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                   SUPREME COURT OF ARKANSAS.
                                        No.   CR-11-1209


                                                  Opinion Delivered March   3, 2016
BRIAN JORDAN
                               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
                             [BENTON COUNTY CIRCUIT
                             COURT, NO. 04CR-10-1004]

                                                  PETITION DENIED.

                                        PER CURIAM


        On February 27, 2010, the Benton County Sheriff’s Office received a call that a

 seventy-five-year-old woman had been sexually assaulted in her home.                 The victim

 identified Brian Jordan, a former neighbor who had recently begun visiting her, as her

 attacker. In 2011, Jordan was found guilty by a jury of raping the victim and was sentenced

 as a habitual offender to life imprisonment. We affirmed. Jordan v. State, 2012 Ark. 277,

 412 S.W.2d 150.

        Jordan subsequently filed in the trial court a petition for postconviction relief pursuant

 to Arkansas Rule of Criminal Procedure 37.1 (2011) in which he contended that he was

 denied effective assistance of counsel because his trial attorney did not introduce certain

 evidence at trial and raise arguments related to the evidence to support his defense that the

 victim had offered him money in exchange for sex. The trial court denied the relief sought

 under Rule 37.1. This court affirmed the order. Jordan v. State, 2013 Ark. 469 (per curiam).
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       Now before us is Jordan’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

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

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

of law pursuant to Brady v. Maryland, 373 U.S. 83 (1963) by concealing information from

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the defense. A review of the Brady claim suggests that Jordan has misconstrued the nature

of a Brady violation and the purpose of a coram-nobis proceeding.

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

wrongfully withheld by the State. Isom v. State, 2015 Ark. 225, 462 S.W.3d 662. 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)). To determine

whether the proposed attack on the judgment is meritorious so as to warrant the granting

of permission to reinvest jurisdiction in the trial court to pursue a writ of error coram nobis,

this court looks to the reasonableness of the allegations of the petition and to the existence

of the probability of the truth of those claims. Isom, 2015 Ark. 225, 462 S.W.3d 662.

       Jordan alleges that there was criminal wrongdoing in the form of witness tampering,

witness intimidation, witness bribery, and false swearing committed by the two officers who

investigated his case, the prosecutor, a deputy prosecutor, and the rape victim. He bases his

claims on letters that he had written to the prosecutor and the circuit judge in which he

alleged the wrong doing and called for those persons to be criminally prosecuted. He further

relies on information contained in pro se pleadings that he had filed in the trial court in

which he pointed out inconsistencies in testimony, questioned the reliability of the evidence

adduced at trial, and argued that crimes had been committed in order to obtain his

conviction.

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       In addition to asserting that the persons committed crimes to obtain his conviction,

Jordan has also appended to his petition the affidavit of Cleo Horton, which states that

Horton was coerced by investigators into changing his pretrial statement to be less favorable

to Jordan and that these same investigators suppressed a letter Horton wrote in 2010, asking

about promises made by police of favorable treatment to Horton.

       The request to reinvest jurisdiction in the trial court is denied. We first note that, in

his Rule 37.1 proceeding, Jordan raised claims pertaining to the same allegedly false

statements by investigators that were incorporated in a police report with regard to the

interrogation of Cleo Horton; claims of police intimidation which allegedly coerced Horton

into recanting his statement that the victim had offered him money in exchange for sex on

several occasions; a letter allegedly written by Horton in September 2010 in which Horton

confessed to being untruthful when he recanted his statement, along with the explanation

that he had lied to cover up his participation in robbing the victim on the same night that

the rape occurred and because he was promised probation; grievances authored by Jordan,

which complained that police had assaulted him in an attempt to force him to confess to

committing the rape and to writing the Horton letter; and an email sent by the victim that

Jordan claimed evinced the family relationship between an investigator and the victim. As

stated, the trial court found no merit to Jordan’s arguments, and we affirmed the trial court’s

decision. Jordan makes many of the allegations in this coram-nobis petition that were

addressed in the Rule 37.1 proceeding, but those assertions are now couched as Brady

violations.




