Burks v. State
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Cite as 2011 Ark. 173
SUPREME COURT OF ARKANSAS
No.
CR 09-609
Opinion Delivered
HUTSON BURKS
Petitioner
v.
STATE OF ARKANSAS
Respondent
April 21, 2011
PRO SE PETITION TO REINVEST
JURISDICTION IN THE TRIAL
COURT TO CONSIDER A PETITION
FOR WRIT OF ERROR CORAM NOBIS
[PULASKI COUNTY CIRCUIT COURT,
CR 2007-598]
PETITION DENIED.
PER CURIAM
In 2008, a jury found petitioner Hutson Burks guilty of aggravated robbery and theft
of property, and it imposed sentences of 324 months’ imprisonment and 216 months’
imprisonment on the respective charges. This court affirmed the judgment. Burks v. State,
2009 Ark. 598, ___ S.W.3d ___. Petitioner has now filed a petition in this court seeking leave
to file a petition in the circuit court for writ of error coram nobis.1 Petitioner has failed to
show that the writ is warranted, and we therefore deny the petition.
A prisoner who appealed his judgment and who wishes to attack his conviction by
means of a petition for writ of error coram nobis must first request that this court reinvest
jurisdiction in the trial court. Kelly v. State, 2010 Ark. 180 (per curiam). A petition to reinvest
jurisdiction in the trial court is necessary after a judgment has been affirmed on appeal because
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appeal.
For clerical purposes, the petition was assigned the same docket number as the direct
Cite as 2011 Ark. 173
the circuit court may entertain a petition for the writ only after this court grants permission.
Id. (citing Mills v. State, 2009 Ark. 463 (per curiam)). This court will grant permission for a
petitioner to proceed only when it appears the proposed attack on the judgment is
meritorious. Whitham v. State, 2011 Ark. 28 (per curiam); Buckley v. State, 2010 Ark. 154 (per
curiam). It is a petitioner’s burden to show that the writ is warranted. Scott v. State, 2009 Ark.
437 (per curiam).
In this case, petitioner asserts grounds for the writ on three bases: (1) that after his
conviction, it was discovered that the prosecution used illegal means to secure the testimony
of witness Emma Mickles; (2) that the prosecution committed violations of the requirements
of Brady v. Maryland, 373 U.S. 83 (1963), by failing to provide a pretrial statement of Mickles;
(3) that the prosecution committed a Brady violation in failing to provide a statement of
petitioner’s codefendant, Stella Hill.
A writ of error coram nobis is an extraordinarily rare remedy, more known for its
denial than its approval. Whitham v. State, 2011 Ark. 28 (per curiam); Grant v. State, 2010 Ark.
286, ___ S.W.3d ___ (per curiam). The remedy is exceedingly narrow and appropriate only
when an issue was not addressed or could not have been addressed at trial because it was
somehow hidden or unknown and would have prevented the rendition of the judgment had
it been known to the trial court. McCoy v. State, 2011 Ark. 13 (per curiam) (citing Clark v.
State, 358 Ark. 469, 192 S.W.3d 248 (2004)). This court has previously recognized that a writ
of error coram nobis was available to address errors found in four categories: insanity at the
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time of trial; a coerced guilty plea; material evidence withheld by the prosecutor; a third-party
confession to the crime during the time between conviction and appeal. Webb v. State, 2009
Ark. 550 (per curiam).
Petitioner’s first ground for relief turns on the use of Mickles’s testimony. As in his
direct appeal, he protests that the prosecution’s agreement with Mickles for her testimony was
illegal. He alleges that it was only after his conviction that the illegal tactics were discovered
and that after his conviction Mickles negotiated a greater reduction in her sentence.2 Yet, the
issue was not unknown at trial, even if the specific results of the agreement had not been
confirmed and this court had not ruled on the legality of the agreement. Trial counsel filed
a motion to suppress Mickles’s testimony based upon the proposed agreement for a reduced
sentence. The issue of whether petitioner was able to effectively cross-examine Mickles was
one that was addressed at trial and addressed again on appeal. Petitioner’s claim does not fall
within one of the recognized categories of error.
