McCullough v. State , 2017 Ark. LEXIS 260 ( 2017 )

Cite as 2017 Ark. 292
SUPREME COURT OF ARKANSAS.
No. CR-05-1183
Opinion Delivered: October 26, 2017
WALTER A. MCCULLOUGH
PETITIONER
PRO SE SECOND PETITION TO
V. REINVEST JURISDICTION IN THE
TRIAL COURT TO CONSIDER A
PETITION FOR WRIT OF ERROR
STATE OF ARKANSAS CORAM NOBIS
[CRAIGHEAD COUNTY CIRCUIT
RESPONDENT COURT, WESTERN DISTRICT, NO.
16JCR-04-820]
PETITION DENIED.
SHAWN A. WOMACK, Associate Justice
Petitioner Walter A. McCullough was convicted of committing a terrorist act and
first degree battery in 2005 and brings his second pro se petition to reinvest jurisdiction in
the trial court to consider a petition for writ of error coram nobis. We deny his petition
because it is without merit.
McCullough alleges again that the State, and his trial counsel, violated Brady v.
Maryland, 373 U.S. 83 (1963), by threatening and intimidating material witnesses from
testifying at trial, not revealing to the defense every person who was interviewed by the
State, and encouraging witnesses to provide false testimony.
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The petition for leave to proceed in the trial court is necessary because the judgment
in McCullough’s case was affirmed,1 and the trial court can entertain a petition for writ of
error coram nobis after a judgment has been affirmed on appeal only after we grant
permission. Newman v. State, 2009 Ark. 539, 354 S.W.3d 61. 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 trial 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. Roberts v. State, 2013 Ark. 56, 425 S.W.3d 771. The writ is allowed
only under 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, or (4) a third-party confession to the
crime during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403
S.W.3d 38.
In making the determination of whether the writ should issue, we look to the
reasonableness of the allegations in the petition and to the existence of the probability of
truth thereof. Id. A writ of error coram nobis is an extraordinarily rare remedy and there
1
McCullough v. State, CACR-05-1183 (Ark. App. Oct. 11, 2006) (unpublished).
2
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is a strong presumption that the judgment of conviction is valid. State v. Larimore, 341 Ark.
397, 17 S.W.3d 87 (2000); Westerman v. State, 2015 Ark. 69, at 4, 456 S.W.3d 374, 376.
A Brady violation is a ground for issuance of the writ and is established when material
evidence favorable to the defense is wrongfully withheld by the State. Isom v. State, 2015
Ark. 225, 462 S.W.3d 662. In Strickler v. Greene, 527 U.S. 263 (1999), the Supreme Court
revisited Brady and declared that, when the petitioner contends that material evidence was
not disclosed to the defense, the petitioner must show that “there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding would
have been different.” Strickler, 527 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) the evidence must have been suppressed by the
State, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler, 527
U.S. 263; Howard, 2012 Ark. 177, at 8, 403 S.W.3d at 45. Impeachment evidence that is
material, as well as exculpatory evidence, falls within the Brady rule. Bagley, 473 U.S. at
676.
To support his claim he attaches the affidavit of Tonya R. Allen, the witness who
was allegedly prevented from testifying at trial, as well as two affidavits that were brought in
his first coram nobis proceeding in 2008.
Allen’s affidavit was sworn May 5, 2017, and avers that she has knowledge of “witness
threats & coercion and intimidation as to the prosecution team’s tactics use [sic] to
wrongfully and illegally convict Walter A. McCullough.” She names two persons whose
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testimony was allegedly suppressed but does not set out what testimony those persons would
have given or the potential significance of that testimony. She also names two witnesses
who testified at McCullough’s trial who she alleges committed perjury. Allen further
alleges, without factual substantiation, that she was “at arraignment as a witness,” but could
not testify because “they said I had a gun charge,” and thus she was discredited as a witness
even though the claim was false. Allen’s affidavit does not state a ground for the writ because
it contains no substantiation for the claim that the State suppressed the testimony of any
potential witness. Such factual substantiation is required to establish a Brady violation. Green
v. State, 2016 Ark. 386, at 7, 502 S.W.3d 524, 529.
The second affidavit, dated January 14, 2009, is that of Bobby Liles, who states that
he originally intended to be a witness for McCullough’s defense but changed his story and
testified for the State after a jailer told him that McCullough had implicated Liles in a “host
of crimes.” Liles further accuses another witness for the State of having lied in his testimony.
Liles states that he, too, gave false testimony in exchange for help from the State with his
own criminal charges. The third affidavit, also dated January 14, 2009, is from James
Lumley. Lumley avows that he was present when Liles signed his affidavit and can attest
that Liles was not coerced into preparing his “affidavit of recantation.” As stated, the
affidavits of both Liles and Lumley were a part of the first coram nobis petition that
McCullough filed in this court in 2008, which we previously addressed.2
2
McCullough attached the affidavits to a supplement to the petition that he filed on
January 26, 2009.
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McCullough has not established a Brady violation. All the allegations are conclusory,
without any factual basis, they are not sufficient to demonstrate that material evidence was
withheld by the State in violation of Brady. The burden is on the petitioner in the
application for coram nobis relief to make a full disclosure of specific facts relied upon and
not to merely state conclusions as to the nature of such facts. See Cloird v. State, 357 Ark.
446, 450, 182 S.W.3d 477, 479 (2004). McCullough has failed to establish that there is a
reasonable probability that the judgment of conviction would not have been rendered or
would have been prevented had specific exculpatory evidence been disclosed at his trial.
Petition denied.
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