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                   SUPREME COURT OF ARKANSAS.
                                       No.   CR-08-458


MYRON NEWJEAN ANDERSON, JR.                      Opinion Delivered February   16, 2017

                    PETITIONER PRO SE PETITION TO REINVEST
                               JURISDICTION IN THE TRIAL
V.                             COURT TO CONSIDER A
                               PETITION FOR WRIT OF ERROR
                               CORAM NOBIS AND PRO SE
 STATE OF ARKANSAS             MOTION FOR APPOINTMENT OF
                               COUNSEL
                   RESPONDENT [ASHLEY COUNTY CIRCUIT
                               COURT, NO. 02CR-06-197]

                                                 PETITION DENIED; MOTION
                                                 MOOT.


                                       PER CURIAM

        In 2007, a jury found petitioner Myron Newjean Anderson, Jr., guilty of five counts

 of a terroristic act and one count of being a felon in possession of a firearm. The jury

 imposed an aggregate sentence of 1320 months’ imprisonment in the Arkansas Department

 of Correction. The Arkansas Court of Appeals affirmed. Anderson v. State, CR-08-458

 (Ark. App. Jan. 28, 2009) (unpublished) (original docket no. CACR08-458). Anderson

 timely filed a petition for postconviction relief under Arkansas Rule of Criminal Procedure

 37.1 (2008) that the trial court denied. Anderson lodged an appeal from the denial, and this

 court dismissed the appeal. Anderson v. State, 2009 Ark. 493 (per curiam). On December
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7, 2016, Anderson filed this pro se petition seeking to reinvest jurisdiction in the trial court

to consider a petition for writ of error coram nobis.1

          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. 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 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 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. 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.




          1
              For clerical purposes, the motion was assigned the same docket number as the direct
appeal.
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       Anderson seeks leave to proceed in the trial court for a writ of error coram nobis

contending there was prosecutorial misconduct based on the State’s reliance on perjured or

false testimony. He further contends that the State failed to disclose exculpatory evidence

in violation of Brady v. Maryland, 373 U.S. 83 (1963).



       During Anderson’s trial, evidence established that he was a felon, that he was in the

nightclub shooting a firearm on the night in question, and that seven people were shot.

Anderson, CR-08-458, slip op. at 1. On appeal, Anderson argued that the “testimony from

the witnesses was so inconsistent that it was unreliable.” Id. Anderson failed to cite to any

authority or advance any argument for the untenable assertion that mere inconsistency in

the testimony of different witnesses, in and of itself, so destructive of the jury’s ability to

discern the truth that it somehow renders otherwise-sufficient evidence insufficient to

support a criminal conviction, and the court of appeals did not address his directed-verdict-

motion argument on appeal. Id.

       Here, Anderson makes conclusory claims that the prosecutor permitted false

testimony by Courtney Hampton, Reco Webb, Harold McDade, Scott Williams, and Billy

Ray Brown to go “uncorrected[.]” While arguing that the identity of the perpetrator was

at issue during the investigation and trial, Anderson contends that, because the State’s case

was entirely based on the witnesses’ testimony, it was “more likely than not that no

reasonable [j]uror would have found petitioner guilty beyond a reasonable doubt.” He fails

to argue relief warranted by issuance of the writ.




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       The writ of error coram nobis does not lie to correct an issue of fact that has been

adjudicated, even though wrongly determined, or for alleged false testimony at trial.

Chatmon v. State, 2015 Ark. 417, 473 S.W.3d 542 (per curiam). When an issue could have

been raised at trial or is cognizable in some other legal proceeding, that issue is not

cognizable in a coram nobis proceeding. Id. Allegations of prosecutorial misconduct,

excepting Brady violations, or false testimony are the type that could have been raised at

trial, and the claims are therefore not the type that provide grounds for the writ. Id.

Moreover, to the extent that Anderson’s assertions concerning the allegedly false testimony

could be considered claims that the evidence was insufficient to sustain the judgment, issues

concerning the sufficiency of the evidence or the credibility of the witnesses are not

cognizable in error coram nobis proceedings. Pinder v. State, 2015 Ark. 423, 474 S.W.3d

490 (per curiam).

       Anderson contends that the State “suppressed the [t]erroristic [a]ct elements with[-]

holding the true nature of the charges against [him]” resulting in a Brady violation.

Specifically, he contends that the terroristic-act statute’s language is inconsistent. He argues

that section “(A)(1)” states that one commits a terroristic act when he or she “shoots at or

in any manner projects an object, with the purpose to cause injury to another person or

other person or damage to property, at a conveyance which is being operated or which is

occupied by another person or persons” which is inconsistent with section “(A)(1)(a),”

which “requires shoots at or in any manner projects an object with the purpose to cause

injury to another person.”




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

wrongfully withheld by the State. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per

curiam). 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 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.

       A person commits a terroristic act when, while not in the commission of a lawful

act, “he or she shoots at or in any manner projects an object, with the purpose to cause

injury to another person or other persons or damage to property, at a conveyance which is

being operated or which is occupied by another person or persons.” Ark. Code Ann. § 5-

13-310(a)(1) (Repl. 2006).2 A person also commits a terroristic act when, while not in the

commission of a lawful act, “he or she shoots, with the purpose to cause injury to a person

or persons or damage to property, at an occupiable structure.” Ark. Code Ann. § 5-13-



       2
           Anderson committed the terroristic acts on November 23, 2006.

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310(a)(2) (Repl. 2006). Contrary to Anderson’s claim, there is no subsection “(A)(1)(a)” in

section 5-13-310.

       Anderson’s claim is not one seeking relief for a Brady violation. He fails to point to

any evidence—material or exculpatory—that was withheld by the State or that any

prejudice ensued. In fact, Anderson fails to establish the existence of any fact or evidence

extrinsic to the record because any defect in the criminal information could have been

discovered or raised in the trial court.3 Smith v. State, 2016 Ark. 201, 491 S.W.3d 463 (per

curiam). Claims that a petitioner either could have known, or knew, at the time of trial do

not provide grounds for issuance of a writ of error coram nobis. Id. Moreover, to the

extent Anderson raises a claim of statutory interpretation, again, it does not fall within the

purview of a coram nobis proceeding because it is not an error found in one of the four

above-referenced categories of error, i.e., insanity at the time of trial, a coerced guilty plea,

material evidence withheld by the prosecutor, or a third-party confession.4 Howard, 2012

Ark. 177, 403 S.W.3d 38. None of the claims raised by Anderson demonstrate that there

was some fundamental error at trial or that there existed some fact which would have

prevented rendition of the judgment if it had been known to the trial court and which,

through no negligence or fault of his own, was not brought forward before rendition of



       3
        In his Rule 37.1 appeal, Anderson argued that trial counsel was ineffective for failing
to challenge the criminal information charging him with multiple counts of a terroristic act
in violation of Arkansas Code Annotated section 5-13-310, contending the information
omitted elements of the charged crime. Anderson v. State, 2013 Ark. 332, at 3–4 (per
curiam).
       4
        Although the four categories are not set in stone, the remedy of coram nobis remains
an extraordinary remedy. See Strawhacker v. State, 2016 Ark. 348, 500 S.W.3d 716.
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judgment. Newman, 2009 Ark. 539, 354 S.W.3d 61. Because Anderson fails to state

grounds for the writ, his motion for appointment of counsel is moot.

      Petition denied; motion moot.




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