Burks v. State Respondent

• Decision Date: 21 April 2011
• Docket Number: No. CR 09-609,CR 09-609
• Citation: 2011 Ark. 173
• Parties: HUTSON BURKS Petitioner v. STATE OF ARKANSAS Respondent
• Court: Arkansas Supreme Court

2011 Ark. 173

HUTSON BURKS Petitioner

v.STATE OF ARKANSAS Respondent

No. CR 09-609

SUPREME COURT OF ARKANSAS

Opinion Delivered April 21, 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 2007-598]

PETITION DENIED.

PER CURIAM

In 2008, a jury found petitioner Hutson Burks guilty of aggravated robbery and theft of property, and it imposed sentences of 324 months' imprisonment and 216 months' imprisonment on the respective charges. This court affirmed the judgment. Burks v. State, 2009 Ark. 598, ___S.W.3d___. Petitioner has now filed a petition in this court seeking leave to file a petition in the circuit court for writ of error coram nobis.¹ Petitioner has failed to show that the writ is warranted, and we therefore deny the petition.

A prisoner who appealed his judgment and who wishes to attack his conviction by means of a petition for writ of error coram nobis must first request that this court reinvest jurisdiction in the trial court. Kelly v. State, 2010 Ark. 180 (per curiam). A petition to reinvest jurisdiction in the trial court is necessary after a judgment has been affirmed on appeal becausethe circuit court may entertain a petition for the writ only after this court grants permission. Id. (citing Mills v. State, 2009 Ark. 463 (per curiam)). This court will grant permission for a petitioner to proceed only when it appears the proposed attack on the judgment is meritorious. Whitham v. State, 2011 Ark. 28 (per curiam); Buckley v. State, 2010 Ark. 154 (per curiam). It is a petitioner's burden to show that the writ is warranted. Scott v. State, 2009 Ark. 437 (per curiam).

In this case, petitioner asserts grounds for the writ on three bases: (1) that after his conviction, it was discovered that the prosecution used illegal means to secure the testimony of witness Emma Mickles; (2) that the prosecution committed violations of the requirements of Brady v. Maryland, 373 U.S. 83 (1963), by failing to provide a pretrial statement of Mickles; (3) that the prosecution committed a Brady violation in failing to provide a statement of petitioner's codefendant, Stella Hill.

A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial than its approval. Whitham v. State, 2011 Ark. 28 (per curiam); Grant v. State, 2010 Ark. 286, ___S.W.3d___(per curiam). The remedy is exceedingly narrow and 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. McCoy v. State, 2011 Ark. 13 (per curiam) (citing Clark v. State, 358 Ark. 469, 192 S.W.3d 248 (2004)). This court has previously recognized that a writ of error coram nobis was available to address errors found in four categories: insanity at thetime of trial; a coerced guilty plea; material evidence withheld by the prosecutor; a third-party confession to the crime during the time between conviction and appeal. Webb v. State, 2009 Ark. 550 (per curiam).

Petitioner's first ground for relief turns on the use of Mickles's testimony. As in his direct appeal, he protests that the prosecution's agreement with Mickles for her testimony was illegal. He alleges that it was only after his conviction that the illegal tactics were discovered and that after his conviction Mickles negotiated a greater reduction in her sentence.² Yet, the issue was not unknown at trial, even if the specific results of the agreement had not been confirmed and this court had not ruled on the legality of the agreement. Trial counsel filed a motion to suppress Mickles's testimony based upon the proposed agreement for a reduced sentence. The issue of whether petitioner was able to effectively cross-examine Mickles was one that was addressed at trial and addressed again on appeal. Petitioner's claim does not fall within one of the recognized categories of error.

Petitioner's next two grounds for the writ concern allegations that the prosecution suppressed statements by Mickles and Hill. Allegations of a Brady violation fall within the third recognized category of error. The fact that petitioner alleges a Brady violation, however, is not alone sufficient to provide a basis for error coram nobis relief. Harris v. State, 2010 Ark. 489 (per curiam). Assuming that withheld evidence meets the requirements of a Brady violationand is both material and prejudicial, in order to justify issuance of the writ, the withheld material evidence must also be such as to have prevented rendition of the judgment had it been known at the time of trial. Thrash v. State, 2011 Ark. 118 (per curiam). To merit relief, a petitioner must demonstrate that there is a reasonable probability that the judgment of conviction would not have been rendered, or would have been prevented, had the information been disclosed at trial. Id.

In neither instance does petitioner identify the specific statement that he contends was suppressed. Counsel was obviously aware that the prosecution was to call Mickles, and the record contains what appears to be a reference to Hill³ during a pretrial hearing in which the prosecutor indicated that he would require more time to obtain information about her testimony implicating petitioner. Defense counsel expressed a request for the witness's statement at that hearing.

Petitioner alleges that there were inconsistencies in Mickles's testimony and the allegedly withheld pretrial statement. But, because he does not identify the statement that he contends was withheld, he has failed to demonstrate that the evidence that he alleges...