Cite as 2014 Ark. 177
SUPREME COURT OF ARKANSAS No. CR-07-110
KENNETH RAY PITTS Opinion Delivered April 17, 2014 PETITIONER SECOND PRO SE PETITION TO V. REINVEST JURISDICTION IN THE CIRCUIT COURT TO CONSIDER A PETITION FOR WRIT OF ERROR STATE OF ARKANSAS CORAM NOBIS AND MOTION FOR RESPONDENT LEAVE TO FILE AMENDED PETITION [PULASKI COUNTY CIRCUIT COURT, NO. 60CR-05-4343]
PETITION AND MOTION DENIED.
PER CURIAM
In 2006, appellant Kenneth Ray Pitts was found guilty by a jury in the Pulaski County
Circuit Court of second-degree sexual assault and sexual indecency with a child. He was
sentenced as a habitual offender to consecutive sentences of 720 months’ imprisonment for the
charge of second-degree sexual assault and 180 months’ imprisonment for the charge of sexual
indecency with a child. The Arkansas Court of Appeals affirmed. Pitts v. State, CR-07-110 (Ark.
App. Oct. 31, 2007) (unpublished) (original docket no. CACR 07-110). On February 5, 2014,
petitioner filed in this court a pro se petition to reinvest jurisdiction in the circuit court to
consider a petition for writ of error coram nobis, in which he alleged that the circuit court acted
without jurisdiction and that material evidence was withheld by the State; the petition was
denied. Pitts v. State, 2014 Ark. 132, ___ S.W.3d ___ (per curiam).
Prior to the disposition of the February 5 petition, petitioner filed the instant second pro Cite as 2014 Ark. 177
se petition to reinvest jurisdiction in the circuit court to consider a petition for writ of error
coram nobis,1 as well as a pro se motion for leave to file an amended petition. The petition and
motion are denied as petitioner has failed to raise any cognizable claims that would support
issuance of a writ of error coram nobis.
A petition for leave to proceed in the circuit 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. Cromeans v. State, 2013 Ark. 273 (per curiam) (citing
Sparks v. State, 2012 Ark. 464 (per curiam)); Grant v. State, 2010 Ark. 286, 365 S.W.3d 849 (per
curiam) (citing Newman v. State, 2009 Ark. 539, 354 S.W.3d 61). A writ of error coram nobis is
an extraordinarily rare remedy more known for its denial than its approval. Cromeans, 2013 Ark.
273 (citing Howard v. State, 2012 Ark. 177, 403 S.W.3d 38). Coram-nobis proceedings are
attended by a strong presumption that the judgment of conviction is valid. Greene v. State, 2013
Ark. 251 (per curiam) (citing Newman, 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 circuit 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. Williams v. State, 2011 Ark. 541 (per curiam).
The writ is allowed only under compelling circumstances to achieve justice and to address
errors of the most fundamental nature. Cromeans, 2013 Ark. 273 (citing McDaniels v. State, 2012
1 As was the case with the first petition, petitioner’s second petition is assigned the same docket number as the direct appeal from the judgment of conviction.
2 Cite as 2014 Ark. 177
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: (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. Greene, 2013 Ark. 251.
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 valid 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 in 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, 2012 Ark. 270, ___ S.W.3d ___.
As grounds for the writ, petitioner asserts in the second petition that trial counsel was
ineffective in failing to object on the proper basis to testimony presented by the State regarding
a prior offense committed by petitioner. In the motion to amend, petitioner further alleges that
counsel was ineffective in failing to communicate with petitioner, investigate the case, and advise
petitioner of the time limitations in seeking postconviction relief. Allegations of ineffective
assistance of counsel are outside the purview of coram-nobis proceedings. Burgie v. State, 2013
Ark. 356 (per curiam); Cromeans, 2013 Ark. 273; State v. Tejada-Acosta, 2013 Ark. 217, ___ S.W.3d
___ (“[C]oram-nobis proceedings are not to be used as a substitute for claims of ineffective
assistance of counsel.”). Coram-nobis proceedings are not a substitute for proceeding under
3 Cite as 2014 Ark. 177
Arkansas Rule of Criminal Procedure 37.1 even when the deadline for filing a Rule 37 petition
has passed. Nelson v. State, 2014 Ark. 91, ___ S.W.3d ___ (“[F]undamental fairness and due
process do not require an unlimited opportunity to file Rule 37 petitions.”).
