Buckley v. State, No. CR 01-644 (Ark. 10/11/2007)
| Decision Date | 11 October 2007 |
| Docket Number | No. CR 01-644.,CR 01-644. |
| Parties | GYRONNE BUCKLEY Petitioner v. STATE OF ARKANSAS Respondent |
| Court | Arkansas Supreme Court |
Appeal from the Motion for Leave to file Petition for Writ of Error Coram Nobis [Clark County Circuit Court, CR 99-13].
In 1999, a jury found petitioner Gyronne Buckley guilty of two counts of delivery of a controlled substance, for which he received a sentence of two consecutive life terms. This court reversed and remanded for resentencing. Buckley v. State, 341 Ark. 864, 20 S.W.3d 331 (2000) (Buckley I). Petitioner appealed after resentencing, and the new sentence, two consecutive terms of 336 months' imprisonment, for a total term of 672 months' imprisonment, was then affirmed. Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002) (Buckley II). Petitioner next timely filed in the trial court a petition for postconviction relief under Ark. R. Crim. P. 37.1, which was denied without a hearing. On appeal, this court reversed and remanded. Buckley v. State, CR 04-554 (Ark. June 16, s2005) (per curiam). The trial court conducted a hearing and once again denied postconviction relief. We affirmed. Buckley v. State, CR 06-172 (per curiam).
Petitioner now brings this motion in which he requests this court grant leave to file a petition for writ of error coram nobis.1 Petitioner appears to mistakenly assume that the petition would be filed in this court based upon the trial court's rulings on evidence presented in the Rule 37.1 proceedings. Upon any grant by this court of leave to proceed, a petition for the writ is filed in the trial court so that the trial court may conduct an appropriate evidentiary hearing and provide rulings based upon consideration of the issues presented by, and application of the standards appropriate to, an error coram nobis proceeding. A petition filed in this court 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. Dansby v. State, 343 Ark. 635, 37 S.W.3d 599 (2001) (per curiam). We therefore treat petitioner's motion as a petition to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis.
As the State notes, petitioner's pleading to this court does not address our standards for reinvesting jurisdiction in the trial court to consider a petition for writ of error coram nobis. While petitioner does not address grounds for reinvesting jurisdiction, the petition he has attached does provide the basis under which he claims he is entitled to the writ. In the interest of judicial economy, we will consider the claims for relief in the appended petition as a part of the entire petition presented to this court. Petitioner's three claims are as follows: (1) that two of the police officers that testified at petitioner's trial knowingly gave false testimony concerning their observations of petitioner; (2) that the prosecuting attorney failed to disclose information relating to a false report and perjury committed by another police officer who provided testimony at petitioner's trial; (3) that the State suppressed a videotaped statement of the informant who testified against petitioner.
Coram nobis proceedings are attended by a strong presumption that the judgment of conviction is valid. Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984) (citing Troglin v. State, 257 Ark. 644, 519 S.W.2d 740 (1975)). 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. Cloird v. State, 357 Ark. 446, 182 S.W.3d 477 (2004). For the writ to issue following the affirmance of a conviction, the petitioner must show a fundamental error of fact extrinsic to the record. 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).
There is no specific time limit for seeking a writ of error coram nobis, but 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. Echols v. State, 360 Ark. 332, 201 S.W.3d 890 (2005). Due diligence requires that: (1) the defendant be unaware of the fact at the time of trial; (2) the defendant could not have, in the exercise of due diligence, presented the fact at trial; (3) upon discovering the fact, the defendant did not delay bringing the petition. Id. Petitioner has failed to show due diligence as to his first two claims.
Petitioner's first claim is based upon his allegation that police officers Roy Bethell and Linda Card committed perjury during petitioner's trial. Officers Card and Bethell testified that they observed the confidential informant, Corey Livsey, during the drug transactions from a position at a nearby intersection, and Officer Card stated that she observed the petitioner place his hands on a rafter on the porch. Evidence admitted at trial was found in the rafters during a search following Officer Card's observation of this behavior.
Petitioner asserts that it was physically impossible for the police officers to have made these observations. He references testimony of four attorneys concerning their efforts to duplicate those observations provided during the evidentiary hearing on petitioner's Rule 37.1 petition following remand. Yet the physical condition of the location was known at the time of trial and available to petitioner to assert. In fact, trial counsel was one of the four attorneys who testified at the Rule 37.1 proceeding concerning his efforts to duplicate the observations. Counsel did attempt to impeach the officers during trial concerning their ability to observe the location, although the issue was not raised on direct appeal.
A writ of error coram nobis is 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. Coulter v. State, 365 Ark. 262, 227 S.W.3d 904 (2006); Clark v. State, 358 Ark. 469, 192 S.W.3d 248 (2004). This issue was addressed at trial.
Petitioner's second claim concerns allegations that the prosecution had knowledge of perjury committed by Keith Ray, another police officer who testified at petitioner's trial. In Bragg v. Norris, 128 F. Supp. 2d 587 (E.D. Ark. 2000), the district court detailed misconduct by Officer Ray, which conduct included knowingly giving false testimony against the defendant in that case, that the court found to constitute perjury. Petitioner alleges that the basis for the allegations examined in Bragg were contained in a replevin action, and that the prosecutor had received service on that action before petitioner's trial. Officer Ray's testimony was pivotal to the prosecution's case against petitioner and petitioner claims that, had the prosecution disclosed the information concerning the replevin action, petitioner would have been able to impeach that testimony.
The Bragg decision was handed down in 2000. Petitioner delayed filing his request for error coram nobis relief for over six years. Petitioner argues that our prior decision to remand on the Rule 37.1 petition rejected an argument by the State that foreclosed consideration of claims of prosecutorial misconduct in Rule 37.1 proceedings and mandated such claims be raised by writ of error coram nobis. He contends that our decision in Howard v. State, 367 Ark. 18, ___ S.W.3d ___ (2006), which holds that claims of prosecutorial misconduct are not cognizable in a proceeding pursuant to Rule 37.1, announced a new procedural rule, and that, because we had rejected the State's argument previously, he should be excused from pursuing the writ while he pursued his Rule 37.1 petition.2
Petitioner is mistaken in concluding that we previously addressed any argument concerning his right to initiate a proceeding for writ of error coram nobis on claims of prosecutorial misconduct. In remanding on petitioner's Rule 37.1 petition, we specifically noted that the State conceded the...
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