Cite as 2014 Ark. 15
SUPREME COURT OF ARKANSAS No. CR-03-1319
Opinion Delivered January 16, 2014 EDDIE LEE PATRICK, JR. PRO SE PETITION TO REINVEST PETITIONER JURISDICTION IN THE CIRCUIT COURT TO CONSIDER A PETITION v. FOR WRIT OF ERROR CORAM NOBIS [JEFFERSON COUNTY CIRCUIT STATE OF ARKANSAS COURT, 35CR-02-765] RESPONDENT
PETITION DENIED.
PER CURIAM
In 2003, petitioner Eddie Lee Patrick, Jr., was found guilty by a jury of rape and
terroristic threatening in the first-degree. An aggregate sentence of 480 months’ imprisonment
was imposed. The Arkansas Court of Appeals affirmed. Patrick v. State, CR-03-1319 (Ark. App.
Feb. 7, 2007) (unpublished).
Petitioner has now filed a petition in this court requesting that jurisdiction be reinvested
in the trial court so that he may proceed with a petition for writ of error coram nobis. A petition
for leave to proceed in the trial court is necessary because the circuit court can entertain a
petition for writ of error coram nobis after a judgment has been affirmed on appeal only after
we grant permission. Charland v. State, 2013 Ark. 452 (per curiam); Cromeans v. State, 2013 Ark.
273 (per curiam); Burks v. State, 2013 Ark. 188 (per curiam).
A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial
than its approval. Cromeans, 2013 Ark. 273; Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. The
writ is allowed only under compelling circumstances to achieve justice and to address errors of Cite as 2014 Ark. 15
the most fundamental nature. McDaniels v. State, 2012 Ark. 465 (per curiam). We have held that
a writ of error coram nobis is available to address certain errors that are found in one of four
categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the
prosecutor, or a third-party confession to the crime during the time between conviction and
appeal. Charland, 2013 Ark. 452; Cromeans, 2013 Ark. 273; Pitts v. State, 336 Ark. 580, 986 S.W.2d
407 (1999) (per curiam). 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 circuit court and which, through no negligence or fault of the defendant, was not brought
forward before rendition of judgment. McFerrin v. State, 2012 Ark. 305 (per curiam); Cloird v.
State, 2011 Ark. 303 (per curiam). The petitioner has the burden of demonstrating a
fundamental error of fact extrinsic to the record. Williams v. State, 2011 Ark. 541 (per curiam).
Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction
is valid. Roberts v. State, 2013 Ark. 56, ___ S.W.3d ___; Carter v. State, 2012 Ark. 186 (per
curiam); Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984) (citing Troglin v. State, 257 Ark. 644,
519 S.W.2d 740 (1975)).
As grounds for the writ, petitioner first contends that he was deprived of a “fair process
of direct appeal” because his appellate attorney filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), asserting that the appeal was wholly without merit. The claim is not a ground
for the writ. The filing of an Anders brief does not fit within the purview of a coram-nobis
proceeding. Cromeans, 2013 Ark. 273.
Petitioner next argues that the State withheld exculpatory evidence from the defense.
2 Cite as 2014 Ark. 15
Suppression of material exculpatory evidence by a prosecutor falls within one of the four
categories of coram-nobis relief. Pitts, 336 Ark. 580, 986 S.W.2d 407. The Supreme Court in
Brady v. Maryland, 373 U.S. 83 (1963) held that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material to guilt
or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87.
In Stickler v. Greene, 527 U.S. 263 (1999), the Court revisited Brady and declared that evidence is
material “if there is a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.” 527 U.S. at 280 (quoting United States
v. Bagley, 473 U.S. 667, 682 (1985)). In Stickler, 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) that the evidence must have been suppressed by the
State, either willfully or inadvertently; and (3) prejudice must have ensued. Stickler, 527 U.S. 263;
Buchanan v. State, 2010 Ark. 285 (per curiam).
Petitioner’s allegation of a Brady violation primarily pertains to DNA evidence on a swab
from the rape kit used to examine the victim. Petitioner contends that the prosecution did not
let the defense know that there was a DNA profile on the swab that did not match petitioner’s
DNA. The claim must fail because it is clear from the trial record that the defense was aware
at the time of trial of the results of the DNA testing conducted by the Arkansas State Crime
Laboratory. Counsel for petitioner filed a pretrial motion that mentioned that petitioner’s DNA
was not contained in the samples submitted for testing in the rape kit and that the DNA of a
unknown person was present in the samples. A forensic biologist at trial presented the results
3 Cite as 2014 Ark. 15
of the DNA testing of the rape kit. In light of the references in the trial record to the exact
information that petitioner alleges was hidden from the defense, petitioner has not established
that the State concealed any evidence related to DNA testing.
