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                    SUPREME COURT OF ARKANSAS.
                                        No.   CR-13-1006

                                                  Opinion Delivered August   3, 2017
ROLANDIS LARENZO CHATMON
                  PETITIONER
                              PRO SE THIRD PETITION AND
                              AMENDED PETITION TO REINVEST
V.
                              JURISDICTION IN THE TRIAL COURT
                              TO CONSIDER A PETITION FOR A
 STATE OF ARKANSAS
                              WRIT OF ERROR CORAM NOBIS AND
                   RESPONDENT
                              MOTION FOR LEAVE TO RESPOND TO
                              RESPONDENT’S RESPONSE
                              [FAULKNER COUNTY CIRCUIT
                              COURT, NO. 23CR-12-571]


                                                  PETITION, AMENDED PETITION, AND
                                                  MOTION DENIED.


                                JOHN DAN KEMP, Chief Justice

        Petitioner Rolandis Larenzo Chatmon brings this pro se petition to reinvest

 jurisdiction in the trial court to consider a petition for writ of error coram nobis in his

 criminal case. It is the third such petition filed here. He contends that the State at his trial

 violated the provisions of Brady v. Maryland, 373 U.S. 83 (1963), by presenting false

 testimony from witness Monette Solomon, who testified that Chatmon had confessed his

 guilt to him, and by concealing information that could have discredited Solomon in the

 eyes of the jury. He further contends that the State failed to provide information to the

 defense concerning Solomon’s “criminal history, arrest records and rap sheet.” As with the

 prior two petitions, Chatmon has not stated a ground for the writ. Accordingly, we deny

 the petition, an amendment to the petition that Chatmon subsequently filed, and his motion

 for leave to file a response to the State’s response to the petition.
                                    Cite as 2017 Ark. 229

       The petition is properly filed in this court. Chatmon’s 2013 conviction for three

counts of aggravated robbery and one count of theft of property was affirmed on appeal,

Chatmon v. State, 2015 Ark. 28, 467 S.W.3d 731, and the trial court cannot entertain a

petition for writ of error coram nobis after a judgment has been affirmed on appeal unless

this court grants 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. Green v. State, 2016 Ark. 386, 502 S.W.3d 524; Westerman

v. State, 2015 Ark. 69, 456 S.W.3d 374; 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. We are not required to accept the allegations in a

petition for writ of error coram nobis at face value. Green, 2016 Ark. 386, 502 S.W.3d 524.

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       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.” 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; see Howard, 2012 Ark. 177, at 8, 403

S.W.3d at 44. 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.”

Newman, 2009 Ark. 539, at 13–14, 354 S.W.3d at 69. When determining whether a Brady

violation has occurred, it must first be established by the petitioner that the material was

available to the State prior to trial and the defense did not have it. Cloird v. State, 357 Ark.

446, 452, 182 S.W.3d 477, 480 (2004).

       In his first coram nobis petition filed in this court in 2015, Chatmon also alleged that

the State had relied on Solomon’s perjured testimony to obtain his conviction. In that

petition, he alleged that the State had withheld from the defense the transcript of an

interview with Solomon that established that Solomon had given perjured testimony and

that Solomon had been coached by the prosecution to give that false testimony. He

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contended that Solomon was motivated at least in part by conflicts between him and

Chatmon that had occurred when they were incarcerated at the same detention facility. In

the instant petition, Chatmon again alleges that Solomon was prejudiced against him and

asserts that Solomon had harassed and threatened him and others. He further claims that

the State withheld information from the defense that Solomon had entered a plea of guilty

in a federal court case in 2013 before Chatmon’s trial and that Solomon was untruthful in

his testimony about the reduction in his federal sentence that he gained by testifying against

Chatmon. He also argues that the jury was entitled to know that Solomon was a fugitive

from California who had absconded from that jurisdiction while on parole and that Solomon

had a history of giving false information to authorities in return for favorable treatment.

       When we denied Chatmon’s first coram nobis petition, it was noted that the defense

was aware of, and utilized on cross-examination, information concerning Chatmon’s claim

that he had altercations with Solomon. Chatmon v. State, 2015 Ark. 417, at 6–7, 473 S.W.3d

542, at 546 (per curiam).      Chatmon’s allegations in the instant petition are equally

insufficient to establish that the prosecution withheld material evidence about those conflicts

with which the defense could have further impeached Solomon and produced a different

outcome to his trial. See Thacker v. State, 2016 Ark. 350, 500 S.W.3d 736 (noting that the

petitioner must demonstrate that the outcome of the proceeding would have been different).

       Thus, Chatmon has failed to demonstrate a reasonable probability that, had the

defense presented the information to the jury at trial, the result of the proceeding would

have been different. He has offered no proof that the State knowingly utilized false

testimony or otherwise suborned perjury, and we have held that a petitioner’s allegation

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that a witness gave false testimony at trial, in and of itself, does not give rise to a showing of

fundamental error that requires issuance of the writ. See generally Taylor v. State, 303 Ark.

586, 799 S.W.2d 519 (1990) (A witness’s recantation of part of his trial testimony was not

a ground for the writ, as the recantation of the testimony did not fit within the remedy.);

Smith v. State, 200 Ark. 767, 140 S.W.2d 675 (1940). The writ of error coram nobis does

not lie to correct an issue of fact that has been adjudicated or for alleged false testimony at

trial. See Smith, 200 Ark. 767, 140 S.W.2d 675 (noting that a claim after trial of the utter

unreliability of a State’s witness was not a ground for the writ); see also Bass v. State, 191

Ark. 860, 88 S.W.2d 74 (1935) (holding that an issue of fact, even if wrongly decided, is

not error in that technical sense to which the writ refers).

       To the extent that Chatmon’s assertions concerning the allegedly false testimony

could be considered claims that the evidence was insufficient to sustain the judgment, issues

concerning the sufficiency of the evidence are issues to be settled at trial and on the record

on direct appeal, not in a postconviction proceeding. See Cotton v. State, 293 Ark. 338, 738

S.W.2d 90 (1987).

       We note that this third petition borders on constituting an abuse of the writ. We

will not exercise our discretion to permit a successive application for the writ of error coram

nobis if the petitioner is abusing the writ by alleging the same grounds without additional

facts sufficient to provide grounds for the writ. A court has the discretion to determine

whether the renewal of an application for a coram nobis petition will be permitted when a

petitioner raises additional facts in support of the same claim for relief. See United States v.

Camacho-Bordes, 94 F.3d 1168 (8th Cir. 1996) (res judicata did not apply to bar a second

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petition for writ of error coram nobis, but abuse-of-writ doctrine was applied to subsume

res judicata).   Even though Chatmon altered his assertions concerning Solomon, his

allegation was essentially the same—that Solomon had reason to testify falsely. Merely

restating an allegation raised in a prior coram nobis petition does not automatically provide

grounds for a successive petition for the writ.

       Petition, amended petition, and motion denied.




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