Linell v. State, 061820 ARSC, CR-84-9

Docket NºCR-84-9
Opinion JudgeRHONDA K. WOOD, Associate Justice
Party NameCARL LEE LINELL PETITIONER v. STATE OF ARKANSAS RESPONDENT
AttorneyCarl Lee Linell, pro se petitioner. Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for respondent.
Judge PanelJosephine Linker Hart, Justice, dissenting.
Case DateJune 18, 2020
CourtSupreme Court of Arkansas

2020 Ark. 253

CARL LEE LINELL PETITIONER

v.

STATE OF ARKANSAS RESPONDENT

No. CR-84-9

Supreme Court of Arkansas

June 18, 2020

PRO SE PETITION TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS; MOTION FOR APPOINTMENT OF COUNSEL [JEFFERSON COUNTY CIRCUIT COURT, NO. 35CR-83-26]

Carl Lee Linell, pro se petitioner.

Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for respondent.

RHONDA K. WOOD, Associate Justice

Carl Lee Linell petitions this court for permission to file a writ of error coram nobis in the trial court. Additionally, he has filed a motion for appointment of counsel. Linell raises four claims that are not cognizable in a coram nobis proceeding. His fifth claim, an alleged Brady violation, also fails. Because Linell does not demonstrate that he is entitled to coram nobis relief, we deny his petition and the motion for appointment of counsel.

In 1983, a jury convicted Linell of two counts of capital-felony murder for the deaths of Charles and Louise Misho and one count of attempted capital-felony murder of Austin Patterson. The jury sentenced him to life without parole on the murder charges and twenty years' imprisonment for the attempted-murder charge, to be served consecutively. We affirmed on direct appeal. Linell v. State, 283 Ark. 162, 671 S.W.2d 741 (1984) (Linell I). He sought postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure, and we affirmed. Linell v. State, CR 84-9 (Ark. July 7, 1986) (unpublished per curiam) (Linell II).

According to the direct-appeal record, Linell's codefendant, Carvin Thompson, testified at trial and admitted that he and Linell had planned to rob the Mishos. Thompson claimed that Linell shot and killed both victims and shot and wounded Patterson when Patterson approached the scene. Thompson stated that Linell took Louise's purse after the shooting. Patterson testified that he did not see the assailant but saw someone crouching near the scene of the crime whom Patterson was unable to describe as either black or white, male or female.

I. Nature of the Writ

Once a judgment is affirmed on appeal, a trial court cannot proceed with a petition for writ of error coram nobis unless this court grants permission and reinstates jurisdiction. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. A writ of error coram nobis is an extraordinarily rare remedy.  Id.  In coram nobis proceedings, the strong presumption is that the judgment of conviction is valid.  Id.  A petitioner has the burden to demonstrate a fundamental error of fact extrinsic to the record.  Id. The court issues the writ in compelling circumstances to achieve justice and to address errors of the most fundamental nature.  Id. 

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 in violation of Brady v. Maryland, 373 U.S. 83 (1963); or (4) a third-party confession to the crime during the time between conviction and appeal.1 Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. The petitioner must specify the facts relied on and not merely state conclusions. McCullough v. State, 2017 Ark. 292, 528 S.W.3d 833.

II. Claims for Issuance of the Writ

Linell raises four claims that are not cognizable in a proceeding for writ of error coram nobis: ineffective assistance of counsel, violation of right to counsel by obtaining incriminating statements, presentation of false evidence, and cumulative error. None of these claims fall under the four categories listed above. One cannot use a coram nobis proceeding to substitute for claims of ineffective assistance of counsel under Rule 37. McCullough v. State, 2020 Ark. 49. Moreover, challenges to the sufficiency of the evidence constitute a direct attack on the judgment and are not cognizable in a coram nobis proceeding. Carner v. State, 2018 Ark. 20, 535 S.W.3d 634. A coram nobis proceeding is not a means to merely contradict a fact already adjudicated at trial. Joiner v. State, 2019 Ark. 279, 585 S.W.3d 161.

Linell also asserts a Brady violation, which is cognizable in coram nobis proceedings. An allegation alone, however, is not a sufficient basis for error coram nobis relief. Davis v. State, 2019 Ark. 172, 574 S.W.3d 666. To establish a Brady violation, three elements are required: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the State must have suppressed the evidence, either willfully or inadvertently; and (3) prejudice must have ensued. Ivory v. State, 2019 Ark. 386, 589 S.W.3d 378. When a petitioner alleges a Brady violation in coram nobis proceedings, the facts alleged in the petition must establish that there was evidence withheld that was both material and prejudicial. Martinez-Marmol v. State, 2018 Ark. 145, 544 S.W.3d 49. Evidence is material if there is a reasonable probability that, had the State disclosed the evidence, the result of the proceeding would have been different. Id.

Linell's specific Brady claim is that the surviving victim, Patterson, gave a statement that described the shooter as a white male. Linell contends that because he is not Caucasian, this statement would be exculpatory and material evidence. Linell also argues that the statement would contradict Patterson's testimony at trial that he could not identify the race of the shooter. But there is no documentation of Patterson's inconsistent statement. Linell claims that Detective McVay prepared a summary report in which McVay noted a conversation with Sergeant Simmons, who stated that he had interviewed Patterson at the hospital and that Patterson reported that a white male had shot him. Linell contends the State withheld Detective McVay's summary report.

Linell fails to provide the alleged report that would support his claim. He instead alleges that he has been trying to obtain it since 1983. He...

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