Gardner v. State
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Cite as 2011 Ark. 27
SUPREME COURT OF ARKANSAS
No.
CR 05-472
Opinion Delivered
WALLACE A. GARDNER
Petitioner
v.
STATE OF ARKANSAS
Respondent
January 27, 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 2004-1077]
PETITION DENIED.
PER CURIAM
In 2004, petitioner Wallace A. Gardner was found guilty by a jury of capital murder
and aggravated robbery. He was sentenced as a habitual offender to an aggregate term of life
imprisonment without parole. We affirmed. Gardner v. State, 364 Ark. 506, 221 S.W.3d 339
(2006).
In 2009, approximately three and one-half years after the mandate was issued following
affirmance of the judgment, petitioner filed in the trial court an unverified pro se petition to
vacate the judgment pursuant to Arkansas Rule of Criminal Procedure 37.1 (2010). The
petition was denied, and this court dismissed an appeal from the order on the ground that the
Rule 37.1 petition was not timely filed. Gardner v. State, 2010 Ark. 344 (per curiam).
Cite as 2011 Ark. 27
Now before us is petitioner’s pro se petition requesting that this court 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. Fudge v. State, 2010 Ark. 426 (per curiam); Grant v. State, 2010 Ark. 286,
___ S.W.3d ___ (per curiam) (citing Newman v. State, 2009 Ark. 539, ___ S.W.3d ___); see
also Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001) (per curiam).
A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial
than its approval. Fudge, 2010 Ark. 426 (per curiam); Barker v. State, 2010 Ark. 354, ___
S.W.3d ___; Larimore v. State, 341 Ark. 397, 17 S.W.3d 87 (2000). 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). 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, 336 Ark. at 583, 986 S.W.2d at 409. Coram nobis proceedings
are attended by a strong presumption that the judgment of conviction is valid. Barker, 2010
Ark. 354; Echols v. State, 360 Ark. 332, 201 S.W.3d 890 (2005). The function of the writ is
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, CR 05-472.
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Cite as 2011 Ark. 27
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 circuit court and which, through no
negligence or fault of the defendant, was not brought forward before rendition of judgment.
Grant, 2010 Ark. 286 (citing Newman, 2009 Ark. 539); see also Sanders v. State, 374 Ark. 70,
285 S.W.3d 630 (2008) (per curiam); Cloird v. State, 357 Ark. 446, 182 S.W.3d 477 (2004).
The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the
record. Webb v. State, 2009 Ark. 550 (per curiam); Sanders v. State, 374 Ark. 70, 285 S.W.3d
630 (2008) (per curiam). Coram nobis proceedings are attended by a strong presumption that
the judgment of conviction is valid. Venn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984)
(citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975)).
Petitioner’s grounds for issuance of the writ may be summarized as follows: his attorney
made errors in her representation of him at trial; his defense attorney had a conflict of interest
that caused her not to consult with him and not to advocate his cause; his attorney withheld
specific information from the jury that would have resulted in a not-guilty verdict had the jury
been aware of the information; the trial judge and prosecutor conspired with defense counsel
to withhold evidence; the evidence was insufficient to sustain the judgment of conviction;
perjured testimony was used to obtain his conviction; he was denied his rights under the
Constitution to due process and equal protection of law; his arrest was illegal; evidence used
against him was obtained by an illegal search; he was not brought before a judicial officer
following his arrest within the time set by the prevailing rules of procedure; coercive police
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Cite as 2011 Ark. 27
procedures were used to induce certain persons to confess and make statements prejudicial to
him; the prosecutor was allowed by the court to make statements prejudicial to petitioner in
voir dire of the jury and in the prosecutor’s opening statement; he was denied a speedy trial.
We first note that ineffective assistance of counsel is not a ground for issuance of a writ
of error coram nobis. Fudge, 2010 Ark. 426; Grant, 2010 Ark. 286. Any claims that petitioner
desired to raise concerning counsel’s representation of him should have been made in a timely
petition for postconviction relief under Criminal Procedure Rule 37.1. Grant, 2010 Ark. 286.
With respect to petitioner’s assertion that his attorney wrongfully withheld information
from the jury, it appears that petitioner has misconstrued the ruling in Brady v. Maryland, 373
U.S. 83 (1963), which he cites as authority. The Supreme Court in Brady held that “the
suppression by the prosecution of evidence favorable to an accused upon request violates due
process where the evidence is material to guilt or punishment, irrespective of the good faith
or bad faith of the prosecution.” 373 U.S. at 87. Petitioner’s claims pertain to his attorney’s
alleged failure to allow the jury to become aware of information that petitioner believes would
have been favorable to the defense. Brady does not concern decisions made by a defendant’s
own counsel.
As to petitioner’s many allegations of trial error and violations of the Constitution, issues
of trial error, even those of constitutional dimension, could have been raised at trial or in some
other legal proceeding; such issues are not cognizable in a coram nobis proceeding. See Fudge,
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Cite as 2011 Ark. 27
210 Ark. 426; see also Flanagan v. State, 2010 Ark. 140 (per curiam). Again, a coram nobis
proceeding is limited to the four categories set out above.
This court will grant permission to reinvest jurisdiction in the trial court to consider a
petition for writ of error coram nobis only when it appears the proposed attack on the
judgment is meritorious. Echols v. State, 354 Ark. 414, 125 S.W.3d 153 (2003). Here,
petitioner has stated no ground to grant the writ.
Petition denied.
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