Alvin Lamont Davis v. State of Arkansas

ARKANSAS SUPREME COURT

No. CR 92-575

NOT DESIGNATED FOR PUBLICATION

ALVIN LAMONT DAVIS

Petitioner

v.

STATE OF ARKANSAS

Respondent

Opinion Delivered October 6, 2005

PRO SE PETITION FOR LEAVE TO PROCEED ON WRIT OF ERROR CORAM NOBIS [CIRCUIT COURT OF PULASKI COUNTY, CR 1991-482]

PETITION DENIED

PER CURIAM

Alvin Lamont Davis was convicted of capital murder and sentenced to life imprisonment without parole. This court affirmed the judgment on appeal. Davis v. State, 310 Ark. 582, 839 S.W.2d 182 (1992). Davis has filed a pro se petition in this court and now requests us to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis.1 The petition for leave to proceed in the trial 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. Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001) (per curiam).

Petitioner Davis appears to misstate the standard required in order that we recall the mandate, referencing constitutional error. The writ is allowed only under compelling circumstances to achieve  justice and to address errors of the most fundamental nature. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per curiam). The function of a writ of error coram nobis is to secure relief from a judgment rendered while there existed some fact which 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 judgment. Echols v. State, ___ Ark. ___, ___ S.W.3d ___ (January 20, 2005) ("Echols Error Coram Nobis II" or "Echols ECN II"). A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Larimore v. State, 341 Ark.397, 17 S.W.3d 87 (2000).

We have held that a writ of error coram nobis was available to address certain errors that are found in one of four categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor, or a third-party confession to the crime during the time between conviction and appeal. Pitts v. State, 336 Ark. 580, 986 S.W.2d 407 (1999) (per curiam). For the writ to issue following the affirmance of a conviction, the petitioner must show a fundamental error of fact extrinsic to the record. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997). Petitioner has not shown such error.

Petitioner refers to newly discovered evidence, but does not point to any evidence that was not available at the time of his trial, aside from two statements, one from an accomplice and one from a witness. Petitioner references some fingerprints found at the scene, but he does not allege that trial counsel was not aware of the prints or that the State withheld the prints. The remaining evidence petitioner references comes from trial testimony. The only issues concerning evidence that could not be or was not addressed at trial would arise from the statements, and as to those statements, petitioner has clearly failed to exercise due diligence.

While there is no specific time limit for seeking a writ of error coram nobis, due diligence is required in making an application for relief and in the absence of a valid excuse for delay, the petition will be denied. Echols ECN II, at ____, ___ S.W.3d at ___. Due diligence requires that 1) the defendant be unaware of the fact at the time of trial; 2) he could not have, in the exercise of due diligence, presented the fact at trial; or 3) upon discovering the fact, did not delay bringing the petition. Id. Here, the statements petitioner relies upon were made in 1997. Petitioner offers no excuse for such a long delay in seeking relief.

Petitioner makes a number of assertions regarding ineffective assistance of counsel and the violation of his constitutional rights. None of those claims are cognizable in a petition for writ of error coram nobis; they are properly raised in a timely petition for postconviction relief pursuant to Ark. R. Crim. P. 37.1 or on direct appeal. See McArty v. State, 335 Ark.445, 983 S.W.2d 418 (1998). Petitioner also makes a claim of actual innocence. This is simply a challenge to the sufficiency of the evidence, and a direct attack on the judgment below. We do not permit an appellant to rechallenge the sufficiency of the evidence at trial in a postconviction proceeding. Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995). Petitioner's claim of actual innocence also is not a claim cognizable in a petition for writ of error coram nobis.

Each of the four categories we have recognized for relief under a writ of error coram nobis provides an example of fundamental error that was hidden or unknown and was not or could not be addressed at trial. None of petitioner's claims falls within any of the four categories of errors for which error coram nobis constitutes appropriate relief, and the petitioner has failed to exercise due diligence in raising the claims he does make. Petitioner has therefore failed to show a fundamental error that was unknown and could not have been addressed, and thereby failed to show grounds for granting his petition.

Petition denied.

1 For clerical purposes, the instant petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis was assigned the same docket number as the direct appeal of the judgment.