                                      Cite as 2015 Ark. 349

                 SUPREME COURT OF ARKANSAS
                                        No.   CR-03-713

                                                    Opinion Delivered   October 1, 2015
TEREGINALD WALLACE
                  PETITIONER                        SECOND PRO SE PETITION TO
                                                    REINVEST JURISDICTION IN THE
V.                                                  TRIAL COURT TO CONSIDER A
                                                    PETITION FOR WRIT OF ERROR
                                                    CORAM NOBIS, MOTION TO
STATE OF ARKANSAS                                   AMEND PETITION, AND MOTION
                            RESPONDENT              FOR HEARING
                                                    [PULASKI COUNTY CIRCUIT
                                                    COURT, NO. 60CR-02-1493]


                                                    PETITION DENIED; MOTION TO
                                                    AMEND TREATED AS AMENDED
                                                    PETITION AND DENIED; MOTION
                                                    FOR HEARING MOOT.


                                         PER CURIAM

       In 2002, petitioner Tereginald Wallace was found guilty by a jury of murder in the first

degree and sentenced as a habitual offender to 480 months’ imprisonment. The Arkansas

Court of Appeals affirmed. Wallace v. State, CR-03-713 (Ark. App. May 12, 2004) (original

docket no. CACR 03-713) (unpublished) (Wallace I).

       In 2005, Wallace 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. 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-
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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.

       In the 2005 petition, Wallace contended that the writ should issue because the

prosecution in his case had violated Brady v. Maryland, 373 U.S. 83 (1963). 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


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(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.

Impeachment evidence that is material, as well as exculpatory evidence, falls within the Brady

rule. Bagley, 473 U.S. 667.

       Wallace based his Brady claim on the assertion that after his trial was over, the State

nolle prossed charges against Sam Thomas, who had testified against Wallace at Wallace’s trial

and who had said that he had made no deal with the State in exchange for his adverse

testimony. Wallace argued that the State had a duty to disclose to the defense at the time of

trial that a deal had been made. Wallace further contended that the existence of the deal

constituted newly discovered evidence and was a violation of due process. On September 28,

2005, we denied the coram-nobis petition in a per curiam order. Wallace v. State, CR-03-713

(Ark. Sept. 28, 2005) (Wallace II).

       Now before us is Wallace’s second pro se petition to reinvest jurisdiction in the trial

court in his case to consider a petition for writ of error coram nobis filed in this court on June

16, 2015.1 Wallace has also filed a motion to amend the petition and a motion asking that a



       1
       He also asks that this court vacate or modify his sentence pursuant to Arkansas Code
Annotated section 16-90-111. As it is the trial court that has authority to grant any relief
appropriate under the statute, we will not consider Wallace’s claims for relief under section 16-
90-111. See Halfacre v. State, 2015 Ark. 105, at 3 (per curiam).

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hearing be held on the petition. As we find no merit to the petition, it is denied. We treat

the motion to amend the petition as an amended petition and also deny it. The motion for

a hearing is moot.

       For an understanding of Wallace’s claims for the writ, it is necessary to summarize the

facts of the case and the issues already raised by Wallace at trial, on direct appeal, and in his

first coram-nobis petition. In 2002, the partially decomposed body of Lorenzo Petties was

discovered near the Arkansas River. His hands and feet were bound, and a wire coat hanger

was twisted around his neck. At trial, the State presented an eyewitness, Sam Thomas.

Thomas claimed that he had observed Wallace, along with Bryan Salley and Kevin Brown,

beat and strangle Petties to death. A tape recording was admitted into evidence at trial that

Petties had made prior to his death in which he stated that Wallace had threatened to kill him

and that he was “scared to death.”

       The essence of Wallace’s defense was that someone else killed Petties. After the victim

was found, the police questioned Thomas about the murder. Thomas implicated Wallace,

Salley, and Brown, who were subsequently arrested and charged with the murder. During

the interview, Thomas also stated that he had told someone named “Tatum” about what he

had seen and that he had gotten a ride that night from someone named “Big Six.” Wallace’s

defense counsel claimed that Wallace told him that Tatum was Demetrius Spencer and that

Big Six was Kenneth Jordan. Jordan was found in the same cell block as Wallace in the

Pulaski County jail, where he was being held on an aggravated-robbery charge. Ultimately,

Jordan testified at Wallace’s trial that Thomas had told him that he and Petties were “getting

high in Salley’s truck and he got to tripping and I grabbed the push-wire and I wrapped it
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around his neck.” Jordan said that he immediately told Thomas that he did not want to hear

any further details.

