
    2016 Ark. 378
    Edward CARTER, Petitioner v. STATE of Arkansas, Respondent
    No. CR-08-1385
    Supreme Court of Arkansas.
    Opinion Delivered November 3, 2016
   PER CURIAM

|Jn 2008, petitioner Edward Carter was found guilty by a jury of aggravated robbery and was sentenced to 360 months’ imprisonment. The Arkansas Court of Appeals affirmed. Carter v. State, 2009 Ark. App. 683, 2009 WL 3384382.

In 2015, Carter filed in this court a 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, as well as an amendment to it, were denied. Carter v. State, 2015 Ark. 397, 2015 WL 6560610 (per curiam). On August 17, 2016, Carter filed a second such petition that is now before us. After the State filed its response, Carter filed a request to be allowed to file a response to the State’s response. We deny the petition and the request. •

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 |2appeal 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.

Evidence adduced at Carter’s trial reflected that he and Jessica Brewer were shopping at a Wal-Mart store at the same time Salli Reding and Shannon Smith were shopping in the' store. Reding observed Carter placing video games inside his clothing. When Carter left the store without paying for the games, Reding followed him outside and confronted him about his failure to pay. At that point, Carter pulled a gun from his pocket, cocked it, and | ¡¡pointed it at Reding. Smith testified that she did not see Carter pull out the gun but saw a gun in Carter’s hand down at his side after Reding stepped back and called out, “He’s got a gun.” Brewer also testified to seeing a gun at Carter’s side. Carter then left the parking lot with Brewer and went to a resale shop where he sold the stolen games as used electronics.

On direct appeal, Carter argued that the State failed to prove that he had actual, unauthorized possession of merchandise from .the Wal-Mart, that there was no proof that a security alarm sounded when he left the store, and that no representative of the store testified to a loss of the merchandise. He contended that, without proof of the theft, there could be no aggravated robbery. The court of appeals rejected the arguments, finding that there was substantial evidence of a theft. Carter, 2009 Ark. App. 683, at 3. The court of appeals held that aggravated robbery occurred when physical force was threatened. Id.

As grounds for his first petition for a writ of error coram nobis, Carter contended that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He reiterates the claim in this petition and in the request to respond to the State’s response to , the petition.

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, 119 S.Ct. 1936, 144 L.Ed.2d 286 (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, 119 S.Ct. 1936 (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). In Strickler, the Court also set out the three elements of a true Brady violation: (1) the evidence at issue must 14be 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; and (3) prejudice must have ensued. Strickler, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286; see Howard, 2012 Ark. 177, 403 S.W.3d 38. Impeachment evidence that is material, as well as exculpatory evidence, falls within the Brady rule. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481. 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 to those claims, Isom, 2015 Ark. 225, 462 S.W.3d 662.

In the first petition, Carter based his Brady claim on the following assertions: Carter did not take, or manifest the intention to take, anything of value from Red-ing; the only crimes that Reding could have witnessed were .shoplifting by Brewer, who stole the video games, and, if Brewer passed those games, to. Carter, Reding was a witness only to Carter’s being an accomplice to shoplifting;, the State used a statement from a Wal-Mart customer as evidence that an aggravated robbery had occurred;- Reding was a witness only to the aggravated robbery of Randall Nichols, a Wal-Mart employee; the affidavit in support of the arrest warrant for aggravated robbery recited facts that supported only a showing of shoplifting or accomplice to shoplifting; the victim was Wal-Mart, not Reding; Carter was charged with one crime and convicted of another because there was no robbery; in her pretrial statement, Reding speaks as though she were a police officer or “some type of store security” rather than an ordinary shopper, and this constituted a “fabricated affidavit” that was used to obtain an arrest warrant; Carter’s Fifth Amendment right to remain silent was | ¿violated because the “court stated that [Carter] did not confess to a shoplifting charge so he cannot rely on it now”; Carter did not know that he was being tried for committing an aggravated robbery against Red-ing; the State did not disclose that Reding was testifying as a witness rather than a victim, and, as a result, she could not be asked if she believed that Carter had any intention of taking anything of value from her by threat or force; and the State allowed Reding’s perjured testimony to' be introduced at trial.

