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                 SUPREME COURT OF ARKANSAS
                                         No.   CR-02-228
                                                    Opinion Delivered   May 22, 2014


JAMES E. SMITH                                      PRO SE SECOND PETITION TO
                               PETITIONER           REINVEST JURISDICTION IN THE
                                                    CIRCUIT COURT TO CONSIDER A
v.                                                  PETITION FOR WRIT OF ERROR
                                                    CORAM NOBIS
STATE OF ARKANSAS                                   [JEFFERSON COUNTY CIRCUIT
                             RESPONDENT             COUNTY, NO. 35CR-99-724]



                                                    PETITION DISMISSED.


                                        PER CURIAM

       In 2001, petitioner James E. Smith was found guilty by a jury of two counts of rape for

engaging in sexual intercourse with his girlfriend’s daughters when they were both under the age

of fourteen. Petitioner had taken the stand at trial and admitted that he had sex with the victims,

but he contended that they were eighteen and twenty years old when the acts occurred and that

both had consented. Petitioner was sentenced to a term of twenty years’ imprisonment for each

count to be served consecutively. The Arkansas Court of Appeals affirmed. Smith v. State, CR-

02-228 (Ark. App. Jan. 8, 2003) (unpublished) (original docket no. CACR 02-228).

       After the judgment was affirmed, petitioner sought postconviction relief in the trial court

in a petition pursuant to Arkansas Rule of Criminal Procedure 37.1 (2001). The petition was

denied, and we affirmed the order. Smith v. State, CR-05-294 (Ark. Feb. 23, 2006) (unpublished

per curiam).

       In 2012, petitioner filed in this court a pro se petition approximately 200 pages in length
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to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis.1

The petition was denied. Smith v. State, 2012 Ark. 403 (per curiam).

       Now before us is petitioner’s second petition to reinvest jurisdiction in the trial court to

consider a petition for writ of error coram nobis, which is also approximately 200 pages in

length. In the petition, petitioner again repeats the claims for relief alleged in the first petition,

albeit in somewhat different language, pertaining to inconsistent statements made by the victims.

The State has filed a response in which it urges this court to deny relief on the basis that the

second petition constitutes an abuse of the writ in that it reiterates claims already settled when

this court denied the first petition.

       We first note that a petition for leave to proceed in the trial court is necessary because

the circuit court can entertain a petition for writ of error coram nobis after a judgment has been

affirmed on appeal only after we grant permission. Henderson v. State, 2014 Ark. 180 (per curiam);

Cloird v. State, 2011 Ark. 303 (per curiam).

       A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial

than its approval. Pitts v. State, 2014 Ark. 132 (per curiam); Martin v. State, 2012 Ark. 44 (per

curiam). 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 circuit

court and which, through no negligence or fault of the defendant, was not brought forward

before rendition of judgment. Camp v. State, 2012 Ark. 226 (per curiam). To warrant a writ of

error coram nobis, a petitioner has the burden of bringing forth some fact, extrinsic to the

       1
        The petition was assigned the docket number for the direct appeal of the judgment of
conviction.

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record, that was not known at the time of trial. Cloird, 2011 Ark. 303. Coram-nobis proceedings

are attended by a strong presumption that the judgment of conviction is valid. Cherry v. State,

2014 Ark. 81 (per curiam).

       In the instant petition, petitioner raises some claims of trial error and argues that the

evidence was insufficient to sustain the judgment, but the allegations primarily pertain to

petitioner’s claim that the victims were not truthful in their testimony at trial and in their

statements to the police and that the inconsistencies in the victims’ statements prove that he was

innocent. He also contends, as he did in the original petition, that the prosecution withheld the

statements of the victims from the defense in violation of Brady v. Maryland, 373 U.S. 83 (1963),

thereby denying the defense the opportunity to compare the statements with the police report

concerning the offenses. Petitioner asserted in his first petition that he lied when he told the

police, and later testified, that he had consensual sex with the victims after they had turned

eighteen to hurt their mother. In the instant petition, he argues that he was actually innocent.

Petitioner does not focus, as he did in the first petition, on the claim that the victims were not

under the age of fourteen when the offenses occurred and that his sexual conduct with the

victims occurred after their eighteenth birthdays. Instead, he contends that the victims were

untruthful. The same hand-written statements by the victims that were appended to the first

coram-nobis petition are appended to this latest petition.

       As with the original petition, petitioner has not stated a ground for the writ. This court

has previously recognized that a writ of error coram nobis was available to address errors found

in only four categories: insanity at the time of trial, a coerced guilty plea, material evidence



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withheld by the prosecutor, or a third-party confession to the crime during the time between

conviction and appeal. Philyaw v. State, 2014 Ark. 130 (per curiam); Camp, 2012 Ark. 226.

Allegations of a Brady violation fall within one of the four categories of error that this court has

recognized. Camp, 2012 Ark. 226; Hogue v. State, 2011 Ark. 496 (per curiam). The fact that a

petitioner alleges a Brady violation alone is not sufficient to provide a basis for error-coram-nobis

relief.    Camp, 2012 Ark. 226.      Assuming that the alleged withheld evidence meets the

requirements of a Brady violation and is both material and prejudicial, in order to justify issuance

of the writ, the withheld material evidence must also be such as to have prevented rendition of

the judgment had it been known at the time of trial. Id. To merit relief, a petitioner must

demonstrate that there is a reasonable probability that the judgment of conviction would not

have been rendered, or would have been prevented, had the information been disclosed at trial.