           Demetrius Spencer was not located prior to trial. On the first day of Wallace’s trial,

Spencer was shot in the chest. At the hospital, he gave a statement in which he denied that

Thomas ever came to him and told him about the murder. He also claimed that someone

named “Blue Boy” told him that Thomas had told him where Petties’s body was located.

           After the trial ended and the judgment-and-commitment order was entered, Wallace’s

trial counsel learned of Spencer’s statement. Counsel moved for a new trial, alleging that the

failure to disclose Spencer’s statement constituted a Brady violation. The motion was denied.

On appeal, Wallace argued that the trial court erred in denying him an opportunity to cross-

examine Thomas about how Thomas had entered into a plea bargain in 1994 wherein an

attempted-murder charge in a case would be reduced to aggravated assault. Wallace claimed

that cutting off his inquiry into the circumstances surrounding Thomas’s plea agreement rose

to the level of a “denial of confrontation” and prevented him from challenging Thomas’s

credibility as a witness. He further argued that, if the jury had heard that Thomas was once

believed to have committed attempted murder, the testimony of prosecution witness Kenneth

Jordan that Thomas had admitted the murder to him would take “on a whole new light.”

The court of appeals rejected the arguments, finding that Thomas could be impeached with

his aggravated-assault conviction, but not the attempted murder charge. Wallace I, slip op.

at 7, 8.

           Wallace also argued on appeal that the trial court erred in denying his motion for a

continuance to find Demetrius Spencer. He claimed that he worked diligently to find
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witnesses to corroborate Jordan’s testimony and to find Spencer, contending that Spencer’s

second statement directly contradicted Thomas’s statement to police that he had talked to

“Tatum,” which he asserted was “clearly exculpatory” because it undermined Thomas’s

credibility. The court of appeals found no error. Wallace I, slip op. at 5-6.

       As his final point on appeal, Wallace argued that the denial of his motion for a new

trial on the grounds of an alleged “Brady/Kyles/Strickler” violation was constitutional error.

Wallace was referring to the duty to disclose exculpatory evidence pursuant to Brady, Kyles

v. Whiley, 514 U.S. 419 (1995), and Strickler. Wallace asserted that Spencer was an important

witness because his statement directly contradicted Thomas’s claim that Thomas told him

about the murder. He further claimed that Spencer gave the name of another person, “Blue

Boy,” who told him that Thomas knew where the body was. The court of appeals declined

to reverse the judgment, noting that Wallace had the burden of proving a Brady violation and

that he did not establish that he was prejudiced based on the facts as presented in the case.

That is, Wallace failed to demonstrate, in accordance with Lee v. State, 340 Ark. 504, 11

S.W.3d 553 (2000), that there was a reasonable probability that, had the evidence been

disclosed, the result of the proceeding would have been different. The court of appeals

pointed to the fact that Wallace failed to show that there was any admissible evidence that

Wallace could have gleaned from Spencer’s testimony. Wallace I, slip op. at 8. Prejudice

cannot be proved where the evidence cited as an alleged Brady violation would not have been

admissible to impeach the credibility of a witness for the State. In Wallace’s case, the court

of appeals said that, while it is true that Spencer’s statement seemed to contradict Thomas’s

statement to police that Thomas had told Spencer about the murder, it was clearly, as
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presented and argued in the case, a collateral matter, and therefore not admissible for cross-

examination. The court of appeals further noted that retrial is not required where the newly

discovered evidence was not admissible under our rules of evidence. Wallace I, slip op. at 8–9.

Moreover, even if the evidence had been admissible, the evidence would have been useful

only to raise minor defects in a witness’s testimony and would not be sufficient to create a

reasonable probability that the results of the proceeding would have been different. The court

further noted that Wallace’s impeachment evidence, i.e., that Thomas had related some

information about the murder to Blue Boy rather than Spencer, was such a minor detail that

it could not have given rise to a reasonable probability that the result of the trial would have

been different. Wallace I, slip op. at 9.

       The balance of Spencer’s potential testimony concerned admissions that Thomas

allegedly made to Blue Boy. The court of appeals acknowledged that, had Blue Boy been

able to testify as to such admissions, they would have been admissible as a statement against

penal interest. Ark. R. Evid. 804(b)(3). However, Blue Boy’s alleged statement to Spencer,

which only concerned Thomas, was not subject to the statement-against-interest exception.

Accordingly, the court of appeals could not conclude that Spencer’s testimony would have

had any effect on the outcome of the trial, much less that there was a reasonable probability

that the outcome would have been different. Wallace I, slip op. at 8.

