Williams v. State , 518 S.W.3d 653 ( 2017 )

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SUPREME COURT OF ARKANSAS
No. CR-16-511
Opinion Delivered: February 9, 2017
ALVIN RAY WILLIAMS
APPELLANT
V. APPEAL FROM THE PULASKI
COUNTY CIRCUIT COURT
STATE OF ARKANSAS [NO. CR94-1676]
APPELLEE
HONORABLE TIMOTHY DAVIS
FOX, JUDGE
REVERSED AND REMANDED;
REQUEST TO PROCEED IN
FORMA PAUPERIS GRANTED; LEE
D. SHORT APPOINTED AS
COUNSEL IN THE CIRCUIT
COURT.
ROBIN F. WYNNE, Associate Justice
Alvin Ray Williams appeals from an order of the Pulaski County Circuit Court
denying his petition for writ of error coram nobis. He argues on appeal that this court
should reverse the circuit court’s order denying his petition and order a new trial, or if this
court determines that immediate relief is unwarranted in light of the current record, he asks
that this court reverse and remand for factual development and a reasoned opinion. If the
case is remanded, he also asks that this court reverse the circuit court’s denial of his request
to proceed in forma pauperis and appoint counsel. We find merit in his arguments and
reverse and remand for an evidentiary hearing and an order containing findings of fact. We
also grant his request to proceed in forma pauperis and appoint Lee D. Short as counsel.
In November 1994, Williams was found guilty by a jury of first-degree murder and
sentenced to life imprisonment. This court affirmed on direct appeal. Williams v. State, 325
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Ark. 432, 930 S.W.2d 297 (1996). This court subsequently affirmed the denial of Williams’s
petition for postconviction relief under Rule 37. Williams v. State, No. CR 97-1020 (Ark.
Dec. 10, 1998) (unpublished per curiam). In December 2015, Williams filed a petition
asking this court to reinvest jurisdiction in the circuit court to consider a petition for writ
of error coram nobis.1 The State filed a response. This court granted Williams’s petition by
syllabus entry on January 7, 2016.
After this court granted permission to proceed, Williams filed his petition for writ of
error coram nobis in the Pulaski County Circuit Court. The basis for his petition is a Brady
claim. Williams was convicted of first-degree murder in the shooting death of Ron Henry;
he asserted that the shooting was justified by self-defense. He contends that the prosecution
failed to disclose an exculpatory statement by a witness that supported his claim that Henry
pulled the gun and he (Williams) obtained the gun in their struggle and shot Henry in self-
defense.
The circuit court entered an order denying Williams’s petition, stating as follows:
“On the 15th day of March 2016, Petitioner’s Petition for Writ of Error Coram Nobis filed on
February 5, 2016 came on for consideration. The court finds that Petitioner’s Petition for
Writ of Error Coram Nobis should be and hereby is Denied.” On the same date, the circuit
court entered an order denying Williams’s motion to appoint counsel and to proceed in
forma pauperis, also without findings. Williams filed a motion for reconsideration and for
1
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. Pitts v. State, 336
Ark. 580, 582, 986 S.W.2d 407, 409 (1999).
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ruling and a renewed motion to proceed in forma pauperis, both of which the circuit court
denied. This appeal followed.
This court’s standard for considering a petition to reinvest jurisdiction in the circuit
court to consider a petition for writ of error coram nobis is as follows:
This court will grant permission for a petitioner to proceed in the trial court with a
petition for writ of error coram nobis only when it appears the proposed attack on
the judgment is meritorious. In making such a determination, we look to the
reasonableness of the allegations of the petition and to the existence of the probability
of the truth thereof.
Howard v. State, 2012 Ark. 177, at 5, 403 S.W.3d 38, 43. Furthermore, although there is
no specific time limit for seeking a writ of error coram nobis, due diligence is required in
making an application for relief. Philyaw v. State, 2014 Ark. 130, at 6 (per curiam). The
essence of the writ of error coram nobis is that it is addressed to the very court that renders
the judgment where injustice is alleged to have been done, rather than to an appellate or
other court. State v. Larimore, 341 Ark. 397, 406, 17 S.W.3d 87, 92 (2000) (citing Black’s
Law Dictionary 337 (6th. ed. 1990)).
