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                   SUPREME COURT OF ARKANSAS
                                          No.   CR-07-110

KENNETH RAY PITTS                                    Opinion Delivered March   20, 2014
                                PETITIONER
                                                     PRO SE PETITION TO REINVEST
V.                                                   JURISDICTION IN THE CIRCUIT
                                                     COURT TO CONSIDER A PETITION
                                                     FOR WRIT OF ERROR CORAM NOBIS
STATE OF ARKANSAS                                    AND MOTION FOR APPOINTMENT
                              RESPONDENT             OF COUNSEL [PULASKI COUNTY
                                                     CIRCUIT COURT, NO. 60CR-05-4343]

                                                     PETITION AND MOTION DENIED.


                                          PER CURIAM


       In 2006, appellant Kenneth Ray Pitts was found guilty by a jury in the Pulaski County

Circuit Court of second-degree sexual assault and sexual indecency with a child. He was

sentenced as a habitual offender to consecutive sentences of 720 months’ imprisonment for the

charge of second-degree sexual assault and 180 months’ imprisonment for the charge of sexual

indecency with a child. The Arkansas Court of Appeals affirmed. Pitts v. State, CR-07-110 (Ark.

App. Oct. 31, 2007) (unpublished) (original docket no. CACR 07-110).

       Now before us is petitioner’s pro se petition to reinvest jurisdiction in the circuit court

to consider a petition for writ of error coram nobis,1 as well as his pro se motion to appoint

counsel. A petition for leave to proceed in the circuit 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. Cromeans v. State, 2013 Ark. 273 (per curiam) (citing

       1
       The petition is assigned the same docket number as the direct appeal from the judgment
of conviction.
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Sparks v. State, 2012 Ark. 464 (per curiam)); Grant v. State, 2010 Ark. 286, 365 S.W.3d 849 (per

curiam) (citing Newman v. State, 2009 Ark. 539, 354 S.W.3d 61).

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

than its approval. Cromeans, 2013 Ark. 273 (citing Howard v. State, 2012 Ark. 177, 403 S.W.3d

38). Coram-nobis proceedings are attended by a strong presumption that the judgment of

conviction is valid. Greene v. State, 2013 Ark. 251 (per curiam) (citing Newman, 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

circuit 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. Williams v. State, 2011 Ark. 541 (per curiam).

       The writ is allowed only under compelling circumstances to achieve justice and to address

errors of the most fundamental nature. Cromeans, 2013 Ark. 273 (citing McDaniels v. State, 2012

Ark. 465 (per curiam)). We have held that a writ of error coram nobis is available to address

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. Greene, 2013 Ark. 251.

       As grounds for the writ, petitioner first asserts in a conclusory fashion that the circuit

court acted without jurisdiction. While jurisdictional issues do not fall within one of the four

categories for issuance of a writ, a question of a circuit court’s jurisdiction over a defendant is

always open and is not one that may be waived by either party. See Reed v. State, 2011 Ark. 115



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(per curiam). Nevertheless, this court will not consider wholly conclusory allegations, as

presented by petitioner in the instant case, with no factual substantiation or supporting authority.

See Lacy v. State, 2010 Ark. 388, 377 S.W.3d 227. Conclusory statements cannot be the basis of

postconviction relief. Anderson v. State, 2011 Ark. 488, 385 S.W.3d 783.

       Petitioner next argues that a writ is warranted because material evidence was withheld by

the prosecutor. Failure to disclose evidence to the defense is a violation of Brady v. Maryland, 373

U.S. 83 (1963) and such an allegation falls within one of the four categories of coram-nobis

relief. Bannister v. State, 2014 Ark. 59 (per curiam). The 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 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).

       The allegations advanced by petitioner regarding a Brady violation are conclusory and are

not substantiated by any factual support. 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 (per curiam).



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The burden is on the petitioner to show that the writ is warranted, and a bare assertion with no

factual support does not justify reinvesting jurisdiction in the circuit court to consider a petition

for writ of error coram nobis. Id. In an apparent attempt to support his claim that evidence was

withheld by the prosecutor, petitioner appended to his petition a transcript of a pretrial hearing

in which counsel and the court discussed discovery motions; however, the transcript does not

indicate that the prosecutor withheld or refused to disclose any evidence to the defense.

Moreover, it is unclear from the petition what specific evidence petitioner contends was

withheld by the prosecutor;2 nor does petitioner demonstrate the exculpatory nature of any

allegedly withheld evidence or that prejudice ensued. Jurisdiction will not be reinvested in the

circuit court for the purpose of allowing a petitioner to conduct a fishing expedition. See Echols

v. State, 354 Ark. 414, 125 S.W.3d 153 (2003).

       Finally, although there is no specific time limit for seeking a writ of error coram nobis,

due diligence is required in making an application for relief. McClure v. State, 2013 Ark. 306 (per

curiam). In the absence of valid delay, the petition will be denied. Roberts v. State, 2013 Ark. 56,

___ S.W.3d ___. Due diligence requires that (1) the defendant be unaware of the fact at the

time of the trial; (2) the defendant could not have, in the exercise of due diligence, presented the

fact at trial; and (3) the defendant, after discovering the fact, did not delay in bringing the



       2
        Petitioner states in the petition that “he never received these discoveries [sic] . . . until
several months after” his appeal, and he cites to a number of exhibits attached to the petition.
The attached exhibits include the arrest warrant and petitioner’s arrest record; Arkansas State
Police victim, witness, and suspect interviews, as well as an Investigation Form; a witness list
naming the victim, her mother, petitioner, the examining physician of the victim, and officers
involved in the investigation of the case; the Department of Human Services case file; Child
Suspected Sexual Abuse Medical Record; and petitioner’s forensic evaluation.

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petition. Id. The requirements are a sequence of events, each of which a petitioner must show

to prove due diligence. Anderson v. State, 2012 Ark. 270, ___ S.W.3d ___. Here, petitioner

waited approximately seven years after the judgment of conviction before petitioning this court

for relief. Even if petitioner had presented grounds sufficient to support issuance of the writ,

his failure to act with due diligence, alone, would constitute good cause to the deny the petition.3

       Petition and motion denied.

       BAKER and HART, JJ., dissent.

       JOSEPHINE LINKER HART, Justice, dissenting. For the reasons stated in Philyaw v.

State, 2014 Ark. 130, handed down this same day, I respectfully dissent.

       BAKER, J., joins in this dissent.

       Kenneth Ray Pitts, pro se petitioner.

       Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.




       3
           For response to dissent, see Philyaw v. State, ___ Ark. ___, ___ S.W.3d ___ (per curiam).

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