In the motion to amend, petitioner seeks to amend the petition with additional claims of
trial error as well as the claim that he was “denied access to the transcript of trial as of [sic]
motion discovery.” To the extent that petitioner wishes to amend his petition to add the
allegation that the State withheld evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963),
his claim would be an abuse of the writ, and we decline to exercise our discretion to permit the
renewal of petitioner’s previous application on this point because petitioner fails to state
additional facts sufficient to provide any grounds for the writ. See Rodgers v. State, 2013 Ark. 294
(per curiam) (“[A] court has the discretion to determine whether the renewal of a petitioner’s
application for the writ, when there are additional facts presented in support of the same
grounds, will be permitted.”); Jackson v. State, 2010 Ark. 81 (per curiam) (citing Jackson v. State,
2009 Ark. 572 (per curiam)); see also 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). Petitioner alleges no facts in the motion to
amend that are sufficient to distinguish his instant claim of a Brady violation from the claim that
he advanced in his February 5 petition. Reassertion of the same claim in a subsequent petition
seeking a writ of error coram nobis is a misuse of the remedy. See Burgie, 2013 Ark. 356.
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Cite as 2014 Ark. 177
SUPREME COURT OF ARKANSAS No. CR-07-110
KENNETH RAY PITTS Opinion Delivered April 17, 2014 PETITIONER SECOND PRO SE PETITION TO V. REINVEST JURISDICTION IN THE CIRCUIT COURT TO CONSIDER A PETITION FOR WRIT OF ERROR STATE OF ARKANSAS CORAM NOBIS AND MOTION FOR RESPONDENT LEAVE TO FILE AMENDED PETITION [PULASKI COUNTY CIRCUIT COURT, NO. 60CR-05-4343]
PETITION AND MOTION DENIED.
PER CURIAM
In 2006, appellant Kenneth Ray Pitts was found guilty by a jury in the Pulaski County
Circuit Court of second-degree sexual assault and sexual indecency with a child. He was
sentenced as a habitual offender to consecutive sentences of 720 months’ imprisonment for the
charge of second-degree sexual assault and 180 months’ imprisonment for the charge of sexual
indecency with a child. The Arkansas Court of Appeals affirmed. Pitts v. State, CR-07-110 (Ark.
App. Oct. 31, 2007) (unpublished) (original docket no. CACR 07-110). On February 5, 2014,
petitioner filed in this court a pro se petition to reinvest jurisdiction in the circuit court to
consider a petition for writ of error coram nobis, in which he alleged that the circuit court acted
without jurisdiction and that material evidence was withheld by the State; the petition was
denied. Pitts v. State, 2014 Ark. 132, ___ S.W.3d ___ (per curiam).
Prior to the disposition of the February 5 petition, petitioner filed the instant second pro Cite as 2014 Ark. 177
se petition to reinvest jurisdiction in the circuit court to consider a petition for writ of error
coram nobis,1 as well as a pro se motion for leave to file an amended petition. The petition and
motion are denied as petitioner has failed to raise any cognizable claims that would support
issuance of a writ of error coram nobis.
A petition for leave to proceed in the circuit 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. Cromeans v. State, 2013 Ark. 273 (per curiam) (citing
Sparks v. State, 2012 Ark. 464 (per curiam)); Grant v. State, 2010 Ark. 286, 365 S.W.3d 849 (per
curiam) (citing Newman v. State, 2009 Ark. 539, 354 S.W.3d 61). A writ of error coram nobis is
an extraordinarily rare remedy more known for its denial than its approval. Cromeans, 2013 Ark.
