavits of three
people, Michael Hunter, Markesia Faison, and Rolanda Loggins, who each averred that it
was Hunter who was the drug dealer rather than Carter. The habeas petition was denied.
The magistrate noted that Carter knew of the three people on the day of his arrest; and,
moreover, there was ample evidence of Carter’s guilt introduced at trial to sustain his
conviction such that it could not be said that no reasonable juror would have reached a
different conclusion regarding his guilt if the information in the three affidavits had been
brought out at trial.
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446, 452, 182 S.W.3d 477, 480 (2004); see also Berger v. State, 2016 Ark. 129, 4, 487 S.W.3d

815, 818 (per curiam).

       If Moore’s affidavit is considered as a recantation his trial testimony, it is well settled

that a claim of recanted testimony, standing alone, is not cognizable in an error-coram-nobis

proceeding. Stenhouse v. State, 2016 Ark. 295, at 4 (per curiam); see also Smith v. State, 200

Ark. 767, 140 S.W.2d 675 (1940) (holding that the writ was not available to afford relief on

the ground that the principal witness against the accused had recanted and that others since

the accused’s conviction had confessed to the crime). This is so because a writ of error

coram nobis may not be used to contradict any fact already adjudicated. Smith, 200 Ark.

767, 768, 140 S.W.2d 675, 676. As stated, Carter couches his claim concerning Moore as

a Brady violation rather than a claim of recanted testimony by alleging that the defense was

not aware at the time of trial that Moore had been induced by the State to testify falsely.

       Carter’s assertion fails as a Brady violation because, when the totality of the evidence

is considered, Carter has not shown that the outcome of the trial would have been different

had the defense known at the time of trial about Moore’s allegation of coercion by the State.

Carter has failed to assert any facts to give rise to the type of fundamental error required for

issuance of the writ. There is a distinction between fundamental error which requires

issuance of the writ and newly discovered information which might have created an issue

to be raised at trial had it been known. Jackson v. State, 2010 Ark. 81, at 4 (per curiam); see

also Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001) (per curiam).

       In view of the testimony and evidence adduced against Carter at trial, Carter has not

established that the jury would have reached a different verdict had the defense challenged

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Moore’s inculpatory testimony as having been coerced by the State. In a coram-nobis

proceeding, the court must weigh the significance of the information that was alleged to

have been concealed from the defense against the totality of the evidence to determine if

the hidden information or evidence at issue would have been such as to have prevented

rendition of the judgment had the existence of that material been known at the time of trial.

See Smith v. State, 2015 Ark. 188, at 5-6, 461 S.W.3d 345, 350 (per curiam); see also Goff v.

State, 2012 Ark. 68, 398 S.W.3d 896 (per curiam). We consider the cumulative effect of

the allegedly concealed information or evidence to determine whether what was alleged to

have been hidden was material to the guilt or punishment of the defendant. Id.; see also

Lamar v. State, 2014 Ark. 245 (per curiam). We need not reiterate the discussion in our

opinion on direct appeal that concluded that there was substantial evidence to support the

judgment. It will suffice to say that the contents of Moore’s affidavit, even if Carter had

offered any factual substantiation for its truth, would not have demonstrated a Brady

violation that warrants issuance of a writ of error coram nobis.

       Petition denied.




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