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                    SUPREME COURT OF ARKANSAS.
                                        No.   CR-07-681


                                                  Opinion Delivered October   26, 2017
WESLEY JEFFERSON
                               PETITIONER
                              PRO SE PETITION TO REINVEST
V.                            JURISDICTION IN THE TRIAL
                              COURT TO CONSIDER A
                              PETITION FOR WRIT OF ERROR
 STATE OF ARKANSAS            CORAM NOBIS
                              [ST. FRANCIS COUNTY CIRCUIT
                   RESPONDENT COURT, NO. 62CR-05-513]


                                                  PETITION DENIED.


                            SHAWN A. WOMACK, Associate Justice

        Petitioner Wesley Jefferson, who was found guilty by a jury of capital murder and

 other felony offenses, asks this court to reinvest jurisdiction in the trial court to consider a

 petition for writ of error coram nobis. Jefferson asserts that the State violated Brady v.

 Maryland, 373 U.S. 83 (1963), by not revealing to the defense that there was a commentary

 to the capital-murder statute, Arkansas Code Annotated section 5-10-101(a)(1) (Supp.

 2005), that would have supported his argument at trial that his conduct did not satisfy the

 elements of capital murder. He also argues that the evidence adduced at trial was not

 sufficient to sustain the judgment that he committed capital murder. Because Jefferson has

 not stated a ground on which the writ could issue, the petition is denied.

        Jefferson’s petition for leave to proceed in the trial court is necessary because this

 court affirmed the judgment in his case in 2008, Jefferson v. State, 372 Ark. 307, 276 S.W.3d

 214 (2008), and the trial court cannot entertain a petition for writ of error coram nobis after
                                    Cite as 2017 Ark. 293

a judgment has been affirmed on appeal unless we grant permission. Newman v. State, 2009

Ark. 539, 354 S.W.3d 61. 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. Id. 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 making the determination of whether the writ should issue, we look to the

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

truth thereof. Id. A writ of error coram nobis is an extraordinarily rare remedy and there

is a strong presumption that the judgment of conviction is valid. State v. Larimore, 341 Ark.

397, 17 S.W.3d 87 (2000); Westerman v. State, 2015 Ark. 69, at 4, 456 S.W.3d 374, 376.

       With respect to Jefferson’s claim that the evidence was insufficient to sustain the

judgment, an allegation that calls into question the sufficiency of the evidence at trial is a

direct challenge to the judgment that is not cognizable in a coram nobis proceeding. Scott

v. State, 2017 Ark. 199, at 3, 520 S.W.3d 262, 265.




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       Jefferson’s claim of a Brady violation does not establish that the writ should issue

because he fails to satisfy the requirement under Brady that the petitioner establish that the

State wrongfully withheld material evidence from the defense. Isom v. State, 2015 Ark. 225,

462 S.W.3d 662. In Strickler v. Greene, 527 U.S. 263 (1999), the Supreme Court held 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, at 8, 403

S.W.3d 38, 44.

       Jefferson contends the legislative commentary that was withheld by the State was an

important statement of legislative intent and that the State had a duty under Brady to learn

of this commentary and alert his defense to it. He argues that the State’s failure to do so

amounted to the wrongful withholding of material evidence.            Clearly, however, any

published commentary to a statute could have been known at the time of trial and did not

constitute “material evidence” that could have been withheld by the State from the defense

in violation of Brady. Brady does not require the State to conduct legal research and provide

that research to the defense.

       Petition denied.

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