Petitioner further seems to assert that a laboratory report on a “microscopic hair” was
not provided to the defense. The claim is also not borne out by the record, which contains
numerous mentions of the hairs on which microscopic analysis was conducted. If there was
some other report not alluded to in the record, petitioner has not provided any factual
substantiation for the claim that it existed and was somehow hidden from the defense. He,
therefore, has not met his burden of demonstrating a ground for the writ. See Demeyer v. State,
2013 Ark. 456 (per curiam).
The fact that the trial record is replete with references to the DNA and hair evidence that
petitioner contends was withheld in violation of Brady, and the fact that petitioner
simultaneously concedes that the DNA and hair evidence was available at the time of trial
suggest that petitioner may have misconstrued Brady. It does not appear that the allegations are
in actuality based on the assertion that the State withheld the evidence. Instead, the claims
appear to be based on the contention that the evidence was insufficient to prove that petitioner
had perpetrated a forcible rape. For example, petitioner argues that the finding of his hair on
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Cite as 2014 Ark. 15
SUPREME COURT OF ARKANSAS No. CR-03-1319
Opinion Delivered January 16, 2014 EDDIE LEE PATRICK, JR. PRO SE PETITION TO REINVEST PETITIONER JURISDICTION IN THE CIRCUIT COURT TO CONSIDER A PETITION v. FOR WRIT OF ERROR CORAM NOBIS [JEFFERSON COUNTY CIRCUIT STATE OF ARKANSAS COURT, 35CR-02-765] RESPONDENT
PETITION DENIED.
PER CURIAM
In 2003, petitioner Eddie Lee Patrick, Jr., was found guilty by a jury of rape and
terroristic threatening in the first-degree. An aggregate sentence of 480 months’ imprisonment
was imposed. The Arkansas Court of Appeals affirmed. Patrick v. State, CR-03-1319 (Ark. App.
Feb. 7, 2007) (unpublished).
Petitioner has now filed a petition in this court requesting that jurisdiction be reinvested
in the trial court so that he may proceed with a petition for writ of error coram nobis. A petition
for leave to proceed in the trial court is necessary because the circuit court can entertain a
petition for writ of error coram nobis after a judgment has been affirmed on appeal only after
we grant permission. Charland v. State, 2013 Ark. 452 (per curiam); Cromeans v. State, 2013 Ark.
273 (per curiam); Burks v. State, 2013 Ark. 188 (per curiam).
A writ of error coram nobis is an extraordinarily rare remedy, more known for its denial
than its approval. Cromeans, 2013 Ark. 273; Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. The
writ is allowed only under compelling circumstances to achieve justice and to address errors of Cite as 2014 Ark. 15
the most fundamental nature. McDaniels v. State, 2012 Ark. 465 (per curiam). We have held that
a writ of error coram nobis is available to address certain errors that are found in one of four
categories: insanity at the time of trial, a coerced guilty plea, material evidence withheld by the
prosecutor, or a third-party confession to the crime during the time between conviction and
appeal. Charland, 2013 Ark. 452; Cromeans, 2013 Ark. 273; Pitts v. State, 336 Ark. 580, 986 S.W.2d
407 (1999) (per curiam). 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 circuit court and which, through no negligence or fault of the defendant, was not brought
forward before rendition of judgment. McFerrin v. State, 2012 Ark. 305 (per curiam); Cloird v.
State, 2011 Ark. 303 (per curiam). The petitioner has the burden of demonstrating a
fundamental error of fact extrinsic to the record. Williams v. State, 2011 Ark. 541 (per curiam).
Coram-nobis proceedings are attended by a strong presumption that the judgment of conviction
is valid. Roberts v. State, 2013 Ark. 56, ___ S.W.3d ___; Carter v. State, 2012 Ark. 186 (per
curiam); Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984) (citing Troglin v. State, 257 Ark. 644,
519 S.W.2d 740 (1975)).
As grounds for the writ, petitioner first contends that he was deprived of a “fair process
of direct appeal” because his appellate attorney filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), asserting that the appeal was wholly without merit. The claim is not a ground
for the writ. The filing of an Anders brief does not fit within the purview of a coram-nobis
proceeding. Cromeans, 2013 Ark. 273.
Petitioner next argues that the State withheld exculpatory evidence from the defense.
