Cite as 2021 Ark. 195 SUPREME COURT OF ARKANSAS No. CR-13-122
Opinion Delivered: October 28, 2021 TIMOTHY ALLEN WELLS PETITIONER PRO SE PETITION FOR WRIT OF HABEAS CORPUS, PETITION TO V. REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A STATE OF ARKANSAS PETITION FOR WRIT OF ERROR RESPONDENT CORAM NOBIS AND FOR OTHER RELIEF [GARLAND COUNTY CIRCUIT COURT, NO. 26CR-10-468]
PETITIONS DENIED.
RHONDA K. WOOD, Associate Justice
Petitioner Timothy Allen Wells was convicted of capital murder in furtherance of
aggravated robbery and was sentenced to life imprisonment without parole. This court
affirmed on direct appeal. Wells v. State, 2013 Ark. 389, 430 S.W.3d 65. Wells now petitions
for writ of habeas corpus, to reinvest jurisdiction in the trial court to consider a writ of error
coram nobis, and to recall the mandate. We deny all petitions.
I. Petition for Writ of Habeas Corpus
In his petition for writ of habeas corpus, Wells contends that there was no proof of a
robbery or an aggravated robbery to establish his conviction for capital murder. The habeas
corpus statute allows this court coextensive power with circuit courts to issue the writ upon
proper application. Ark. Code Ann. § 16-112-102(a)(1) (Repl. 2016). Still, this court’s long- standing rule is to require an incarcerated petitioner to file a habeas petition attacking his
sentence in the circuit court in the county where he is incarcerated and then appeal any
adverse decision to this court. Mitchael v. State, 2020 Ark. 336. Consequently, we deny
Wells’s petition for habeas relief.
II. Nature of the Writ of Error Coram Nobis
Wells has five grounds on which he seeks to reinvest jurisdiction in the trial court for
it to consider a writ of error coram nobis. Wells claims that the State (1) illegally obtained
and coerced his confession; (2) improperly charged him by a felony information rather than
an indictment; (3) violated his due-process and Fifth Amendment rights; (4) failed to give an
accomplice-liability instruction; and (5) together with his defense counsel, was untruthful
and failed to disclose evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). None
succeed.
Once this court has affirmed a judgment, a trial court cannot consider a petition for
writ of error coram nobis without our permission. Newman v. State, 2009 Ark. 539, 354
S.W.3d 61. We presume that the judgment of conviction is valid. Green v. State, 2016 Ark.
386, 502 S.W.3d 524. The writ’s function is to secure relief from a judgment rendered while
there existed some fact that would have prevented its rendition had the trial court known it
and which, through no negligence or fault of the defendant, was unknown before the
judgment. Id. The petitioner has the burden of demonstrating a fundamental error of fact
extrinsic to the record. Id. 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
2 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.
A. Confession and Witness Testimony
Wells contends that the State used a coerced confession to support his conviction.
Wells also contends that the State improperly used the uncorroborated testimony of the
State’s witnesses, Jason Smith and David Hughes. These claims fail because he cannot show
either were unknown at the time of trial. A petitioner must present evidence extrinsic to the
record that the State withheld from the defense or was unknown at the time of trial. Jones v.
State, 2020 Ark. 338, 609 S.W.3d 375. Wells does not allege facts about his confession or
the witness testimony that were unknown to him at the time of trial. See Martinez-Marmol v.
State, 2018 Ark. 145, 544 S.W.3d 49.
B. Felony Information
Wells also claims that he was improperly charged by felony information rather than
an indictment. A criminal information is sufficient if it names the defendant, the offense
charged, the statute under which the charge was made, the court, and the county where the
alleged offense occurred, and if it sets forth the main language of the statute and the asserted
facts constituting the offense. Beard v. State, 269 Ark. 16, 598 S.W.2d 72 (1980). This court
has established that there is no constitutional right to be indicted by a grand jury and that
Amendment 21 to the Arkansas Constitution, which permits indictment by information, is
3 constitutional. See McClinton v. State, 2018 Ark. 116, 542 S.W.3d 859; see also Bennett v. State,
307 Ark. 400, 821 S.W.2d 13 (1991). For those reasons, this claim also fails.
C. Violation of Constitutional Rights
Next, Wells asserts that he suffered violations of his due-process and Fifth
Amendment rights, which gives him the right to attack his case and “could even be
question[ed] as subject-matter jurisdiction.” These claims are conclusory and not supported
by any specific argument or facts. We will not grant a writ when the allegations are too vague
and lack the requisite factual support. Jones, 2020 Ark. 338, 609 S.W.3d 375.
