Moten v. State

Cite as 2016 Ark. 192
SUPREME COURT OF ARKANSAS.
No. CR-10-980
Opinion Delivered April 28, 2016
ROBERT JOSEPH MOTEN
PETITIONER
PRO SE SECOND PETITION TO
V. REINVEST JURISDICTION IN THE
TRIAL COURT TO CONSIDER A
STATE OF ARKANSAS PETITION FOR WRIT OF ERROR
RESPONDENT CORAM NOBIS; PRO SE MOTION
FOR PERMISSION TO FILE A
RESPONSE TO THE STATE’S
RESPONSE
[ARKANSAS COUNTY CIRCUIT
COURT, NO. 01CR-07-109]
PETITION DISMISSED; MOTION
MOOT.
PER CURIAM
Petitioner Robert Joseph Moten is incarcerated in the Arkansas Department of
Correction pursuant to a 2010 judgment reflecting his convictions on one count of first-
degree battery and one count of second-degree battery with an aggregate sentence of 264
months’ imprisonment. Moten was convicted at a bench trial, and the Arkansas Court of
Appeals affirmed his convictions. Moten v. State, 2011 Ark. App. 417. Now before this
court is Moten’s second pro se application to reinvest jurisdiction in the trial court to
consider a petition for writ of error coram nobis, and Moten’s motion for permission to file
a response to the State’s response. For the reasons set forth below, the petition is dismissed
and the motion is moot.
Cite as 2016 Ark. 192
A writ of error coram nobis is an extraordinarily rare remedy more known for its
denial than its approval. Howard v. State, 2012 Ark. 177, at 4, 403 S.W.3d 38, 42–43.
Coram-nobis proceedings are attended by a strong presumption that the judgment of
conviction is valid. Id. 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. Id. The writ is allowed
only under compelling circumstances to achieve justice and to address errors of the most
fundamental nature. Id. 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. Id.
In September 2015, Moten filed in this court his first petition and an amended
petition for coram nobis relief. In the amended petition, Moten alleged that he was entitled
to relief because evidence was withheld by the prosecution in violation of Brady v. Maryland,
373 U.S. 83 (1986). Specifically, Moten alleged that the prosecutor withheld the following
documents: an incident report filed by Officer Allison Davis wherein the victim, Iesha
Timmons, did not identify Moten as her assailant; an affidavit of probable cause subsequently
completed by Detective Duke affirming that Moten had been identified as the assailant by
Timmons; and a criminal-history report of Jonathan Jones, Moten’s friend who was present
at the scene. Moten alleged in his petition that he was prejudiced by the suppression of this
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Cite as 2016 Ark. 192
evidence because the contradiction between Timmons’s initial statement and the probable-
cause affidavit executed by Detective Duke would have undermined the validity of the
arrest warrant and the strength of the State’s case, and evidence of Jones’s criminal history
would have created reasonable doubt by shifting suspicion to Jones as the perpetrator.
We considered the amended petition as a substituted petition and, on January 21,
2016, entered an order that denied relief. We found no Brady violation, noting that
Timmons’s initial failure to identify Moten as her assailant was addressed on cross-
examination at trial and that challenging the probable-cause affidavit for Moten’s arrest
would not have prevented the rendition of the judgment because an illegal arrest, standing
alone, does not vitiate a valid conviction. Moten v. State, 2016 Ark. 18, 479 S.W.3d 546
(per curiam) (citing Chestang v. State, 2015 Ark. 372 (per curiam)).
In his second coram-nobis petition, Moten again makes a Brady claim and identifies
the same evidence that he had identified in his previous petition as being withheld by the
prosecution. Moten advances the same claims but amplifies his factual allegations by
contending that Davis’s incident report would have discredited the State’s key witness, Iesha
Timmons. Otherwise, Moten reiterates the claim that disclosing the probable-cause affidavit
would have demonstrated that Detective Duke had manufactured evidence in support of an
invalid arrest warrant and that disclosing Jones’s criminal history would have implicated
Jones.
We have held that we will not exercise our discretion to permit a successive
application for the writ of error coram nobis if the petitioner is abusing the writ by alleging
the same grounds without additional facts sufficient to provide grounds for the writ. Allen,
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2014 Ark. 368, at 5-6, 440 S.W.3d at 332-33. A court has the discretion to determine
whether the renewal of an application for a coram-nobis petition will be permitted when a
petitioner raises additional facts in support of the same claim for relief. Rodgers v. State, 2013
Ark. 294, at 3–4 (per curiam); see also Jackson v. State, 2010 Ark. 81 (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, Moten alleges the suppression of the same evidence identified in the
first coram-nobis petition. Moten also fails to allege 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. Although expanded in Moten’s second petition, the allegation
that the allegedly suppressed evidence would have discredited Timmons was raised in the
first petition and rejected because Timmons’s failure to initially identify Moten as the
assailant was explored on cross-examination. Moreover, Moten does not add sufficient facts
to explain how challenging an alleged discrepancy in the probable-cause affidavit supporting
his arrest would have prevented the rendition of the judgment. Chestang, 2015 Ark. 372,
at 3. Finally, Moten does not explain how evidence of Jones’ criminal history would have
been admissible at Moten’s trial. Zinger v. State, 313 Ark. 70, 75, 852 S.W.2d 320, 323
(1993) (evidence which does no more than create an inference or conjecture as to another’s
guilt is inadmissible).
Moten 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.
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Moten has again failed to show that the State withheld information that would have resulted
in a different outcome in the proceedings. Accordingly, the petition is dismissed. Because
the petition is dismissed, Moten’s motion to file a response to the State’s response is moot.
Petition dismissed; motion moot.
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