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       The documents submitted by Jordan in the Rule 37.1 proceeding included an

“Affidavit of Probable Cause to Obtain an Arrest Warrant” in which Investigator Kenneth

Paul of the Benton County Sheriff’s Office attested that, on February 27, 2010, the sheriff’s

office began an investigation into the rape of the victim that led to the arrest of Jordan.

Investigator Paul further attested that on May 28, 2010, Jordan, while an inmate in the

Benton County jail, gave investigators the name of fellow inmate Cleo Horton as a witness

to the victim’s offer of money in exchange for sex. During the interview, Horton told

Investigator Paul that the victim had been known to offer money in exchange for sex.

According to the affidavit, Investigator Paul continued the interview and then turned off

the audio recording in preparation of taking Horton back to jail. After determining that

Horton’s narrative was strikingly similar to Jordan’s statement, Investigator Paul told Horton

that he would be charged if it was determined that he was being untruthful and that this

was his opportunity to tell the truth. According to Investigator Paul, Horton then stated

that he had made up the story because Jordan told him that, if he could get Jordan out of

jail, Jordan would post his bond. Horton stated that Jordan had told him that the victim

had never offered sex to anyone, and he apologized for lying. According to the affidavit,

Horton stated that Jordan had asked him to lie “to try to cover up what he did.” Jordan

also included several incident reports prepared by the sheriff’s office in the documents

submitted in support of his Rule 37.1 petition and an amendment to the petition. One

report referred to a September 2010 letter received by the prosecuting attorney’s office

allegedly written by Horton. The letter stated that Horton had lied when he recanted his

statement in the May interview in order to cover up his participation in the robbery of the

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victim and because he was promised probation by Investigator Paul. In the letter, Horton’s

name was spelled incorrectly. Investigators then interviewed Horton, who stated that he

did not write the letter. Jordan also included two affidavits, dated August 24 and 25, 2011,

allegedly prepared by Horton. In one affidavit, the affiant stated that investigators coerced

him into recanting his May statement that the victim had offered him money in exchange

for sex. In a second affidavit, the affiant stated that investigators coerced him into denying

that he wrote the September 2010 letter. Finally, the documents included an email sent by

the victim, as well as grievances submitted by Jordan in which he stated that he had been

attacked by a member of law enforcement while he was in jail.

       It is clear from the allegations raised under Rule 37.1 that Jordan was well aware of

the circumstances concerning Horton’s statement. He has not demonstrated that Horton’s

pretrial statement was not available to the defense or that Horton could not have been

examined by defense counsel at trial concerning the veracity of the statement and any other

circumstances pertaining to his giving the statement. To the extent that Jordan intended

his allegation to be that Horton recanted his statement, recanting a previous statement is not

grounds for a writ of error coram nobis. See Thomas v. State, 367 Ark. 478, 482, 241 S.W.3d

247, 250 (2006) (per curiam).

       With respect to the remaining assertions in the request to reinvest jurisdiction in the

trial court, Jordan has not demonstrated that any material evidence was withheld by the

State. Instead, he has mounted a thinly disguised attack on the sufficiency of the evidence

to sustain the judgment of conviction based primarily on the contents of his own letters and

pleadings filed in the trial court. The sufficiency of the evidence is not an issue cognizable

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in coram-nobis proceedings. Ventress v. State, 2015 Ark. 181, at 6 (per curiam). Whether

the evidence supports the judgment is a question to be addressed at trial, and coram nobis

does not provide a second opportunity to challenge the evidence. See Bond v. State, 2015

Ark. 470 (per curiam).

       Because Jordan has presented no facts sufficient to demonstrate that there was

information not known at the time of trial, or which could not have been known at the

time of trial, that was concealed by the State, he has failed to establish good cause for the

writ. The application for coram-nobis relief must make a full disclosure of the specific facts

relied on inasmuch as statements that are not supported by facts are not sufficient to warrant

granting the writ. Noble v. State, 2015 Ark. 215, at 3, 462 S.W.3d 341, 344 (per curiam).

Jordan’s allegations do not establish that there was some material evidence withheld that

would have prevented rendition of the judgment had it been known at the time of trial.

See Isom, 2015 Ark. 225, 462 S.W.3d 662.

       Petition denied.




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