D. Accomplice-Liability Instruction
Wells adamantly argues that his conviction is insufficient because it stemmed from
Smith’s testimony. He contends Smith was an accomplice and thus Smith’s testimony
needed corroboration. He also finds fault with the trial court’s lack of declaring Smith an
accomplice. These are issues of possible trial error rather than grounds for the writ. See, e.g.,
Smith v. State, 2020 Ark. 296. Also, Smith’s accomplice status and the nature and extent of
his testimony were facts known at the time of trial which also preclude relief. Joiner v. State,
2019 Ark. 279, 585 S.W.3d 161.
E. Brady Violation
Finally, citing the Model Rules of Professional Conduct, Wells claims that the
prosecutor and his trial counsel “act[ed] amongst themselves” to not challenge the fact that
although the charge was capital murder, “they only raised” murder at trial. In other words,
they agreed to not address an underlying felony or grounds for the “capital” charge. Wells
4 also claims he suffered Brady violations as “to all the so-called” evidence that “they claimed
to have.”
Merely alleging a Brady violation does not justify issuing the writ. Wallace v. State,
2018 Ark. 164, 545 S.W.3d 767. The petitioner must establish what specific evidence the
State withheld. McClinton v. State, 2020 Ark. 153, 597 S.W.3d 647. Wells has no right to
relief on this ground because he identifies no evidence withheld by the prosecutor. Id.; see
Everett v. State, 2021 Ark. 113. The prosecutor’s conduct was known to Wells and thus is not
a claim appropriate for error coram nobis relief. King v. State, 2021 Ark. 84; see Joiner, 2019
Ark.
Free access — add to your briefcase to read the full text and ask questions with AI
Cite as 2021 Ark. 195 SUPREME COURT OF ARKANSAS No. CR-13-122
Opinion Delivered: October 28, 2021 TIMOTHY ALLEN WELLS PETITIONER PRO SE PETITION FOR WRIT OF HABEAS CORPUS, PETITION TO V. REINVEST JURISDICTION IN THE TRIAL COURT TO CONSIDER A STATE OF ARKANSAS PETITION FOR WRIT OF ERROR RESPONDENT CORAM NOBIS AND FOR OTHER RELIEF [GARLAND COUNTY CIRCUIT COURT, NO. 26CR-10-468]
PETITIONS DENIED.
RHONDA K. WOOD, Associate Justice
Petitioner Timothy Allen Wells was convicted of capital murder in furtherance of
aggravated robbery and was sentenced to life imprisonment without parole. This court
affirmed on direct appeal. Wells v. State, 2013 Ark. 389, 430 S.W.3d 65. Wells now petitions
for writ of habeas corpus, to reinvest jurisdiction in the trial court to consider a writ of error
coram nobis, and to recall the mandate. We deny all petitions.
I. Petition for Writ of Habeas Corpus
In his petition for writ of habeas corpus, Wells contends that there was no proof of a
robbery or an aggravated robbery to establish his conviction for capital murder. The habeas
corpus statute allows this court coextensive power with circuit courts to issue the writ upon
proper application. Ark. Code Ann. § 16-112-102(a)(1) (Repl. 2016). Still, this court’s long- standing rule is to require an incarcerated petitioner to file a habeas petition attacking his
sentence in the circuit court in the county where he is incarcerated and then appeal any
adverse decision to this court. Mitchael v. State, 2020 Ark. 336. Consequently, we deny
Wells’s petition for habeas relief.
II. Nature of the Writ of Error Coram Nobis
Wells has five grounds on which he seeks to reinvest jurisdiction in the trial court for
it to consider a writ of error coram nobis. Wells claims that the State (1) illegally obtained
and coerced his confession; (2) improperly charged him by a felony information rather than
an indictment; (3) violated his due-process and Fifth Amendment rights; (4) failed to give an
accomplice-liability instruction; and (5) together with his defense counsel, was untruthful
and failed to disclose evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). None
succeed.
Once this court has affirmed a judgment, a trial court cannot consider a petition for
writ of error coram nobis without our permission. Newman v. State, 2009 Ark. 539, 354
S.W.3d 61. We presume that the judgment of conviction is valid. Green v. State, 2016 Ark.
386, 502 S.W.3d 524. The writ’s function is to secure relief from a judgment rendered while
there existed some fact that would have prevented its rendition had the trial court known it
and which, through no negligence or fault of the defendant, was unknown before the
judgment. Id. The petitioner has the burden of demonstrating a fundamental error of fact
extrinsic to the record. Id. 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
2 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.
A. Confession and Witness Testimony
Wells contends that the State used a coerced confession to support his conviction.
Wells also contends that the State improperly used the uncorroborated testimony of the
State’s witnesses, Jason Smith and David Hughes. These claims fail because he cannot show
either were unknown at the time of trial. A petitioner must present evidence extrinsic to the
record that the State withheld from the defense or was unknown at the time of trial. Jones v.