Petitioner’s next two grounds for the writ concern allegations that the prosecution
suppressed statements by Mickles and Hill. Allegations of a Brady violation fall within the third
recognized category of error. The fact that petitioner alleges a Brady violation, however, is not
alone sufficient to provide a basis for error coram nobis relief. Harris v. State, 2010 Ark. 489
(per curiam). Assuming that withheld evidence meets the requirements of a Brady violation
2
In our opinion on petitioner’s direct appeal, we noted that Mickles had originally
requested a ten-year reduction in sentence, but that the circuit court had granted a twelveyear suspended sentence on her prior conviction through a writ of error coram nobis.
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Cite as 2011 Ark. 173
and is both material and prejudicial, in order to justify issuance of the writ, the withheld
material evidence must also be such as to have prevented rendition of the judgment had it
been known at the time of trial. Thrash v. State, 2011 Ark. 118 (per curiam). To merit relief,
a petitioner must demonstrate that there is a reasonable probability that the judgment of
conviction would not have been rendered, or would have been prevented, had the
information been disclosed at trial. Id.
In neither instance does petitioner identify the specific statement that he contends was
suppressed. Counsel was obviously aware that the prosecution was to call Mickles, and the
record contains what appears to be a reference to Hill3 during a pretrial hearing in which the
prosecutor indicated that he would require more time to obtain information about her
testimony implicating petitioner. Defense counsel expressed a request for the witness’s
statement at that hearing.
Petitioner alleges that there were inconsistencies in Mickles’s testimony and the
allegedly withheld pretrial statement. But, because he does not identify the statement that he
contends was withheld, he has failed to demonstrate that the evidence that he alleges was
withheld would be sufficient to have prevented rendition of the judgment. Defense counsel
cross-examined Mickles concerning her agreement with the prosecution, about statements she
had made in testimony that were inconsistent with her previous guilty plea, and about
statements within her testimony at trial that were inconsistent. Petitioner has not
3
The reference was to someone who had been arrested and confessed to the bank
robbery.
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Cite as 2011 Ark. 173
demonstrated that any inconsistencies in other prior statements by Mickles would have been
any more effective in discrediting her testimony.
Petitioner alleges that Hill, who entered a plea of nolo contendere to charges that she
participated in the crime, made a statement that he was not with her on the day of the
robbery. He does not provide a copy of the statement that he alleges was withheld, however.
Appellant contends that, had the statement been available to the defense, it would have
impeached Mickles’s testimony that he and Hill were together on the day of the crime. Yet,
two bank employees also identified petitioner as having robbed them on the day in question.
Even accepting petitioner’s claim as to the contents of the statement, he again fails to
demonstrate that the evidence would have prevented rendition of the judgment.
This court is not required to accept the allegations in a petition for writ of error coram
nobis at face value. Scott v. State, 2009 Ark. 437 (per curiam). The application should make
a full disclosure of specific facts relied upon and not merely state conclusions as to the nature
of such facts. Id. In making a determination to grant permission to reinvest jurisdiction in the
trial court, this court looks to the reasonableness of the allegations and to the existence of the
probability of the truth of those allegations. Webb v. State, 2009 Ark. 550 (per curiam) (citing
Echols v. State, 354 Ark. 414, 125 S.W.3d 153 (2003)).
Petitioner fails to provide facts sufficient to meet his burden to show that the writ is
warranted. He does not demonstrate the existence of specific material evidence, much less that
any particular evidence was withheld from the defense by the prosecution. Moreover, he does
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not demonstrate that the evidence that he alleges to have been withheld, if it could be more
specifically identified, would have been sufficient so as to grant relief. Accordingly, we deny
the petition.
Petition denied.
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