       In this second coram-nobis petition, Wallace asserts as grounds for the writ that Kevin

Brown confessed to Wallace’s former attorney, John W. Hall, that he (Brown), Bryan Salley,

and Sam Thomas actually murdered Petties. Wallace alleges that Hall did not turn over

Brown’s statement to him until after 2010 and that Kevin Brown was not available to testify
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at his trial and could not have been discovered earlier. Wallace states that Brown admitted

to him that he had given a false statement against Wallace in exchange for a twenty-five-year

sentence in another case and that Brown apologized to him for being untruthful. He argues

that, if he had known of Brown’s statement, he would have had a credible defense. He argues

that Hall’s conduct amounted to ineffective assistance of counsel. As support for the assertion

that Brown admitted to giving a false statement, Wallace has appended Brown’s affidavit to

his petition in which Brown states that, when “Sambo” Thomas was asked if Thomas knew

where the body was, Thomas said it was down by the river, but that he (Brown) told an

investigator for the public defender that he “didn’t know nothing.”

       We first note that Wallace’s claim that he was denied effective assistance of counsel is

not a ground for the writ. This court has repeatedly held that ineffective-assistance-of-counsel

claims are not cognizable in error-coram-nobis proceedings and that such proceedings are not

a substitute for raising ineffective-assistance-of-counsel claims under Rule 37.1. White v.

State, 2015 Ark. 151, at 4–5, 460 S.W.3d 285, 288.

       With respect to the affidavits that Wallace has appended to this petition for coram-

nobis relief, the first is signed by Johnny Brown, who states that he is also known as Blue Boy,

and is dated November 17, 2009. In it, Brown avers that Sambo was involved in the murder

and that he “lied against Reggie” in a deal with the prosecution whereby Sambo would not

be charged in the murder. He further states that Sambo and Bryan killed “Jr. Pettus.” In the

second affidavit, dated January 21, 2006, Brown states that, when the victim was missing,

Tatum had said that Sambo knew where the body was but that he (Brown) had told the

investigator for the public defender that he knew nothing.
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       In the next affidavit, dated June 15, 2010, Kevin Williams states that he witnessed the

murder, having seen Sam Thomas strangling the victim while Bryan Salley kicked him, and

Brown joined in the assault. He also asserts that he remained silent because of ties to the

Thomas family and his practice of not implicating others in crimes.

       In an affidavit dated November 14, 2011, Malik Shakir, who Wallace states in his

petition is also known as Kevin Williams, maintains that Demetrius Spencer told him that

Spencer had the victim killed by Salley, Brown, and Sambo. Shakir further avers that Sally

told him that Brown had entered into a plea bargain with the State in another criminal case

in exchange for his statement against Wallace.

       Wallace points to Hakim Malik’s affidavit2 as proof that he (Wallace) did not commit

the murder. He argues that all the affidavits he has appended to the petition constitute newly

discovered evidence of his innocence and are grounds for a writ of error coram nobis. Wallace

argues that Brown’s affidavit amounts to a “third-party confession” that Brown, Salley, and

Thomas murdered the victim. He further contends that Brown’s admission concerning

entering into a plea bargain demonstrates the State’s participation in obtaining false testimony

against him.

       Wallace has not stated cause to reinvest jurisdiction in the trial court to consider his

coram-nobis petition. With respect to the affidavits that Wallace contends are either third-

party confessions or demonstrate his innocence, the affidavits, at most, raise questions of

credibility concerning Sam Thomas’s trial testimony. Moreover, we have limited claims of



       2
           In the affidavit, Hakim Malik states that he is also known as “Kevin Williams.”
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third-party confessions to the period before affirmance of the judgment of conviction. While

there are circumstances in which a petition to reinvest the trial court with jurisdiction to hear

a petition for writ of error coram nobis can be considered timely if filed after affirmance of a

judgment, such as prosecutorial misconduct in concealing exculpatory evidence from the

defense, the questions of fact, which invariably accompany an allegation of a third-party

confession, demand prompt scrutiny. Brown v. State, 330 Ark. 627, 630, 955 S.W.2d 901, 902

(1997). The mere fact that another person has confessed to a crime cannot, alone, be grounds

for relief as such confessions are not uncommon and must be approached with some

skepticism.   Id.   The trial court must carefully scrutinize the complete circumstances

surrounding the confession and all the available evidence. Assessing the merits of a third-party

confession requires that all of the evidence be available and unimpaired by the passage of time

so that the trial court’s examination can be exhaustive and decisive. Our requirement that a

claim of a third-party confession must be raised before affirmance serves to limit such claims

to the time frame in which it is most likely that the trial court can determine with certainty

whether the writ should issue. Id. Assertions of a third-party confession after a judgment is

affirmed may be addressed to the executive branch in a clemency proceeding. Penn v. State,