State, 2020 Ark. 338, 609 S.W.3d 375. Wells does not allege facts about his confession or
the witness testimony that were unknown to him at the time of trial. See Martinez-Marmol v.
State, 2018 Ark. 145, 544 S.W.3d 49.
B. Felony Information
Wells also claims that he was improperly charged by felony information rather than
an indictment. A criminal information is sufficient if it names the defendant, the offense
charged, the statute under which the charge was made, the court, and the county where the
alleged offense occurred, and if it sets forth the main language of the statute and the asserted
facts constituting the offense. Beard v. State, 269 Ark. 16, 598 S.W.2d 72 (1980). This court
has established that there is no constitutional right to be indicted by a grand jury and that
Amendment 21 to the Arkansas Constitution, which permits indictment by information, is
3 constitutional. See McClinton v. State, 2018 Ark. 116, 542 S.W.3d 859; see also Bennett v. State,
307 Ark. 400, 821 S.W.2d 13 (1991). For those reasons, this claim also fails.
C. Violation of Constitutional Rights
Next, Wells asserts that he suffered violations of his due-process and Fifth
Amendment rights, which gives him the right to attack his case and “could even be
question[ed] as subject-matter jurisdiction.” These claims are conclusory and not supported
by any specific argument or facts. We will not grant a writ when the allegations are too vague
and lack the requisite factual support. Jones, 2020 Ark. 338, 609 S.W.3d 375.
D. Accomplice-Liability Instruction
Wells adamantly argues that his conviction is insufficient because it stemmed from
Smith’s testimony. He contends Smith was an accomplice and thus Smith’s testimony
needed corroboration. He also finds fault with the trial court’s lack of declaring Smith an
accomplice. These are issues of possible trial error rather than grounds for the writ. See, e.g.,
Smith v. State, 2020 Ark. 296. Also, Smith’s accomplice status and the nature and extent of
his testimony were facts known at the time of trial which also preclude relief. Joiner v. State,
2019 Ark. 279, 585 S.W.3d 161.
E. Brady Violation
Finally, citing the Model Rules of Professional Conduct, Wells claims that the
prosecutor and his trial counsel “act[ed] amongst themselves” to not challenge the fact that
although the charge was capital murder, “they only raised” murder at trial. In other words,
they agreed to not address an underlying felony or grounds for the “capital” charge. Wells
4 also claims he suffered Brady violations as “to all the so-called” evidence that “they claimed
to have.”
Merely alleging a Brady violation does not justify issuing the writ. Wallace v. State,
2018 Ark. 164, 545 S.W.3d 767. The petitioner must establish what specific evidence the
State withheld. McClinton v. State, 2020 Ark. 153, 597 S.W.3d 647. Wells has no right to
relief on this ground because he identifies no evidence withheld by the prosecutor. Id.; see
Everett v. State, 2021 Ark. 113. The prosecutor’s conduct was known to Wells and thus is not
a claim appropriate for error coram nobis relief. King v. State, 2021 Ark. 84; see Joiner, 2019
Ark. 279, 585 S.W.3d 161. As for his claims against his defense counsel, they were either
known at trial or allegations of ineffective assistance of counsel, neither of which support
issuance of the writ. Smith, 2020 Ark. 408.
III. Recalling the Mandate
Finally, Wells contends that this court should recall the mandate “due to various
errors and constitutional violations having occurred.” Wells, again, argues that it is not clear
that a robbery occurred. Wells fails to meet the criteria to establish the extraordinary
circumstances sufficient to recall the mandate.
Our standard to recall a mandate is set forth in Nooner v. State, 2014 Ark. 296, 438
S.W.3d 233. There are three factors the court considers for recalling a mandate: (1) a defect
in the appellate process, (2) a dismissal in federal court because of unexhausted state-court
claims, and (3) the appeal was a death case that required heightened scrutiny. Robbins v. State,
353 Ark. 556, 114 S.W.3d 217 (2003); Lee v. State, 367 Ark. 84, 88, 238 S.W.3d 52, 55
5 (2006). These factors are not necessarily to be strictly applied but serve as a guide in
determining whether to recall a mandate. Ward v. State, 2015 Ark. 62, 455 S.W.3d 830.
Wells does not meet the criteria set forth in Robbins to establish extraordinary
circumstances sufficient to recall the mandate. Most notably, his sentence is not death. See
Anderson v. Payne, 2021 Ark. 53; Ward, 2015 Ark. 61, 455 S.W.3d 830. Wells also fails to
show that this court overlooked an error during the appellate process that would have
prejudiced the outcome of his case. For these reasons, we deny Wells’s request to recall the
mandate along with the other relief requested.
WOMACK, J., concurs without opinion.
Timothy A. Wells, pro se petitioner.
Leslie Rutledge, Att’y Gen., by: David L. Eanes, Jr., Ass’t Att’y Gen., for respondent.