Cite as 2020 Ark. 336 SUPREME COURT OF ARKANSAS No. CR-07-98
RODNEY LEE MITCHAEL Opinion Delivered: October 15, 2020 PETITIONER
V. PRO SE PETITION FOR WRIT FOR HABEAS CORPUS, MOTION TO STATE OF ARKANSAS RECALL MANDATE TO REINVEST RESPONDENT JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS, AND MOTION FOR JOINDER OF CLAIMS
CRAWFORD COUNTY CIRCUIT COURT [NO. 17CR-06-166]
PETITION FOR WRIT OF HABEAS CORPUS, MOTION TO RECALL THE MANDATE TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS, AND MOTION FOR JOINDER OF CLAIMS DENIED.
SHAWN A. WOMACK, Associate Justice
Rodney Lee Mitchael brings this pro se petition for writ of habeas corpus, motion to
recall mandate1 to reinvest jurisdiction in the trial court to file a petition for writ of error
1 Although Mitchael titled his petition as a motion to recall the mandate to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis, motions to recall the mandate and coram nobis proceedings are not interchangeable. Motions to recall coram nobis, and motion for joinder of claims. In the petition and motion, Mitchael makes
numerous allegations of trial court error and ineffective assistance of counsel. Because we
find that Mitchael’s claims do not establish grounds for the relief he seeks, the petition and
motion are denied together with the motion for joinder of claims.
I. Background
A Crawford County Circuit Court jury convicted Mitchael of rape and terroristic threatening
and sentenced him to 660 months’ imprisonment on the rape charge and 120 months’
imprisonment on the terroristic-threatening charge. A no-merit brief was filed pursuant to
Anders v. California, 386 U.S. 738 (1967), and the Arkansas Court of Appeals affirmed.
Mitchael v. State, No. CR-07-98 (Ark. Ct. App. Jan. 16, 2008). A review of the record2 reflects
that the two victims, aged ten and twelve, testified at trial and identified Mitchael as the
assailant, semen recovered from the crime scene matched Mitchael’s DNA profile, and
Mitchael admitted his guilt to investigators and during testimony at trial.
II. Petition for Writ of Habeas Corpus
the mandate are applicable to redress errors in the appellate process—meaning an error this court made or overlooked while reviewing a case in which the death penalty was imposed. See Ward v. State, 2015 Ark. 61, 455 S.W.3d 818. The death penalty was not imposed in Mitchael’s case, and Mitchael has failed to allege extraordinary circumstances that would permit reopening the case by recalling the mandate in his direct appeal. See Barnett v. State, 2020 Ark. 222, 601 S.W.3d 409. 2 This court may take judicial notice in postconviction proceedings of the record on direct appeal without the need to supplement the record. Reynolds v. State, 2020 Ark. 174, 599 S.W.3d 120. 2 Mitchael has filed his petition for a writ of habeas corpus directly in this court rather
than first proceeding in the circuit court in the county where he is incarcerated. The habeas
corpus statute allows members of this court to issue the writ upon proper application and
further provides that the power of this court to issue writs of habeas corpus shall be
coextensive with the circuit courts. Ark. Code Ann. § 16-112-102(a)(1) (Repl. 2016).
However, this court can require such petitions to be filed first in the circuit court rather than
directly in this court. This court’s long-standing policy has been to require incarcerated
petitioners to address their habeas petitions to the circuit court because the circuit court is
able to immediately hold any hearing that is necessary to determine any material facts in
issue. Consequently, Mitchael must first file his petition for a writ of habeas corpus in the
circuit court in the county where he is incarcerated and may appeal any adverse decision to
this court.
III. Nature of the Writ of Error Coram Nobis
The petition for leave to proceed in the trial court is necessary because the trial court
can only entertain a petition for writ of error coram nobis after a judgment has been affirmed
on appeal if 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,
3 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.
IV. Grounds for the Writ of Error Coram Nobis
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 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.
