Allen v. State , 440 S.W.3d 329 ( 2014 )

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SUPREME COURT OF ARKANSAS
No. CR-95-1042
Opinion Delivered September 11, 2014
DEANGELO ALLEN PRO SE PETITION TO REINVEST
PETITIONER JURISDICTION IN THE TRIAL COURT
TO CONSIDER A PETITION FOR WRIT
V. OF ERROR CORAM NOBIS
[CRITTENDEN COUNTY CIRCUIT
STATE OF ARKANSAS COURT, NO. 18CR-94-1023]
RESPONDENT
PETITION DISMISSED.
PER CURIAM
In 1995, petitioner Deangelo Allen1 was found guilty of capital murder and sentenced to
life imprisonment without parole. We affirmed. Allen v. State, 324 Ark. 1, 918 S.W.2d 699
(1996). Subsequently, petitioner timely filed in the trial court a pro se petition pursuant to
Arkansas Rule of Criminal Procedure 37.1 (1995) seeking to vacate the judgment. The petition
was denied, and the order was affirmed. Allen v. State, CR-96-881 (Ark. Jan. 7, 1999)
(unpublished per curiam).
In 2006, petitioner filed in this court a pro se petition seeking to have jurisdiction
reinvested in the trial court to consider a petition for writ of error coram nobis. The petition
for leave to proceed in the trial court was necessary because the trial court can entertain a
petition for writ of error coram nobis after a judgment has been affirmed on appeal only after
1
Petitioner is also known as D’angelo Allen.
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we grant permission. Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001). The petition was
denied. Allen v. State, CR-95-1042 (Ark. Jan. 18, 2007) (unpublished per curiam).
Now before us is petitioner’s second petition to reinvest jurisdiction in the trial court to
consider a petition for writ of error coram nobis. A writ of error coram nobis is an
extraordinarily rare remedy more known for its denial than its approval. Cromeans v. State, 2013
Ark. 273 (per curiam). Coram-nobis proceedings are attended by a strong presumption that the
judgment of conviction is valid. Greene v. State, 2013 Ark. 251 (per curiam). The function of the
writ is 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 the judgment.
Id. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the
record. Burks v. State, 2013 Ark. 188 (per curiam).
The writ is allowed only under compelling circumstances to achieve justice and to address
errors of the most fundamental nature. Cromeans, 2013 Ark. 273. We have held that a writ of
error coram nobis is available for addressing 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. Wright v. State, 2014 Ark. 25 (per curiam); Greene, 2013 Ark. 251.
In his first coram-nobis petition, petitioner alleged that he was entitled to issuance of the
writ on the ground that the State withheld material evidence from the defense in violation of
Brady v. Maryland, 373 U.S. 83 (1963). The Supreme Court in Brady held that “the suppression
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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. In Strickler v. Greene, 527 U.S. 263 (1999), the Court revisited Brady
and declared that evidence is material “if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding would have been different.” 373 U.S.
at 280 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). In Strickler, the court also set
out the three elements of a true Brady violation: (1) the evidence at issue must be favorable to
the accused, either because it is exculpatory, or because it is impeaching; (2) that the evidence
must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must
have ensued.
The evidence that was alleged in the first petition to have been withheld consisted of a
custodial statement to police made by the State’s “star witness,” Tony McKenzie. McKenzie
testified at petitioner’s trial that he drove with petitioner, Earnest Phillips, and Quincy Wright
to a location in West Memphis where Phillips asked McKenzie to let them out so that he could
“sting a fool,” or rob someone. McKenzie said that later that evening he saw petitioner, Phillips,
and Wright and that, when he picked them up in his car, he noticed that petitioner was
perspiring. He said that Phillips later admitted to him that he had killed a man. Another
witness, Eric Marshall, testified that petitioner had told him that the he and the other two men
had gone to the victim’s house where Phillips had shot the victim. Other witnesses testified that
the house had been ransacked as though someone was looking for something. Petitioner gave
a statement to police that was videotaped and shown to the jury in which he conceded that he
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was in the house but contended that he was not aware that Phillips would kill the victim when
he went there. This court concluded on direct appeal that there was substantial evidence from
which the jury could have found that petitioner aided, or attempted to aid, Phillips and Wright
in the commission of capital murder and that he was more than an innocent bystander.