Under these standards, we agree with Williams’s argument that the circuit court was
required to do more than deny Williams’s petition without allowing discovery, holding an
evidentiary hearing, or making any findings of fact. In granting Williams’s petition, this
court necessarily found that his petition for writ of error coram nobis appeared to be
meritorious. As it now stands, the circuit court reviewed the exact same record as was
before this court, determined that the petition did not have merit, and denied the petition
without findings of fact. Cf. Penn v. State, 282 Ark. 571, 577, 670 S.W.2d 426, 429 (1984)
(“If [the petition for writ of error coram nobis] has merit, by all means a writ should be
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granted; if the petitioner fails in his burden of proof, then at least a hearing will have resulted.
There will be no void in the system as there is now.”)
The State responds by arguing that the circuit court’s order should be affirmed for
lack of diligence or for failure to demonstrate a reasonable probability that the judgment
would not have been entered had the statement been available to Williams at trial. The
State further argues that, at most, Williams is entitled only to a remand for further factual
development because thus far he has only alleged, not proved, that the prosecution withheld
Smith’s statement from him and his trial counsel. We note that the State made substantially
similar arguments regarding diligence and the merits in its response brief before this court
on the petition to reinvest jurisdiction, but this court nonetheless granted the petition.
Thus, these arguments have been considered by this court previously and rejected. 2 We
reverse and remand the circuit court’s order denying Williams’s petition for writ of error
coram nobis, and we direct the court to hold an evidentiary hearing and enter an order
making specific findings as to whether Williams is entitled to relief.
The final point on appeal concerns whether the circuit court erred in denying
Williams’s motion to proceed in forma pauperis and have counsel appointed. Present
counsel, John C. Williams, states that he has represented Williams pro bono in this matter,
but he does not presently have the time to continue to do so. He states that Lee D. Short
has stated that he is willing to accept appointment in this matter.
2
While we recognize that a petition to reinvest jurisdiction to consider a writ of
error coram nobis will be denied where this court finds as a matter of law that a petitioner
failed to exercise due diligence, see Howard v. State, 2012 Ark. 177, at 13, 403 S.W.3d 38,
47, we did not so find in this case.
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This court has stated that in regards to postconviction matters, there is no absolute
right to counsel. Strawhacker v. State, 2015 Ark. 263, at 2 (per curiam) (citing Howard v.
Lockhart, 300 Ark. 144, 777 S.W.2d 223 (1989) (per curium)). Nevertheless, this court has
held that if an appellant makes a substantial showing that he is entitled to relief in a
postconviction matter and that he cannot proceed effectively without counsel, we will
appoint counsel. Id. Having considered the affidavit in support of his request to proceed
in forma pauperis and the specific circumstances of this case, we grant Williams in forma
pauperis status and appoint Lee D. Short to represent him in this matter.
Reversed and remanded; request to proceed in forma pauperis granted; Lee D. Short
appointed as counsel in the circuit court.
HART, J., concurs.
KEMP, C.J., and WOOD, J., dissent.
JOSEPHINE LINKER HART, Justice, concurring. I agree with the majority that
this case was properly remanded to the circuit court inasmuch as its actions upon prior
remand were completely indistinguishable from the actions that once again placed this case
before us. I write separately because it is time for this court to dispose of “due-diligence”
associated with our error coram nobis jurisprudence.
First consider the black-letter law regarding error coram nobis in Arkansas. We have
so often said the following it is axiomatic: error coram nobis proceedings are attended by a
strong presumption that the judgment of conviction is valid. See, e.g., Howard v. State, 2012
Ark. 177, 403 S.W.3d 38. The Howard court set out the boilerplate that appears regularly in
our decision denying relief.