V. Claims for Relief
Mitchael makes the following claims for coram nobis relief: (1) he was illegally
interrogated, the waiver of rights was falsified, and counsel ineffectively failed to file a motion
to suppress his statement to investigators; (2) the victim was allowed to remain in the
courtroom during the course of trial in violation of the rule; (3) DNA evidence was illegally
obtained, and counsel failed to move to suppress it; (4) counsel ineffectively failed to object
to the prosecutor’s use of his prior convictions during closing argument; (5) he was not 4 convicted of more than four felonies because his prior convictions in Sebastian County
represented one conviction for multiple offenses;3 (6) counsel was ineffective for filing a no-
merit brief; (7) counsel forced him to testify, which led to the admission of his past criminal
history; (8) the prosecutor made inappropriate comments during closing argument, and
counsel failed to object; and (9) the sentence was excessive and was based on an improper
jury instruction regarding the number of Mitchael’s prior felony convictions.
Mitchael does not satisfy any ground for granting the writ because he does not allege
that there was any evidence extrinsic to the record that was hidden from the defense or that
was unknown at the time of trial. Roberts, 2013 Ark. 56, 425 S.W.3d 771. Additionally,
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Cite as 2020 Ark. 336 SUPREME COURT OF ARKANSAS No. CR-07-98
RODNEY LEE MITCHAEL Opinion Delivered: October 15, 2020 PETITIONER
V. PRO SE PETITION FOR WRIT FOR HABEAS CORPUS, MOTION TO STATE OF ARKANSAS RECALL MANDATE TO REINVEST RESPONDENT JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS, AND MOTION FOR JOINDER OF CLAIMS
CRAWFORD COUNTY CIRCUIT COURT [NO. 17CR-06-166]
PETITION FOR WRIT OF HABEAS CORPUS, MOTION TO RECALL THE MANDATE TO REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A PETITION FOR WRIT OF ERROR CORAM NOBIS, AND MOTION FOR JOINDER OF CLAIMS DENIED.
SHAWN A. WOMACK, Associate Justice
Rodney Lee Mitchael brings this pro se petition for writ of habeas corpus, motion to
recall mandate1 to reinvest jurisdiction in the trial court to file a petition for writ of error
1 Although Mitchael titled his petition as a motion to recall the mandate to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis, motions to recall the mandate and coram nobis proceedings are not interchangeable. Motions to recall coram nobis, and motion for joinder of claims. In the petition and motion, Mitchael makes
numerous allegations of trial court error and ineffective assistance of counsel. Because we
find that Mitchael’s claims do not establish grounds for the relief he seeks, the petition and
motion are denied together with the motion for joinder of claims.
I. Background
A Crawford County Circuit Court jury convicted Mitchael of rape and terroristic threatening
and sentenced him to 660 months’ imprisonment on the rape charge and 120 months’
imprisonment on the terroristic-threatening charge. A no-merit brief was filed pursuant to
Anders v. California, 386 U.S. 738 (1967), and the Arkansas Court of Appeals affirmed.
Mitchael v. State, No. CR-07-98 (Ark. Ct. App. Jan. 16, 2008). A review of the record2 reflects
that the two victims, aged ten and twelve, testified at trial and identified Mitchael as the
assailant, semen recovered from the crime scene matched Mitchael’s DNA profile, and
Mitchael admitted his guilt to investigators and during testimony at trial.
II. Petition for Writ of Habeas Corpus
the mandate are applicable to redress errors in the appellate process—meaning an error this court made or overlooked while reviewing a case in which the death penalty was imposed. See Ward v. State, 2015 Ark. 61, 455 S.W.3d 818. The death penalty was not imposed in Mitchael’s case, and Mitchael has failed to allege extraordinary circumstances that would permit reopening the case by recalling the mandate in his direct appeal. See Barnett v. State, 2020 Ark. 222, 601 S.W.3d 409. 2 This court may take judicial notice in postconviction proceedings of the record on direct appeal without the need to supplement the record. Reynolds v. State, 2020 Ark. 174, 599 S.W.3d 120. 2 Mitchael has filed his petition for a writ of habeas corpus directly in this court rather
than first proceeding in the circuit court in the county where he is incarcerated. The habeas
corpus statute allows members of this court to issue the writ upon proper application and
further provides that the power of this court to issue writs of habeas corpus shall be
coextensive with the circuit courts. Ark. Code Ann. § 16-112-102(a)(1) (Repl. 2016).
