Antonio Williams, Kendrick Gillum, and Demarco T. Wilson v. State of Arkansas

ARKANSAS SUPREME COURT

NOT DESIGNATED FOR PUBLICATION

PER CURIAM

SEPTEMBER 27, 2001

ANTONIO WILLIAMS

Petitioner

v.

STATE OF ARKANSAS

Respondent

CR 98-256

PRO SE PETITION FOR LEAVE TO PROCEED IN CIRCUIT COURT WITH PETITION FOR WRIT OF ERROR CORAM NOBIS [CIRCUIT COURT OF CRITTENDEN COUNTY, CR 97-439A]

PETITION DENIED

In 1997, Antonio Williams was found guilty of capital murder and theft of property and sentenced as a habitual offender to an aggregate sentence of life imprisonment without parole. We affirmed. Williams v. State, 338 Ark. 178, 992 S.W.2d 89 (1999).1 Williams now petitions this court to reinvest the trial court with jurisdiction to consider a petition for writ of error coram nobis in the case. 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. Larimore v. State, 327 Ark. 271, 938 S.W.2d 818 (1997).

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). Literally, coram nobis means our court, in our presence, before us. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984). The essence of the writ of error coram nobis is that it is addressed to the very court which renders the judgment where injustice is alleged to have been done, rather than to an appellate or other court. Black's Law Dictionary 337 (6th ed. 1990). 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). We have held that a writ of error coram nobis was available to address certain errors of the most fundamental nature 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, supra. Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Due diligence is required in making application for relief. Penn v. State, supra; Troglin v. State, 257 Ark. 644, 646, 519 S.W.2d 740, 741 (1975). After reviewing the instant petition, we do not find that petitioner has stated any good cause to grant leave to proceed with a petition for writ of error coram nobis in the trial court.

Petitioner Williams contends that he is entitled to error coram nobis relief on the sole ground that one of the witnesses who testified against him at trial has recanted his testimony. We specifically held, however, in Taylor v. State, 303 Ark. 586, 799 S.W.2d 519 (1990), and Smith v. State, 200 Ark. 767, 140 S.W.2d 675 (1940), that a writ of error coram nobis will not lie for recanted testimony. In Taylor, while the judgment was on appeal to this court, the appellant

filed a petition for writ of error coram nobis claiming to be entitled to a new trial on the charge of murder of which she had been convicted. The petition was based on the claim that a key prosecution witness at her trial had recanted part of his testimony that implicated her in the murder. We denied the petition, noting that the writ is granted only when there is an error of fact extrinsic to the record such as insanity at the time of trial, a coerced plea of guilty, or material evidence withheld by the prosecutor. While we noted that there was other evidence of petitioner's guilt besides that which was alleged to have been recanted, we concluded that petitioner's claim did not fit within the remedy sought. Taylor, supra, at 594.

In Smith, the principal witness against the petitioner had recanted his testimony and two other persons had confessed to the offense of which he had been convicted. The writ was denied on the ground that a new trial may not be granted by employment of the writ merely because of the development after the trial of the utter unreliability of the State's witness so that grave doubts of guilt appear. Smith, supra, at 769. We find nothing in our later decisions, including Larimore, supra, that expanded the remedy to allow a claim of recanted testimony to be encompassed by the writ.

The scope of writ of error coram nobis proceedings was reiterated in Brown v. State, 330 Ark. 627, 955 S.W.2d 901 (1997), in which we held that a third-party confession discovered after affirmance of the judgment was untimely. As we indicated in Brown, clemency is the petitioner's remedy when an allegation lies outside the scope of an error coram nobis proceeding. Brown, supra, at 632.

Petition denied.

1 After the judgment of conviction was affirmed, Williams filed in the trial court a timely petition for postconviction relief pursuant to Criminal Procedure Rule 36.4. The petition was denied, and the appeal from that order is now pending in this court.