Cite as 2020 Ark. 298 SUPREME COURT OF ARKANSAS No. CR-96-428
LARRY RAYFORD Opinion Delivered: October 1, 2020 PETITIONER
V. PRO SE FIFTH PETITION TO REINVEST JURISDICTION IN THE STATE OF ARKANSAS TRIAL COURT TO CONSIDER A RESPONDENT PETITION FOR WRIT OF ERROR CORAM NOBIS OR OTHER EXTRAORDINARY RELIEF [ASHLEY COUNTY CIRCUIT COURT, NO. 02CR- 93-18]
PETITION DENIED.
COURTNEY RAE HUDSON, Associate Justice
Petitioner Larry Rayford brings this fifth petition to reinvest jurisdiction in the trial
court to consider a petition for writ of error coram nobis or, alternatively, for other
extraordinary relief in the form of a writ of certiorari. In the petition, Rayford contends
that he is entitled to these two forms of extraordinary relief because the prosecutor who
had signed the information was subsequently elected to the circuit court and entered a
posttrial order that Rayford contends nullifies his conviction. We disagree and deny the
petition.
A jury found Rayford guilty of capital murder and sentenced him to life
imprisonment without parole. This court affirmed the judgment. Rayford v. State, 326 Ark.
656, 934 S.W.2d 496 (1996). Subsequently, Rayford sought postconviction relief without success, including filing four previous petitions to reinvest jurisdiction in the trial court to
consider a petition for writ of error coram nobis.1
The petition for leave to proceed in the trial court is necessary because 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. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore,
341 Ark. 397, 17 S.W.3d 87 (2000). Coram nobis proceedings are attended by a strong
presumption that the judgment of conviction is valid. Green v. State, 2016 Ark. 386, 502
S.W.3d 524. 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. Newman, 2009 Ark. 539, 354 S.W.3d 61. 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. Pitts v. State, 336 Ark. 580, 986 S.W.2d
407 (1999). 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
1 Rayford v. State, 2018 Ark. 183, 546 S.W.3d 475; Rayford v. State, 2011 Ark. 86; Rayford v. State, CR-96-428 (Ark. Feb. 14, 2008) (unpublished per curiam); Rayford v. State, CR-96-428 (Ark. Mar. 4, 2004) (unpublished per curiam). 2 during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403
S.W.3d 38. 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. McCullough v. State, 2017 Ark. 292, 528 S.W.3d 833.
A successive application for coram nobis relief is an abuse of the writ if the
petitioner alleges no fact sufficient to distinguish his or her claims in a successive petition
from the claims in a prior petition. Joiner v. State, 2020 Ark. 126, 596 S.W.3d 7. Even if
additional facts are presented in support of the same grounds, a court has the discretion to
determine whether the renewal of a petitioner’s application for the writ will be permitted.
Id.
In his error coram nobis petition, Rayford contends that he is entitled to relief
because the circuit judge, Sam Pope, entered a posttrial order over a year after Rayford’s
judgment of conviction was entered by the judge who had presided over Rayford’s criminal
trial. Judge Pope’s order declared Rayford indigent and directed the court reporter to
produce the direct-appeal record at public expense. The order also reflects that Judge Pope
had recused himself from any other matters pertaining to Rayford’s conviction and appeal.
Rayford contends that because Judge Pope had previously been the prosecutor who signed
the information charging Rayford with the crime, Judge Pope did not have the authority to
enter the posttrial order. According to Rayford, Judge Pope should have been prohibited
from entering any orders in connection with Rayford’s criminal proceedings in accordance
with the Canons of Judicial Conduct, and the failure to do so nullified his conviction.
3 As stated above, Rayford has filed multiple petitions for coram nobis relief, and this
petition is Rayford’s fifth. In Rayford’s pro se second petition for coram nobis relief, he
argued that his conviction was the result of prosecutorial and judicial misconduct based on
the same allegations that he has set forth in this fifth petition. Rayford v. State, CR-96-428
(Ark. Feb. 14, 2008) (unpublished per curiam). In that case, we held that Rayford’s
allegations of error did not serve the function of the writ. In this pending petition, Rayford
has framed his argument in the context of Judge Pope’s lack of authority to enter the
posttrial order rather than in the context of judicial and prosecutorial misconduct. Even
so, Rayford has not alleged facts sufficient to distinguish his recent claim from the one
made in his prior petition. Joiner, 2020 Ark. 126, 596 S.W.3d 7. In sum, Rayford’s petition
is an abuse of the writ and is subject to dismissal. Id.