2 Cite as 2014 Ark. 15
Suppression of material exculpatory evidence by a prosecutor falls within one of the four
categories of coram-nobis relief. Pitts, 336 Ark. 580, 986 S.W.2d 407. The Supreme Court in
Brady v. Maryland, 373 U.S. 83 (1963) held that “the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material to guilt
or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87.
In Stickler v. Greene, 527 U.S. 263 (1999), the Court revisited Brady and declared that evidence is
material “if there is a reasonable probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different.” 527 U.S. at 280 (quoting United States
v. Bagley, 473 U.S. 667, 682 (1985)). In Stickler, 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) that the evidence must have been suppressed by the
State, either willfully or inadvertently; and (3) prejudice must have ensued. Stickler, 527 U.S. 263;
Buchanan v. State, 2010 Ark. 285 (per curiam).
Petitioner’s allegation of a Brady violation primarily pertains to DNA evidence on a swab
from the rape kit used to examine the victim. Petitioner contends that the prosecution did not
let the defense know that there was a DNA profile on the swab that did not match petitioner’s
DNA. The claim must fail because it is clear from the trial record that the defense was aware
at the time of trial of the results of the DNA testing conducted by the Arkansas State Crime
Laboratory. Counsel for petitioner filed a pretrial motion that mentioned that petitioner’s DNA
was not contained in the samples submitted for testing in the rape kit and that the DNA of a
unknown person was present in the samples. A forensic biologist at trial presented the results
3 Cite as 2014 Ark. 15
of the DNA testing of the rape kit. In light of the references in the trial record to the exact
information that petitioner alleges was hidden from the defense, petitioner has not established
that the State concealed any evidence related to DNA testing.
Petitioner further seems to assert that a laboratory report on a “microscopic hair” was
not provided to the defense. The claim is also not borne out by the record, which contains
numerous mentions of the hairs on which microscopic analysis was conducted. If there was
some other report not alluded to in the record, petitioner has not provided any factual
substantiation for the claim that it existed and was somehow hidden from the defense. He,
therefore, has not met his burden of demonstrating a ground for the writ. See Demeyer v. State,
2013 Ark. 456 (per curiam).
The fact that the trial record is replete with references to the DNA and hair evidence that
petitioner contends was withheld in violation of Brady, and the fact that petitioner
simultaneously concedes that the DNA and hair evidence was available at the time of trial
suggest that petitioner may have misconstrued Brady. It does not appear that the allegations are
in actuality based on the assertion that the State withheld the evidence. Instead, the claims
appear to be based on the contention that the evidence was insufficient to prove that petitioner
had perpetrated a forcible rape. For example, petitioner argues that the finding of his hair on
the victim could not have been absolute proof that a rape had been committed inasmuch as it
could have been deposited on the victim while she was merely fighting with petitioner. He
further argues that there was no proof, presumably in the form of physical injury, that he
engaged in a sex act with the victim by forcible compulsion.
4 Cite as 2014 Ark. 15
If petitioner indeed intended the allegations concerning the DNA and hair testing as
claims that the evidence against him was too weak to support the judgment, the arguments are
essentially a challenge to the sufficiency of the evidence adduced at trial to sustain the judgment.
Issues concerning the sufficiency of the evidence or the credibility of the victim or other
witnesses are not cognizable in coram-nobis proceedings. McDaniels, 2012 Ark. 565. Those
issues are to be settled at trial, and, when appropriate, on the record on direct appeal. Sims v.
State, 2012 Ark. 458 (per curiam).
Although there is no specific time limit for seeking a writ of error coram nobis, due
diligence is required in making an application for relief. McClure v. State, 2013 Ark. 306 (per
curiam). In the absence of a valid excuse for delay, the petition will be denied. Roberts v. State,
2013 Ark. 56 , ___ S.W.3d ___. Due diligence requires that (1) the defendant be unaware of the
fact at the time of the trial; (2) the defendant could not have, in the exercise of due diligence,
presented the fact at trial; and (3) the defendant, after discovering the fact, did not delay bringing
the petition. Id. The requirements are a sequence of events, each of which a petitioner must
show to prove due diligence. Anderson v. State, 2013 Ark. ___, ___ S.W.3d ___. Here, petitioner
has not established that he exercised due diligence in bringing forth his claims, and his petition
would be subject to denial on that basis alone. Smith v. State, 2012 Ark. 403 (per curiam).
Eddie Lee Patrick, Jr., pro se petitioner.
Dustin McDaniel, Att’y Gen., by: Eileen W. Harrison, Ass’t Att’y Gen., for respondent.