However, this court can require such petitions to be filed first in the circuit court rather than
directly in this court. This court’s long-standing policy has been to require incarcerated
petitioners to address their habeas petitions to the circuit court because the circuit court is
able to immediately hold any hearing that is necessary to determine any material facts in
issue. Consequently, Mitchael must first file his petition for a writ of habeas corpus in the
circuit court in the county where he is incarcerated and may appeal any adverse decision to
this court.
III. Nature of the Writ of Error Coram Nobis
The petition for leave to proceed in the trial court is necessary because the trial court
can only entertain a petition for writ of error coram nobis after a judgment has been affirmed
on appeal if 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,
3 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.
IV. Grounds for the Writ of Error Coram Nobis
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 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.
V. Claims for Relief
Mitchael makes the following claims for coram nobis relief: (1) he was illegally
interrogated, the waiver of rights was falsified, and counsel ineffectively failed to file a motion
to suppress his statement to investigators; (2) the victim was allowed to remain in the
courtroom during the course of trial in violation of the rule; (3) DNA evidence was illegally
obtained, and counsel failed to move to suppress it; (4) counsel ineffectively failed to object
to the prosecutor’s use of his prior convictions during closing argument; (5) he was not 4 convicted of more than four felonies because his prior convictions in Sebastian County
represented one conviction for multiple offenses;3 (6) counsel was ineffective for filing a no-
merit brief; (7) counsel forced him to testify, which led to the admission of his past criminal
history; (8) the prosecutor made inappropriate comments during closing argument, and
counsel failed to object; and (9) the sentence was excessive and was based on an improper
jury instruction regarding the number of Mitchael’s prior felony convictions.
Mitchael does not satisfy any ground for granting the writ because he does not allege
that there was any evidence extrinsic to the record that was hidden from the defense or that
was unknown at the time of trial. Roberts, 2013 Ark. 56, 425 S.W.3d 771. Additionally,
Mitchael fails to offer facts sufficient to warrant granting leave to proceed in the trial court
for the writ. The application for coram nobis relief must make full disclosure of specific facts
relied on as the basis for the writ. McCullough, 2017 Ark. 292, 528 S.W.3d 833. Mitchael’s
allegations are conclusory, and he does not offer factual support for his claims. We are not
required to accept the allegations in a petition for writ of error coram nobis at face value.
Joiner v. State, 2020 Ark. 126, 596 S.W.3d 7. Finally, Mitchael’s claims for relief are not
cognizable in coram nobis proceedings.
Mitchael’s claims that counsel was ineffective are not grounds for the writ. Coram
nobis proceedings are not to be used as a substitute for timely raising claims of ineffective
3 Mitchael’s reliance on our holding in Tackett v. State, 298 Ark. 20, 766 S.W.2d 410 (1989), for the proposition that multiple offenses within one prior conviction cannot be separately used for purposes of enhancing a sentence under the habitual-offender statute is misplaced. See Smith v. State, 351 Ark. 468, 95 S.W.3d 801 (2003). 5 assistance of counsel under our postconviction rule, Arkansas Rule of Criminal Procedure
37.1. McCullough v. State, 2020 Ark. 49. Mitchael’s additional claims are also not grounds
for issuance of the writ. Assertions of trial error that could have been raised at trial are not
within the purview of a coram nobis proceeding. Henington v. State, 2020 Ark. 11, 590
S.W.3d 736. Assertions of prosecutorial misconduct during closing argument also could
have been raised at trial and are not allegations of material evidence that was withheld by
the prosecutor. Martinez-Marmol v. State, 2018 Ark. 273, 544 S.W.3d 49. Mitchael’s claim
regarding his excessive and erroneous habitual-offender sentence represents a claim that his
sentence was illegal or illegally imposed. A writ of error coram nobis is not the proper remedy
to challenge an allegedly illegal sentence. Key v. State, 2019 Ark. 202, 575 S.W.3d 554.
Petition for writ of habeas corpus, motion to recall the mandate to reinvest
jurisdiction in the trial court to consider a petition for writ of error coram nobis, and motion
for joinder of claims denied.
Rodney Lee Mitchael, pro se petitioner.
Leslie Rutledge, Att’y Gen., by: David L. Eanes Jr., Ass’t Att’y Gen., for appellee.