Alternatively, Rayford seeks relief in the form of a petition for writ of certiorari.
There are two requirements that must be satisfied for this court to grant a writ of certiorari.
Pedraza v. Circuit Court of Drew Cty., 2013 Ark. 116, 426 S.W.3d 441. First, there can be no
other adequate remedy but for the writ of certiorari. Id. Second, a writ of certiorari lies only
where (1) it is apparent on the face of the record that there has been a plain, manifest,
clear, and gross abuse of discretion, or (2) there is a lack of jurisdiction, an act in excess of
jurisdiction on the face of the record, or the proceedings are erroneous on the face of the
record. Id. Certiorari will not be used to reverse a trial court’s discretionary authority and a
decision of recusal is a discretionary one. Manila Sch. Dist. No. 15 v. Wagner, 357 Ark. 20,
159 S.W.3d 285 (2004). 4 Rayford contends that Judge Pope’s failure to recuse himself in a posttrial matter
that was extraneous to the underlying judgment of conviction rendered the order signed by
Judge Pope void and, in turn, invalidated the judgment of conviction. Rayford is mistaken.
Judge Pope entered an order favorable to Rayford for the purpose of preserving
Rayford’s right to appeal his conviction and recused himself from any further proceedings
in Rayford’s criminal appeal.
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Cite as 2020 Ark. 298 SUPREME COURT OF ARKANSAS No. CR-96-428
LARRY RAYFORD Opinion Delivered: October 1, 2020 PETITIONER
V. PRO SE FIFTH PETITION TO REINVEST JURISDICTION IN THE STATE OF ARKANSAS TRIAL COURT TO CONSIDER A RESPONDENT PETITION FOR WRIT OF ERROR CORAM NOBIS OR OTHER EXTRAORDINARY RELIEF [ASHLEY COUNTY CIRCUIT COURT, NO. 02CR- 93-18]
PETITION DENIED.
COURTNEY RAE HUDSON, Associate Justice
Petitioner Larry Rayford brings this fifth petition to reinvest jurisdiction in the trial
court to consider a petition for writ of error coram nobis or, alternatively, for other
extraordinary relief in the form of a writ of certiorari. In the petition, Rayford contends
that he is entitled to these two forms of extraordinary relief because the prosecutor who
had signed the information was subsequently elected to the circuit court and entered a
posttrial order that Rayford contends nullifies his conviction. We disagree and deny the
petition.
A jury found Rayford guilty of capital murder and sentenced him to life
imprisonment without parole. This court affirmed the judgment. Rayford v. State, 326 Ark.
656, 934 S.W.2d 496 (1996). Subsequently, Rayford sought postconviction relief without success, including filing four previous petitions to reinvest jurisdiction in the trial court to
consider a petition for writ of error coram nobis.1
The petition for leave to proceed in the trial court is necessary because 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. A writ of error coram nobis is an extraordinarily rare remedy. State v. Larimore,
341 Ark. 397, 17 S.W.3d 87 (2000). Coram nobis proceedings are attended by a strong
presumption that the judgment of conviction is valid. Green v. State, 2016 Ark. 386, 502
S.W.3d 524. 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. Newman, 2009 Ark. 539, 354 S.W.3d 61. 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. Pitts v. State, 336 Ark. 580, 986 S.W.2d
407 (1999). 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
1 Rayford v. State, 2018 Ark. 183, 546 S.W.3d 475; Rayford v. State, 2011 Ark. 86; Rayford v. State, CR-96-428 (Ark. Feb. 14, 2008) (unpublished per curiam); Rayford v. State, CR-96-428 (Ark. Mar. 4, 2004) (unpublished per curiam). 2 during the time between conviction and appeal. Howard v. State, 2012 Ark. 177, 403
S.W.3d 38. 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. McCullough v. State, 2017 Ark. 292, 528 S.W.3d 833.