This court denied the relief sought in the first petition because it was abundantly clear that the claims raised by Carter were challenges to the sufficiency of the evidence adduced at trial rather than a violation of Brady in that he offered nothing to demonstrate that any material evidence had been concealed from the defense. Carter, 2015 Ark. 397, at 5. Issues concerning the sufficiency of the evidence are not cognizable in coram-nobis proceedings. Ventress v. State, 2015 Ark. 181, at 6, 461 S.W.3d 313, 317 (per curiam). The question of the sufficiency of the evidence is to be settled at trial and on the record on direct appeal. Sims v. State, 2012 Ark. 458, 2012 WL 6061927 (per curiam). The claims, of trial error were outside the purview of a coram-nobis proceeding. Howard, 2012 Ark. 177, 403 S.W.3d 38. Even constitutional issues that could have been addressed at trial are not within the purview of the writ. See Watts v. State, 2013 Ark. 485, at 7, 2013 WL 6157325 (per curiam).

In this second petition for the writ, Carter repeats some of the same claims and again seeks to challenge the evidence adduced at trial, and he again complains of trial error. He first argues that, if there had been a proper arraignment in a timely manner, no court would have found the evidence sufficient to bind him over for trial in the circuit court. He further contends that only a photograph of the gun was produced at trial; that the gun in the | (¡photograph was a toy that could not be cocked; that the Wal-Mart manager did not give a sworn statement or testify at trial even though the- manager was the complainant; and that any aggravated robbery was against Reding, but he was not charged with an offense against her. As with the allegations raised in the first petition, for the writ, these claims are not a ground for the writ.

Carter contends that Brady was violated by the State’s failure to produce the “best evidence” of the offenses. He states that he did not bring the allegations in his first petition because he did not receive certain information until after he had filed a petition under the Freedom of Information Act (“FOIA”). Specifically, he states that he located newly discovered evidence in the form of pictures that appear to show a different gun than the one at issue in his trial and other information that refutes the testimony and evidence adduced at trial. He asserts that he has learned that his fingerprints were not found on the gun, that there was no video showing him stealing from Wal-Mart, and that were “narratives” withheld, by the State that would have been helpful to the defense and that were used by the State to obtain a spurious warrant for his arrest. He contends that the material he received through the FOIA request indicates that there was no probable cause for the warrant. Carter argues that, if this information had been available to him at trial, he could have moved to dismiss the warrant and suppress the evidence obtained through the warrant.

First, it should be noted that we have held that a writ of error coram nobis cannot be granted on the basis of newly discovered evidence alone. Pinder v. State, 2015 Ark. 423, at 5, 474 S.W.3d 490, 493 (per curiam); Smith v. State, 301 Ark. 374, 375, 784 S.W.2d 595, 596 (1990). There is a distinction between fundamental error, which requires issuance of 17the writ, and newly discovered information, which might have created an issue to be raised at trial had it been known. Hooper v. State, 2015 Ark. 108, at 6-7, 458 S.W.3d 229, 233 (per curiam). To establish that newly discovered evidence is a basis for the writ, the facts as alleged as grounds for the writ must show that there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the exculpatory evidence been disclosed at trial. Butler v. State, 2015 Ark. 488, at 3-4, 478 S.W.3d 210, 213 (per curiam); Dansby v. State, 343 Ark. 635, 641, 37 S.W.3d 599, 603 (2001). Carter 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. When the petitioner does not demonstrate that the newly discovered evidence 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).

Moreover, Carter has not stated a ground for the writ because he offers 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. See Strickler, 527 U.S. 263, 280, 119 S.Ct. 1936, 144 L.Ed.2d 286; see also 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, at 4, 497 S.W.3d 679 (per curiam).

|RWith respect to Carter’s' allegations concerning the validity of the arrest warrant, any defects in the arrest warrant could have been discovered and raised in the trial court. See Smith v. State, 2016 Ark. 201, at 3, 491 S.W.3d 463 (per cu-riam). Carter’s claims regarding the warrant in his case do not' establish the existence of some fact extrinsic to the record that was concealed from the defense. See id. The petitioner seeking to reinvest jurisdiction in the trial court to proceed with a coram-nobis petition bears the burden of presenting facts to support the claims for the writ because an application for the writ must make a full disclosure of specific facts relied on and not merely state conclusions as to the nature of such facts. Howard, 2012 Ark. 177, 403 S.W.3d 38; see also Cloird v. State, 357 Ark. 446, 182 S.W.3d 477 (2004).

Petition and request denied.  