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                    SUPREME COURT OF ARKANSAS.
                                        No.   CR-14-1088


FRED L. WILLIAMS                                  Opinion Delivered April   20, 2017
                               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
                              [DREW COUNTY CIRCUIT
                              COURT, NO. 22CR-13-43]

                                                  PETITION DENIED.


                                         PER CURIAM

        In 2014, petitioner Fred L. Williams was found guilty of murder in the first degree

 and abuse of a corpse for which an aggregate sentence of life imprisonment was imposed.

 Williams was sentenced as a habitual offender. We affirmed. Williams v. State, 2015 Ark.

 316, 468 S.W.3d 776, reh’g denied (Oct. 29, 2015).

        Now before us is Williams’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
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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 had it 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, Williams asserts that the State suppressed exculpatory

evidence. The wrongful withholding of material exculpatory evidence from the defense is

a violation of Brady v. Maryland, 373 U.S. 83 (1963), and a ground for granting the writ.

Hooper v. State, 2015 Ark. 108, 458 S.W.3d 229 (per curiam). The United States Supreme

Court held in Brady that “the suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is material to guilt or

punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S.

at 87. In Strickler v. Greene, 527 U.S. 263 (1999), the Court revisited Brady and declared

that evidence is material “if there is a reasonable probability that, had the evidence been

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disclosed to the defense, the result of the proceeding would have been different.” 527 U.S.

at 280 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). There are three elements

of a 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; (3) prejudice must have ensued. Strickler, 527

U.S. 263; Watts v. State, 2013 Ark. 485 (per curiam).

       To assess Williams’s assertion of a Brady violation, it is necessary to summarize the

evidence adduced at trial that resulted in Williams’s conviction for first-degree murder and

abuse of a corpse. On April 5, 2013, Tangela Walton was observed in what appeared to be

an argument with someone on her cell phone. Walton was subsequently reported missing,

and police questioned Williams, her sometimes boyfriend, who denied any knowledge of

her whereabouts. After having obtained Walton’s cell-phone records, the police again

questioned Williams, who denied that he had argued with Walton. On April 14, 2013,

Williams appeared with counsel at the police station to give another statement. When the

investigating officer arrived to question Williams, Williams was on the floor; he was

transported to the hospital because it was reported that he had experienced a seizure. While

in the emergency room, Williams admitted that he knew where Walton’s body was buried.

In an interview the next day, Williams stated that Walton had called him on the morning

of April 5, 2013, to ask if he would like to have sex. He agreed, picked her up, and the

two went to Williams’s home where they engaged in “kinky” sex that included tying

Walton up and placing a plastic bag over her head. Williams stated further that the two

were engaging in sex for the second time when he had a seizure and “fell out” on Walton

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and smothered her to death. When he was unable to revive her, Williams threw away the

plastic bag and the necktie that had been used to bind her hands and buried her in a shallow

grave.    There was evidence presented at trial that Walton had died of asphyxia by

undetermined means.

         On direct appeal, Williams contended that the trial court erred by not granting his

motion for directed verdict because, while the evidence was sufficient to show that Walton

died in his home, the evidence was not sufficient to show that Williams purposely caused

her death. He argued that the evidence adduced was circumstantial and forced the jury to

resort to speculation when it found the requisite intent to convict him of first-degree

murder. He also asserted that his actions when he disposed of Walton’s body did not fall

within the offense of abuse of a corpse. This court concluded that there was evidence

adduced at trial that satisfied the elements of both first-degree murder and abuse of a corpse.

We also noted that it was the jury’s task to determine the credibility of the witnesses and to

resolve any inconsistent evidence. Williams, 2015 Ark. 316, at 10, 468 S.W.3d 776, 781.

         Williams enumerates several alleged “Brady omissions” that pertain to State’s Exhibit

3, the victim’s cell phone records. He contends that information contained in the exhibit

was omitted from the affidavit in support of the search warrant of his residence and the arrest

report; the police investigator failed to acknowledge that the police had the records on April

9, 2013, in the “report to the affiant, magistrate,” and the investigating officer failed to

acknowledge a “second party having communication” with Walton on April 5, 2013; the

phone records in State’s Exhibit 3 are “missing or suppressed”; cell-phone records in State’s

Exhibit 3 would have corroborated Williams’s claim that he was not the person in a heated

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argument with Walton on April 5, 2013, and information about the unknown caller was

suppressed in the argument to the jury; the correlation of other evidence that was suppressed

in State’s Exhibit 3 could have supported the medical testimony concerning the time of

death; the assertions of the State concerning the information contained in the exhibit were

misleading because the contents of the exhibit indicated that there were questions raised by

the information that were never made plain to the jury. Williams has not established a Brady

violation.

