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SUPREME COURT OF ARKANSAS
No. CR-12-644
BOBBY CHARLES NELSON Opinion Delivered February 27, 2014
APPELLANT
APPEAL FROM THE PULASKI
V. COUNTY CIRCUIT COURT
[NO. CR74605]
STATE OF ARKANSAS HONORABLE HERBERT THOMAS
APPELLEE WRIGHT, JR., JUDGE
AFFIRMED.
PAUL E. DANIELSON, Associate Justice
Appellant Bobby Charles Nelson appeals from the order of the Pulaski County Circuit
Court denying his petition for a writ of error coram nobis.1 He asserts two points on appeal:
(1) that the circuit court abused its discretion in denying his petition and (2) that the circuit
court erred in denying his petition without a hearing. We affirm the circuit court’s order.
The instant record reflects that on June 20, 1972, Nelson pled guilty to murder in the
first degree and was sentenced to life imprisonment. On April 9, 2012, Nelson, through
counsel, filed his petition for writ of error coram nobis, which asserted two bases for relief:
(1) that his guilty plea was the product of coercion and was not knowingly, intelligently, or
1
Normally, an appellant must first seek permission in this court to proceed in the
circuit court with a petition for writ of error coram nobis. See, e.g., McJames v. State, 2010
Ark. 74. However, where as here, the judgment of conviction was entered on a plea of guilty
or nolo contendere, the petition for writ of error coram nobis is filed directly with the circuit
court. See id.
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voluntarily entered; and (2) that his guilty plea was further involuntary due to his counsel’s
operating under a conflict of interest by simultaneously representing him and a codefendant
who had competing interests. The circuit court denied Nelson’s petition and found, in
pertinent part:
[T]he defendant’s contention that his plea had been coerced by the threat of the death
penalty was rejected by this Court in the Findings of Fact entered on July 23, 1974.
Lastly, any allegation of ineffective assistance of counsel should have been raised in the
defendant’s Criminal Procedure Rule 1 petition. The defendant’s final two grounds
for relief are also cognizable pursuant to Rule 37, then Rule 1, and should have been
raised in the petition filed April 5, 1974.
The issues raised in the instant petition can be conclusively decided from the
files and records of the case, and an evidentiary hearing is not required.[2]
It is from this order that Nelson now appeals.
On appeal, Nelson argues that he was entitled to a writ of error coram nobis. He
asserts that his trial counsel operated under a conflict of interest that arose when his trial
counsel obtained a plea bargain with the State for his codefendant by which the codefendant
would testify against Nelson in exchange for a lesser sentence. He maintains that because of
that conflict, his trial counsel had to convince him to plead guilty and accept a life sentence
2
The circuit court delineated Nelson’s grounds for the writ as follows:
1. His plea was coerced by the threat of the death penalty, which according to
defendant’s petition had been declared unconstitutional in 1971 by the Supreme Court
of the United States and therefore his attorney was ineffective by advising him that the
death penalty was a possible sentence.
2. His plea was induced by his attorney’s assurance that he would only serve
twenty-one years of a life sentence, which was contrary to law and constituted
ineffective assistance of counsel.
3. His attorney had a conflict of interest in that he also represented a co-
defendant who accepted a plea bargain to a lesser offense in exchange for his testimony
against the defendant.
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since his trial counsel would not have been able to effectively cross-examine his codefendant.
Nelson additionally contends that his trial counsel misrepresented his parole eligibility to him
to further coerce him into pleading guilty. Finally, he urges that the circuit court abused its
discretion in denying his petition without a hearing. The State counters, asserting that
Nelson’s claims are allegations of ineffective assistance of counsel that are not cognizable in
coram nobis proceedings and should have been raised in his previous postconviction
proceedings. It further asserts that Nelson has not shown due diligence in bringing his
petition. We agree with the State that Nelson’s claims are ones not cognizable in a
proceeding for error coram nobis; therefore, no hearing was required on his petition.
Error coram nobis proceedings are attended by a strong presumption that the judgment
of conviction is valid. See Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. The writ of error
coram nobis is an extraordinarily rare remedy, more known for its denial than its approval.
See id. The function of the writ is to secure relief from a judgment rendered while there
existed some fact that would have prevented its rendition had it been known to the trial court
and that, through no negligence or fault of the defendant, was not brought forward before
rendition of judgment. See id. The writ is issued only under compelling circumstances to
achieve justice and to address errors of the most fundamental nature, and it is available to
address only 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. See id.
