                                   Cite as 2018 Ark. 396
                  SUPREME COURT OF ARKANSAS
                                       No.   CR-07-277


JIMMY SMITH                                      Opinion Delivered   December 20, 2018
                              PETITIONER

V.                                     PRO SE SECOND PETITION TO
                                       REINVEST JURISDICTION IN THE
STATE OF ARKANSAS                      TRIAL COURT TO CONSIDER A
                            RESPONDENT PETITION FOR WRIT OF ERROR
                                       CORAM NOBIS
                                       [PULASKI COUNTY CIRCUIT COURT,
                                       FIFTH DIVISION, NO. 60CR-06-1007]

                                                 PETITION DENIED.


                             ROBIN F. WYNNE, Associate Justice

       Petitioner Jimmy Smith was found guilty by a jury in 2006 of first-degree murder in

the death of Corte Beavers. He was sentenced as a habitual offender to 720 months’

imprisonment, and the Arkansas Court of Appeals affirmed. Smith v. State, CR-07-277

(Ark. App. Feb. 6, 2006) (unpublished) (original docket no. CACR07-277).                 Smith

subsequently filed in the trial court a pro se petition for postconviction relief pursuant to

Arkansas Rule of Criminal Procedure 37.1 (2006), which was denied. Smith appealed the

order of denial, and the appeal was dismissed. Smith v. State, 2010 Ark. 122 (per curiam).

Smith then filed in this court his pro se first petition to reinvest jurisdiction in the trial

court to consider a petition for writ of error coram nobis, which this court denied. Smith v.

State, 2016 Ark. 17, 479 S.W.3d 550 (per curiam). Now before us is Smith’s pro se second
petition to reinvest jurisdiction with the trial court to consider a petition for writ of error

coram nobis. Because Smith has failed to demonstrate in the petition that the writ should

issue and several of his claims are successive, the petition is denied.

       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. Wooten v. State,

2018 Ark. 198, 547 S.W.3d 683. 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. 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 that, through no negligence or fault of the

defendant, was not brought forward before rendition of the judgment. Carner v. State,

2018 Ark. 20, 535 S.W.3d 634. The petitioner has the burden of demonstrating a

fundamental error of fact extrinsic to the record. Roberts v. State, 2013 Ark. 56, 425

S.W.3d 771.

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

address errors of the most fundamental nature. Wooten, 2018 Ark. 198, 547 S.W.3d 683.

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. Id. A court is not required to accept the allegations
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in a petition for writ of error coram nobis at face value. Jackson v. State, 2017 Ark. 195,

520 S.W.3d 242.

       Smith contends that he has suffered a variety of defects in the proceedings in his

case, including “Brady v. Maryland, 373 U.S. 83 (1963), violations of witnesses who did not

connect [Smith] to any part of what allegedly occurred on or about November 9, 2005[,]”

and that any connection made to him was by an unreliable witness, Brenda Gonzalez.

Smith also argues that the prosecutor never revealed his prior convictions to the jury to

support his habitual-offender status, amounting to an illegal conviction. Smith contends

that because his Rule 37.1 petition was dismissed on appeal, he was precluded from raising

any ineffective-assistance-of-counsel claims for collateral review in violation of Martinez v.

Ryan, 566 U.S. 1, (2012).1




       1
         Smith titled his petition as one seeking a motion to recall the mandate in his direct
appeal as well as one in coram nobis proceedings. Smith cites legal precedent that pertains
to both coram nobis proceedings and motions to recall the mandate regarding all of his
claims—contending “[a] defect within the breakdown of the proceedings have occurred
within this case[.]” Motions to recall the mandate and coram nobis proceedings are not
interchangeable. Motions to recall the mandate have been consistently considered by this
court in criminal cases only when the death penalty has been imposed, and motions to
recall the mandate in those cases are judged by criteria particular to that cause of action.
See Ward v. State, 2015 Ark. 61, 455 S.W.3d 818. Smith was sentenced to a term of years,
does not allege a defect in the appellate process, and fails to allege the dismissal of
proceedings in federal court because of unexhausted state-court claims. See Robbins v. State,
353 Ark. 556, 114 S.W.3d 217 (2003). Smith fails to present any grounds in his
“combined” petition for which this court would consider the extraordinary circumstances
that would permit reopening the case through recalling the mandate in Smith’s direct
appeal. Furthermore, to the extent Smith argued he was entitled to recall the mandate in
his postconviction proceedings on appeal, no mandate issued to be recalled.
                                              3
       Smith claims that he suffered a Brady violation. 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; and (3) prejudice must have

ensued. Martinez-Marmol v. State, 2018 Ark. 145, 544 S.W.3d 49. When a petitioner

alleges a Brady violation as the basis for his or her claim of relief in coram nobis

proceedings, the facts alleged in the petition must establish that there was evidence

withheld that was both material and prejudicial such as to have prevented rendition of the

judgment had it been known at the time of trial. Id. 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. Id. Clearly, Smith’s witness claim is not a Brady

claim but rather a challenge to the sufficiency of the evidence. That claim, as well as the

claim that the unreliable testimony of Brenda Gonzalez was used to convict him and that

he was prevented from raising his ineffective-assistance-of-counsel claims, was previously

raised in Smith’s pro se first petition to reinvest jurisdiction in the trial court to consider a

petition for writ of error coram nobis. Smith, 2016 Ark. 17, 479 S.W.3d 550. This court

noted that Smith’s allegation regarding Gonzalez was a challenge to the witness’s credibility

and the overall sufficiency of the evidence that was not cognizable in a coram nobis

proceeding; that Martinez does not require the court to expand the scope of a coram nobis

proceeding to permit a collateral challenge based on claims of ineffective assistance of

counsel; that Smith failed to make a full disclosure of specific facts relied upon as to the
                                               4
nature of any material evidence withheld; and that Smith’s claims of ineffective assistance

of counsel were not cognizable in a coram nobis proceeding. Id. Because Smith again

raises these same issues without additional facts, we hold that these arguments constitute

an abuse of the writ.      Smith v. State, 2018 Ark. 37, reh’g denied (March 29, 2018).

Accordingly, this court will not again address those issues.

       Smith, however, raises one issue that he has not previously raised—the prosecutor’s

alleged failure to reveal Smith’s prior convictions to the jury to support his habitual-

offender status, resulting in an illegal conviction. Smith’s claim does not fit within the

recognized categories for coram nobis relief and does not otherwise provide a basis for the

issuance of this extraordinary writ. To merit coram nobis relief, the petitioner must show a

fundamental error of fact extrinsic to the record 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. Carner, 2018 Ark.

20, 535 S.W.3d 634. To warrant coram nobis relief, the defendant must be unaware of the

fact at the time of trial and could not have discovered the fact in the exercise of due

diligence. See Echols v. State, 354 Ark. 414, 125 S.W.3d 153 (2003). Smith does not

establish the existence of facts that could not have been discovered at the time of trial. See

Munnerlyn v. State, 2018 Ark. 161, 545 S.W.3d 207.

       Petition denied.




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