Petitioner asserted in the first petition that McKenzie agreed in exchange for not being
charged as an accomplice to capital murder to say that Phillips made the “sting a fool” remark
and that petitioner was sweating profusely when he picked the three men up in the vicinity of
the victim’s house after the crime had been committed. Petitioner appended McKenzie’s
affidavit to his petition in which McKenzie averred that he agreed to incriminate petitioner in
exchange for not being charged as an accomplice, that Phillips did not say that he was going to
“sting a fool” before he dropped the three men off, and that petitioner was not sweating when
he saw him after the murder had been committed. Petitioner argued that, without the statement,
which suggested that he had known a robbery was planned by Phillips and that he was perspiring
because he had participated in ransacking the house, there was a reasonable probability that the
jury could have found that there was no advance plan to rob the victim and that Phillips shot
the victim accidently.
We found no Brady violation, noting that McKenzie stated in the affidavit only that he
had lied in the statement he made. McKenzie did not contend that he made some other
statement that the prosecution hid from the defense at trial. The defense was free to question
McKenzie before trial, and McKenzie was subject to cross-examination at trial where defense
counsel was free to question him about the veracity of the statement and his motivation for
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making the statement. Also, petitioner admitted to having been at the house, and witness Eric
Marshall testified that petitioner told him that he, Phillips, and Wright had heard that the victim
had won some money gambling and that they went to the victim’s house and told him that they
had car trouble as an apparent ruse to gain entry. Marshall further said that petitioner was shaky
and tearful when he related the story. In short, there was other evidence implicating petitioner
as an accomplice to the robbery and murder of the victim beyond that adduced from McKenzie.
Under these circumstances, we found that petitioner had failed to show that the State withheld
information that would have resulted in a different outcome in the proceedings.
In the instant petition, petitioner contends that the State coached Tony McKenzie on
what to say and that McKenzie’s testimony at trial did not corroborate Earnest Phillips’s
testimony. Petitioner alleges that, in statements McKenzie made to the police during a custodial
interrogation, McKenzie was compelled by the police officers to say that petitioner was sweating
profusely. Appended to the petition is the same affidavit that was submitted with the first
petition in 2006.
In its response to the petition, the State urges this court to deny relief on the basis that
petitioner raised the same claim in his first coram-nobis petition. We have held that we will not
exercise our discretion to permit a successive application for the writ if the petitioner is abusing
the writ by alleging the same grounds without additional facts sufficient to provide grounds for
the writ. See Burgie v. State, 2013 Ark. 356 (per curiam); see also Rodgers v. State, 2013 Ark. 294 (per
curiam) (“[A] court has the discretion to determine whether the renewal of a petitioner’s
application for the writ, when there are additional facts presented in support of the same
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grounds, will be permitted.”); Jackson v. State, 2010 Ark. 81 (per curiam) (citing Jackson v. State,
2009 Ark. 572 (per curiam)); United States v. Camacho-Bordes, 94 F.3d 1168 (8th Cir. 1996) (res
judicata did not apply to bar a second petition for writ of error coram nobis, but abuse-of-writ
doctrine was applied to subsume res judicata).
Here, as stated, McKenzie’s affidavit is the same affidavit that was submitted with the
first coram-nobis petition in 2006. Even considering the claim that McKenzie was “coached”
by the police, petitioner alleges no facts in the petition now before us that are sufficient to
distinguish his instant claim of a Brady violation from the claim that he advanced in his first
petition. He did not establish a basis for issuance of the writ in his first petition, and his
reassertion of essentially the same claims in the instant petition is a misuse of the remedy.
Petitioner has again failed to show that the State withheld information that would have resulted
in a different outcome in the proceedings.2 Accordingly, the petition is dismissed.
Petition dismissed.
DeAngelo Allen, pro se petitioner.
Dustin McDaniel, Att’y Gen., by: Ashley Argo Priest, Ass’t Att’y Gen., for appellee.
2
Many of petitioner’s allegations are centered on the sufficiency of the evidence or the
credibility of witnesses. Such allegations are not cognizable in coram-nobis proceedings. Patrick
v. State, 2014 Ark. 15 (per curiam). Those issues are to be settled at trial, and, when appropriate,
on the record on direct appeal. Id.; Sims v. State, 2012 Ark. 458 (per curiam).
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