A writ of error coram nobis is an extraordinarily rare remedy, more known for its
denial than its approval. For the writ to issue following the affirmance of a
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conviction and sentence, the petitioner must show a fundamental error of fact
extrinsic to the record. The function of the writ 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. The writ is
issued only under compelling circumstances to achieve justice and to address errors
of the most fundamental nature. We have held that a writ of error coram nobis is
available to address 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.
Id. at 4, 403 S.W.3d at 42–43 (internal citations omitted). Further, the Howard court
noted that
[t]his court will grant permission for a petitioner to proceed in the trial court with a
petition for writ of error coram nobis only when it appears the proposed attack on
the judgment is meritorious. In making such a determination, we look to the
reasonableness of the allegations of the petition and to the existence of the probability
of the truth thereof.
Id. at 5, 403 S.W.3d at 43 (quoting Flanagan v. State, 2010 Ark. 140, at 1 (per curiam).
Adding a requirement that the petitioner act with “due diligence” to this already dauntingly
difficult burden is contrary to purpose of the writ. It should not be a stumbling block to
error coram nobis relief when the writ is only issued to achieve justice when there has been
a fundamental and manifest injustice.
Furthermore, the concept of “due diligence” is completely devoid of any objective
standard. We need only consider the companion cases of Strawhacker v. State, 2016 Ark.
348, 500 S.W.3d 716, and Pitts v. State, 2016 Ark.345, 500 S.W.3d 803. In those cases, we
reinvested jurisdiction in the trial court to consider the effect of repudiated trial testimony
of FBI lab technician Michael Malone, a forensic hair analyst. Pitts had been incarcerated
since 1981 and Strawhacker since 1990. Both men were notified that the Department of
Justice (DOJ) had repudiated Malone’s testimony in 2014. However, the substance of the
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DOJ letter was that Malone’s testimony was infirm because he had offered an expert opinion
that exceeded the bounds of the science he practiced—microscopic hair analysis. However,
it was apparent that Malone’s testimony was infirm for that reason the very day that he gave
it.1 Moreover, neither Pitts’s nor Strawhacker’s action upon receipt of the DOJ notification
that it was repudiating Malone’s testimony was exactly instantaneous. In short, when this
court has seen a case in which there has been an apparent, manifest denial of justice, “due
diligence” is never an issue. The people of the State of Arkansas gain nothing by unjustly
imprisoning one of its fellow citizens.
RHONDA K. WOOD, Justice, dissenting. I dissent because appellant is not
entitled to the relief sought. Williams did not exercise due diligence in requesting his
petition for writ of error coram nobis relief. This court, without issuing a written opinion,
granted Williams’s petition to reinvest jurisdiction in the circuit court to consider error
1
The DOJ and the FBI review concluded that there were three types of errors in Malone’s
testimony:
(1) [T]he examiner stated or implied that the evidentiary hair could be associated
with a specific individual to the exclusion of all others—this type of testimony
exceeded the limits of the science;
(2) the examiner assigned to the positive association a statistical weight or probability
or provided a likelihood that the questioned hair originated from a particular source,
or an opinion as to the likelihood or rareness of the positive association that could
lead the jury to believe that valid statistical weight can be assigned to a microscopic
hair association—this type of testimony exceeded the limits of the science; or
(3) the examiner cites the number of cases or hair analyses worked in the laboratory
and the number of samples from different individuals that could not be distinguished
from one another as a predictive value to bolster the conclusion that a hair belongs
to a specific individual—this type of testimony exceeded the limits of the science.
Pitts, supra.
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coram nobis relief.3 The circuit court, also without making specific written findings, could
find lack of due diligence absent a hearing. Therefore, the circuit court did not abuse its
discretion in denying the writ. I would affirm.