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

       As to Wallace’s allegation that the contents of the affidavits amounted to newly

discovered evidence that constitutes a ground for the writ, it is well settled that an allegation

of newly discovered evidence in itself is not a basis for coram-nobis relief. Thompson v. State,

2012 Ark. 339, at 4 (per curiam). There is a distinction between fundamental error that

requires issuance of the writ and newly discovered information that might have created an
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issue to be raised at trial had it been known. Mosley v. State, 333 Ark. 273, 968 S.W.2d 612

(1998) (per curiam). Wallace has not shown that there is newly discovered evidence that

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

the entry of the judgment. As a result, he has established no ground to issue a writ of error

coram nobis.

       Intertwined in Wallace’s claims concerning the affidavits is the allegation that the acts

of his accomplices, rather than any act by him that was proved at trial, caused the victim’s

death. The claim is a claim that the evidence was not sufficient to sustain the judgment of

conviction. We have held that issues concerning the sufficiency of the evidence are not

cognizable in coram-nobis proceedings. Philyaw v. State, 2014 Ark. 130 (per curiam). The

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

appeal. Id.; Sims v. State, 2012 Ark. 458 (per curiam).

       Wallace next argues that he was denied due process of law because the testimony of

the witnesses at his trial did not establish that any overt act by him killed the victim. He

contends that the prosecution for that reason should not have charged him with first-degree

murder.    He also contends that he was denied equal protection of law because his

codefendants were charged with second-degree murder and have since been released on

parole. As with the prior claim, the issues are not cognizable in a coram-nobis proceeding.

The arguments could have been raised and settled at trial. As such, the issues are not

cognizable as a ground for relief in a coram-nobis proceeding. Howard, 2012 Ark. 177, 403

S.W.3d 38. Even constitutional issues such as due-process and equal-protection claims that


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could have been addressed at trial are not within the purview of the writ.3 See Watts v. State,

2013 Ark. 485, at 7 (per curiam).

        At the close of his petition, Wallace asks that he now be allowed to enter an Alford

plea4 on the ground that the evidence shows that he was not the person who committed the

murder. A coram-nobis proceeding, however, does not provide a means to enter a plea of

guilty after conviction.

        Wallace also asserts that, based on the evidence, he is innocent of the offense. The

claim of actual innocence, as asserted by Wallace, amounts to a challenge to the sufficiency

of the evidence and a direct attack on the judgment below. As stated, we do not permit a

petitioner to challenge the sufficiency of the evidence at trial in a proceeding for a writ of

coram nobis. See Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990) (Claims of false or

misleading testimony by witnesses at trial did not fit within the scope of a coram-nobis

proceeding.).

        In the motion to amend his petition, which we treat as an amended petition, Wallace

repeats several of the claims in the petition concerning alleged false testimony and the lack of

        3
         The due-process claim that the State withheld exculpatory evidence from the defense
in violation of Brady is cognizable in a coram-nobis proceeding inasmuch as the claim is not one
that could have been raised at trial. See, e. g., Sanders v. State, 374 Ark. 70, 285 S.W.3d 630 (2008)
(holding that a petitioner’s due-process claim of a Brady violation at trial, i.e., that the prosecution
wrongfully withheld impeachment evidence of a deal between the prosecution and a trial
witness, was a claim for which a writ of error coram nobis was available).
        4
        Under North Carolina v. Alford, 460 U.S. 25 (1970), a court may accept a guilty plea from
a defendant who maintains his innocence, provided the court finds an adequate factual basis for
the plea of guilty. Typically, a defendant will utilize an Alford plea when he intelligently
concludes that his interests require entry of a guilty plea in light of the evidence of actual guilt
with the intention of limiting the penalty to be imposed. See Davis v. State, 366 Ark. 401, 235
S.W.3d 902 (2006).
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credibility of witnesses for the prosecution. He further alleges again that the prosecution’s use

of false testimony amounted to prosecutorial misconduct. Wallace also reiterates his assertion

that Kevin Brown has confessed to the crime and that the evidence he appended to his

petition constitutes newly discovered evidence. The claims were raised in the original

petition, albeit in somewhat different language, and have already been fully addressed.

Wallace has not stated a ground for relief.

       Petition denied; motion to amend treated as amended petition and denied; motion for

hearing moot.




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