       Williams has offered no support for the claim that any of the information contained

in State’s Exhibit 3 could not have been known to the defense prior to trial or that it was

somehow concealed from the defense. Moreover, he has offered no factual substantiation

that the State had hidden any specific, particular evidence from the defense at the time of

trial. Conclusory claims concerning evidence omitted from the record are deficient as a

basis for coram nobis relief and do not establish that there is a reasonable probability that the

outcome of the proceeding would have been different if the State had disclosed any

particular evidence to the defense. Carter v. State, 2016 Ark. 378, at 7, 501 S.W.3d 375,

380-81 (per curiam); see also Strickler, 527 U.S. 263, 280; Lacy v. State, 2010 Ark. 388, 377

S.W.3d 227. A coram nobis proceeding is not a means merely to contradict a fact already

adjudicated in the trial court. See Stenhouse v. State, 2016 Ark. 295, 497 S.W.3d 679 (per

curiam), cert. denied, No. 16-7180 (U.S. Jan. 23, 2017).

       It appears that Williams’s allegations concerning State’s Exhibit 3 rest primarily on

the contention that the information contained in the exhibit was not utilized in the way

most favorable to the defense. Also, even if the information in the exhibit was not known

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to the defense prior to trial, Williams has not established that there is a reasonable probability

that any of the information he cites in his petition would have resulted in a different

outcome of the trial had it been known. When the petitioner does not demonstrate that

there was information that would somehow have created an issue sufficient to affect the

outcome of the trial and preclude the entry of the judgment, the petitioner has not

established a ground to issue a writ of error coram nobis. Wallace v. State, 2015 Ark. 349,

at 11, 471 S.W.3d 192, 199 (per curiam).

       Williams also argues that the writ should issue on the following grounds: that a State’s

witness, Varetta Butcher, reported to the police that she overheard a heated argument

between Walton and a party on the telephone, but the State never produced Butcher’s

statement, which would have aided the defense in pointing out errors in the “affidavit

pretrial”; that Butcher contradicted the police officer’s statement in an affidavit, but

Butcher’s statement never surfaced at trial, and thus her contradictory statements were not

revealed to the jury; that Butcher’s testimony was belied by the information contained in

State’s Exhibit 3, and the police officers embellished their statements to prejudice Williams;

that DNA taken from material under Walton’s fingernails belonged to a second individual

and did not come from Williams; that the autopsy report provided that Walton’s injuries

showed signs of healing, but the point was suppressed at trial even though it could have

provided an alibi for Williams; that the defense story of intimacy was unfairly disclaimed,

and the jury’s verdict was derived from perjury, fabrication, and prosecutorial misconduct.

       The assertions do not demonstrate a Brady violation; rather, they amount to claims

of trial error and seek to question the sufficiency of the evidence. To the extent that

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Williams intended the claims to call into question the sufficiency of the evidence, we have

repeatedly held that such a claim is a direct attack on the judgment and is not cognizable in

coram nobis proceedings. Rice v. State, 2016 Ark. 27, at 4, 479 S.W.3d 555, 558 (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). With respect to

allegations of trial error, allegations of trial error are outside the scope of a coram nobis

proceeding. Rhoades v. State, 2015 Ark. 54, at 5, 455 S.W.3d 291, 294 (per curiam). This

court does not consider allegations in a coram nobis action that are an attempt to argue

issues that were, or could have been, addressed at trial or on direct appeal. See Ventress v.

State, 2015 Ark. 181, 461 S.W.3d 313 (per curiam). Allegations of trial error, even those

of constitutional dimension, do not provide a ground to grant a writ of error coram nobis.

Bean v. State, 2015 Ark. 136 (per curiam).

       Finally, Williams makes several references to the failure of his attorney to investigate

evidence and counsel’s failure to bring out information that would have been favorable to

the defense. He has not stated a ground for the writ because a coram nobis proceeding does

not provide a means to challenge the effectiveness of counsel. Ineffective-assistance-of-

counsel claims are outside the purview of error coram nobis proceedings and such

proceedings are not a substitute for raising ineffective-assistance-of-counsel claims under our

postconviction rule, Arkansas Rule of Criminal Procedure 37.1. White v. State, 2015 Ark.

151, at 4–5, 460 S.W.3d 285, 288.

       Petition denied.




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