Contrary to the majority’s opinion today, when this court reinvested jurisdiction in
the circuit court it did not tacitly reject the State’s due-diligence argument. More
importantly, the circuit court could not have known what this court considered and rejected
because the court did not issue a written opinion explaining its reasons or purpose for
reinvesting jurisdiction. Typically, when an error coram nobis claim has apparent merit,
this court has left it to the circuit court to determine the issue of due diligence. See Howard
v. State, 2012 Ark. 177, 403 S.W.3d 38; Cloird v. State, 349 Ark. 33, 38, 76 S.W.3d 813,
816 (2002) (per curiam) (“[F]inally, coram nobis proceedings require the petitioner to show
that he proceeded with due diligence in making application for relief. Accordingly, the trial
court should consider whether petitioner raised the possible Brady violation in a timely
manner.”) (internal citations omitted); see also Larimore v. State, 327 Ark. 271, 281–82, 938
S.W.2d 818, 823 (1997) (“As the trial court considers whether to grant the writ, the
following guidelines are applicable . . . 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.”). The
circuit court could have denied the writ of error coram nobis for lack of due diligence after
reviewing the parties’ motions and the evidence attached thereto. Such an analysis would
not require the circuit court to hold a hearing.
3
Notably, I dissented from the grant of Williams’s petition to reinvest jurisdiction in
the circuit court.
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The majority contends that the circuit court should have explained why it was
denying relief in its written order, but this is inconsistent with our own practice. Just as we
are not required to explain why we reinvest jurisdiction, before today, we have never held
that a circuit court must make written findings of fact in denying or granting a writ of error
coram nobis. Our role is to determine whether the decision denying the writ was an abuse
of discretion because the circuit court acted arbitrarily or groundlessly. Nelson v. State, 2014
Ark. 91, 431 S.W.3d 852. If we conclude that the circuit court’s decision was not an abuse
of discretion, we should affirm irrespective of whether a hearing was held. Because Williams
did not diligently pursue his Brady violation, the circuit court properly denied Williams
relief. Therefore, we should affirm.
Upon considering whether Williams acted with due diligence given the facts he
offered to the circuit court, the circuit court did not abuse its discretion in denying relief.
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; and (3) upon
discovering the fact, he did not delay bringing the petition. Newman v. State, 2009 Ark.
539, 354 S.W.3d 61.
Williams’s allegation of a Brady violation is founded on an exculpatory statement
obtained from his companion, Smith, on the evening of the murder. The statement
provides that Smith was with Williams when the altercation with the victim began but that
he fled the scene shortly after the gun emerged and before the victim was shot.
Under these circumstances, Williams did not exercise due diligence. First, Williams
was aware of all the facts contained in the statement because he witnessed the same events.
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Williams also was aware of Smith’s identity and presence at the scene, and in the exercise
of due diligence, he could have located Smith and called him as a witness at trial.
Finally, Williams unnecessarily delayed bringing the petition. Williams first learned
of Smith’s statement in September 2010, following a Freedom of Information Act request.
Yet he did not file his petition until December 2015, more than five years later. We
previously have held that a five-year delay in requesting error coram nobis relief is not
diligent. Thomas v. State, 367 Ark. 478, 483, 241 S.W.3d 247, 250 (2006) (per curiam).
Williams attempts to circumvent this five-year delay by arguing that he did not have a claim
until 2014 when he received the prosecutor’s file containing the statement. He mistakenly
assumes that a Brady violation arises only after there is evidence that the prosecutor had the
allegedly undisclosed statement. A Brady violation occurs when the State, regardless of
whether it is law enforcement or the prosecutor’s office, withholds evidence. Howard v.
State, 2012 Ark. 177, at 10, 403 S.W.3d at 45. Therefore, even if everything appellant
alleges factually is true, his Brady-violation claim became known to him once he received
the police file and discovered Smith’s statement to police. It is factually irrelevant whether
Smith’s statement turned up in the prosecutor’s file when it was obtained in 2014. Because
the circuit court was correct for denying his writ, I would affirm.
KEMP, C.J., joins.
John C. Williams, for appellant.
Leslie Rutledge, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
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