A successive application for coram nobis relief is an abuse of the writ if the
petitioner alleges no fact sufficient to distinguish his or her claims in a successive petition
from the claims in a prior petition. Joiner v. State, 2020 Ark. 126, 596 S.W.3d 7. Even if
additional facts are presented in support of the same grounds, a court has the discretion to
determine whether the renewal of a petitioner’s application for the writ will be permitted.
Id.
In his error coram nobis petition, Rayford contends that he is entitled to relief
because the circuit judge, Sam Pope, entered a posttrial order over a year after Rayford’s
judgment of conviction was entered by the judge who had presided over Rayford’s criminal
trial. Judge Pope’s order declared Rayford indigent and directed the court reporter to
produce the direct-appeal record at public expense. The order also reflects that Judge Pope
had recused himself from any other matters pertaining to Rayford’s conviction and appeal.
Rayford contends that because Judge Pope had previously been the prosecutor who signed
the information charging Rayford with the crime, Judge Pope did not have the authority to
enter the posttrial order. According to Rayford, Judge Pope should have been prohibited
from entering any orders in connection with Rayford’s criminal proceedings in accordance
with the Canons of Judicial Conduct, and the failure to do so nullified his conviction.
3 As stated above, Rayford has filed multiple petitions for coram nobis relief, and this
petition is Rayford’s fifth. In Rayford’s pro se second petition for coram nobis relief, he
argued that his conviction was the result of prosecutorial and judicial misconduct based on
the same allegations that he has set forth in this fifth petition. Rayford v. State, CR-96-428
(Ark. Feb. 14, 2008) (unpublished per curiam). In that case, we held that Rayford’s
allegations of error did not serve the function of the writ. In this pending petition, Rayford
has framed his argument in the context of Judge Pope’s lack of authority to enter the
posttrial order rather than in the context of judicial and prosecutorial misconduct. Even
so, Rayford has not alleged facts sufficient to distinguish his recent claim from the one
made in his prior petition. Joiner, 2020 Ark. 126, 596 S.W.3d 7. In sum, Rayford’s petition
is an abuse of the writ and is subject to dismissal. Id.
Alternatively, Rayford seeks relief in the form of a petition for writ of certiorari.
There are two requirements that must be satisfied for this court to grant a writ of certiorari.
Pedraza v. Circuit Court of Drew Cty., 2013 Ark. 116, 426 S.W.3d 441. First, there can be no
other adequate remedy but for the writ of certiorari. Id. Second, a writ of certiorari lies only
where (1) it is apparent on the face of the record that there has been a plain, manifest,
clear, and gross abuse of discretion, or (2) there is a lack of jurisdiction, an act in excess of
jurisdiction on the face of the record, or the proceedings are erroneous on the face of the
record. Id. Certiorari will not be used to reverse a trial court’s discretionary authority and a
decision of recusal is a discretionary one. Manila Sch. Dist. No. 15 v. Wagner, 357 Ark. 20,
159 S.W.3d 285 (2004). 4 Rayford contends that Judge Pope’s failure to recuse himself in a posttrial matter
that was extraneous to the underlying judgment of conviction rendered the order signed by
Judge Pope void and, in turn, invalidated the judgment of conviction. Rayford is mistaken.
Judge Pope entered an order favorable to Rayford for the purpose of preserving
Rayford’s right to appeal his conviction and recused himself from any further proceedings
in Rayford’s criminal appeal. Judge Pope’s action in the matter was discretionary and is not
subject to certiorari—–particularly when the issue is raised years after the fact. As stated
above, disqualification is discretionary with the judge himself, and the decision will not be
reversed absent some abuse of that discretion. Woods v. State, 278 Ark. 271, 644 S.W.2d
937 (1983). To gain issuance of the writ, a plain and gross abuse of discretion must be
demonstrated. Pedraza, 2013 Ark. 116, 426 S.W.3d 441. Judge Pope did not commit a
gross and manifest abuse of discretion by entering an order designed to preserve Rayford’s
rights on appeal. In any event, Rayford could have objected when the order was entered by
Judge Pope. The disqualification of a judge may be waived by the failure to timely object.
Worth v. Benton Cty. Circuit Court, 351 Ark. 149, 89 S.W.3d 891 (2002).
Petition denied.
Larry Rayford, pro se petitioner.
Leslie Rutledge, Att’y Gen., by: Vada Berger, Sr. Ass’t Att’y Gen., for respondent.