Id. It is a petitioner’s burden to show that the writ is warranted. Scott v. State, 2009 Ark. 437 (per

curiam). This court will grant permission for a petitioner to proceed with a petition for writ of

error coram nobis only when it appears that the proposed attack on the judgment is meritorious.

Hogue, 2011 Ark. 496. We are not required to accept the allegations in a petition for writ of error

coram nobis at face value. Charland v. State, 2013 Ark. 452; Goff v. State, 2012 Ark. 68, 398

S.W.3d 896 (per curiam).

          The evidence contemplated in Brady is “evidence material either to guilt or punishment.”

373 U.S. at 87. The Court later defined the test for material evidence in the context of a Brady

violation as being “whether there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would be different.” Strickler v. Greene, 527



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U.S. 263, 280 (1999); see also Lacy v. State, 2010 Ark. 388, 377 S.W.3d 227. To establish a Brady

violation, three elements are required: (1) the evidence at issue must be favorable to the accused,

either because it is exculpatory or because it is impeaching; (2) that evidence must have been

suppressed by the State, either willfully or inadvertently; (3) prejudice must have ensued.

Larimore v. State, 341 Ark. 397, 404, 17 S.W.3d 87, 91 (2000); see Lee v. State, 340 Ark. 504, 11

S.W.3d 553 (2000). This court has recognized that the withholding by the prosecution of

material evidence is a ground for reinvesting jurisdiction in the trial court to consider a writ of

error coram nobis. See Buckley v. State, 2010 Ark. 154, at 1 (per curiam).

       The crux of petitioner’s argument is that the victims gave inconsistent statements that

would have cast doubt in the minds of the jurors as to whether he had engaged in sexual

relations with the victims. The evidence adduced at trial against petitioner was overwhelming.

Both victims testified that petitioner had sexual intercourse with them frequently when they were

in elementary school, below the ages of twelve. Petitioner conceded in cross-examination at trial

that he had engaged in sexual relations with the victims but only after each one seduced him

within a two-week period when they were adults over the age of eighteen. It was the jury’s task

to assess the credibility of the witnesses. See Laswell v. State, 2012 Ark. 201, 404 S.W.3d 818. The

significance of the inconsistent statements that petitioner alleges were hidden from the defense

must be weighed against the totality of the evidence to determine if the statements at issue would

have prevented rendition of the judgment had the existence of those documents been known

at the time of trial. Goff, 2012 Ark. 68, 398 S.W.3d 896; Sanders v. State, 2011 Ark. 199 (per

curiam). We consider the cumulative effect of the allegedly suppressed evidence to determine



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whether the evidence that was alleged to have been suppressed was material to the guilt or

punishment of the defendant. Goff, 2012 Ark. 68, 398 S.W.3d 896. Here, the victims’ testimony

was sufficient to establish that they had been raped at ages well below fourteen. While petitioner

asserts that there were myriad inconsistencies between the victims’ hand-written statements and

their testimony at trial, petitioner has not shown any specific inconsistency between the

statements and the testimony that was substantial enough to impeach the victims’ testimony that

they had been raped almost daily beginning at a very young age. Petitioner has not demonstrated

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

       As he did in the first petition, petitioner argues throughout his petition that the

inconsistent statements of the victims rendered the evidence insufficient to sustain the judgment.

The issue is not cognizable in a coram-nobis proceeding. Philyaw v. State, 2014 Ark. 130. The

sufficiency of the evidence and the credibility of witnesses are matters to be addressed at trial.

Id.

       The petition before us also contains a number of assertions that amount to allegations

of mere trial error. Such allegations by their very nature constitute issues known at the time of

trial that were addressed, or could have been addressed, at that time. Such claims are not

grounds for the writ. Anderson v. State, 2012 Ark. 270, 423 S.W.3d 20 (per curiam). This applies

even to issues of trial error of constitutional dimension that could have been raised in

the trial court. Travis v. State, 2014 Ark. 87 (per curiam).

       After examining the claims raised in the petition, we conclude that petitioner’s successive

application for coram-nobis relief in this court is an abuse of the writ in that he alleges no fact

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sufficient to distinguish his claims in the instant petition from the claims in the first. He did not

establish in the first petition that there was any basis for the writ, and his reassertion of largely

the same claims in the second petition is a misuse of the remedy. Accordingly, the petition is

dismissed. Rodgers v. State, 2013 Ark. 294 (per curiam) (“[A] court has the discretion to determine

whether the renewal of a petitioner’s application for the writ, when there are additional facts

presented in support of the same grounds, will be permitted.”); Jackson v. State, 2010 Ark. 81 (per

curiam) (citing Jackson v. State, 2009 Ark. 572 (per curiam)); see also United States v. Camacho-Bordes,

94 F.3d 1168 (8th Cir. 1996) (holding that res judicata did not apply to bar a second petition for

writ of error coram nobis, but abuse-of-writ doctrine was applied to subsume res judicata).

        Petition dismissed.

        James E. Smith, pro se petitioner.

        Dustin McDaniel, Att’y Gen., by: David R. Raupp, Sr. Ass’t Att’y Gen., for appellee.




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