273 (citing Howard v. State, 2012 Ark. 177, 403 S.W.3d 38). Coram-nobis proceedings are
attended by a strong presumption that the judgment of conviction is valid. Greene v. State, 2013
Ark. 251 (per curiam) (citing Newman, 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 circuit 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. Williams v. State, 2011 Ark. 541 (per curiam).
The writ is allowed only under compelling circumstances to achieve justice and to address
errors of the most fundamental nature. Cromeans, 2013 Ark. 273 (citing McDaniels v. State, 2012
1 As was the case with the first petition, petitioner’s second petition is assigned the same docket number as the direct appeal from the judgment of conviction.
2 Cite as 2014 Ark. 177
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: (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. Greene, 2013 Ark. 251.
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 valid 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 in 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, 2012 Ark. 270, ___ S.W.3d ___.
As grounds for the writ, petitioner asserts in the second petition that trial counsel was
ineffective in failing to object on the proper basis to testimony presented by the State regarding
a prior offense committed by petitioner. In the motion to amend, petitioner further alleges that
counsel was ineffective in failing to communicate with petitioner, investigate the case, and advise
petitioner of the time limitations in seeking postconviction relief. Allegations of ineffective
assistance of counsel are outside the purview of coram-nobis proceedings. Burgie v. State, 2013
Ark. 356 (per curiam); Cromeans, 2013 Ark. 273; State v. Tejada-Acosta, 2013 Ark. 217, ___ S.W.3d
___ (“[C]oram-nobis proceedings are not to be used as a substitute for claims of ineffective
assistance of counsel.”). Coram-nobis proceedings are not a substitute for proceeding under
3 Cite as 2014 Ark. 177
Arkansas Rule of Criminal Procedure 37.1 even when the deadline for filing a Rule 37 petition
has passed. Nelson v. State, 2014 Ark. 91, ___ S.W.3d ___ (“[F]undamental fairness and due
process do not require an unlimited opportunity to file Rule 37 petitions.”).
In the motion to amend, petitioner seeks to amend the petition with additional claims of
trial error as well as the claim that he was “denied access to the transcript of trial as of [sic]
motion discovery.” To the extent that petitioner wishes to amend his petition to add the
allegation that the State withheld evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963),
his claim would be an abuse of the writ, and we decline to exercise our discretion to permit the
renewal of petitioner’s previous application on this point because petitioner fails to state
additional facts sufficient to provide any grounds for the writ. See Rodgers v. State, 2013 Ark. 294
(per curiam) (“[A] court has the discretion to determine whether the renewal of a petitioner’s
application for the writ, when there are additional facts presented in support of the same
grounds, will be permitted.”); Jackson v. State, 2010 Ark. 81 (per curiam) (citing Jackson v. State,
2009 Ark. 572 (per curiam)); see also 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). Petitioner alleges no facts in the motion to
amend that are sufficient to distinguish his instant claim of a Brady violation from the claim that
he advanced in his February 5 petition. Reassertion of the same claim in a subsequent petition
seeking a writ of error coram nobis is a misuse of the remedy. See Burgie, 2013 Ark. 356.
With regard to the remaining allegations that petitioner seeks to add to his second
petition to reinvest jurisdiction, allegations of trial error, even those of constitutional dimension,
4 Cite as 2014 Ark. 177
do not provide a ground to grant a writ of error coram nobis because the claim is clearly an issue
known at the time of trial and could have been raised at trial and on direct appeal. Travis v. State,
2014 Ark. 82 (per curiam); Hooper v. State, 2014 Ark. 16 (per curiam).
Because it is clear from the petition and the motion that petitioner failed to state any
ground for relief cognizable in a proceeding for error coram nobis, we need not consider
whether petitioner proceeded with due diligence in making application for relief. See Nelson,
2014 Ark. 91, ___ S.W.3d ___.
Kenneth Ray Pitts, pro se petitioner.
Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for respondent.