The standard of review for the denial of a petition for writ of error coram nobis is
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whether the circuit court abused its discretion in granting or denying the writ. See Newman
v. State, 2014 Ark. 7. An abuse of discretion occurs when the circuit court acts arbitrarily or
groundlessly. See id. We have further held that when a petition for writ of error coram nobis
is filed directly in the circuit court, a hearing is not required if the petition clearly has no
merit, either because it fails to state a cause of action to support issuance of the writ, or
because it is clear from the petition that the petitioner did not act with due diligence. See,
e.g., Deaton v. State, 373 Ark. 605, 285 S.W.3d 611 (2008) (per curiam). To determine
whether Nelson should have received a hearing on his petition, this court must necessarily
examine whether Nelson’s petition clearly had no merit, in that it either failed to state a
cognizable claim for error coram nobis relief or in that he did not act with due diligence.
Our review of Nelson’s petition reveals no claim that he is “innocent or that his plea
was coerced in the sense that it was the result of fear, duress, or threats of mob violence as
previously recognized by this court as cognizable in coram nobis relief.” Wright v. State, 2014
Ark. 25, at 5 (per curiam). Nor has Nelson offered any substantiation that he was subjected
to any specific mistreatment; that is, he did not aver he was somehow coerced into appearing
before the court and entering his plea. See Bannister v. State, 2014 Ark. 59 (per curiam);
Edwards v. State, 2013 Ark. 517 (per curiam). The mere pressure to plead guilty occasioned
by the fear of a more severe sentence is not coercion. See, e.g., Pierce v. State, 2009 Ark. 606
(per curiam). Likewise, we have held that erroneous advice concerning parole eligibility does
not automatically render a guilty plea involuntary. See Morgan v. State, 2013 Ark. 341 (per
curiam). With regard to claims involving counsel operating under a conflict of interest, we
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have held that those are ineffective-assistance-of-counsel claims, which are outside the
purview of a coram nobis proceeding. See, e.g., Watts v. State, 2013 Ark. 485 (per curiam);
Gardner v. State, 2011 Ark. 27 (per curiam).
While Nelson attempts to couch his claims in terms of a coerced-guilty plea, it simply
does not alter the fact that the actual basis for his claims is ineffective assistance of counsel.
In his petition, Nelson contended that his “[t]rial counsel coerced [him] into pleading
guilty . . . by (1) exploiting his fear of being sentenced to death and (2) assuring him that he
would only serve twenty-one years of a life sentence, both of which are unfounded.” He
further asserted that his counsel operated under a conflict of interest while defending him,
such that he was deprived of due process. But, merely because Nelson asserts that his claims
involve a coerced guilty plea does not require this court to treat them as such. Instead, this
court routinely looks to the true nature of a petitioner’s claim, rather than how a petitioner
couches the claim. See, e.g., Morgan, 2013 Ark. 341; Benton v. State, 2011 Ark. 211 (per
curiam); Crosby v. State, 2009 Ark. 555 (per curiam); Starling v. State, 2009 Ark. 156 (per
curiam); Nation v. State, 292 Ark. 149, 728 S.W.2d 513 (1987) (per curiam).
Moreover, we have repeatedly held that allegations made in support of error coram
nobis relief that are premised on ineffective-assistance-of-counsel claims are not cognizable
in error coram nobis proceedings. See, e.g., McClure v. State, 2013 Ark. 306 (per curiam);
Cromeans v. State, 2013 Ark. 273 (per curiam); McDaniels v. State, 2012 Ark. 465 (per curiam).
To that end, we have been clear that error coram nobis proceedings are not a substitute for
proceeding under Rule 37.1 to challenge the validity of a guilty plea, nor are the two
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proceedings interchangeable. See, e.g., State v. Tejeda-Acosta, 2013 Ark. 217, ___ S.W.3d ___.
This holds true even when the deadline for filing Rule 37 relief has passed, as fundamental
fairness and due process do not require an unlimited opportunity to file Rule 37 petitions.
See id.
It is clear to this court that Nelson’s claims are actually predicated on allegations of
ineffective assistance of counsel; however, it has been well established by this court that such
allegations are simply not cognizable in a proceeding for error coram nobis. Because Nelson’s
petition did not state a cognizable claim for relief, the circuit court did not abuse its discretion
in denying Nelson’s petition or in deciding the matter without a hearing.3 Accordingly, we
affirm the circuit court’s order.
Affirmed.
BAKER, HART, and HOOFMAN, JJ., dissent.
KAREN R. BAKER, Justice, dissenting. I dissent from the majority opinion because
Nelson’s petition for writ of error coram nobis should be reversed and remanded for a
hearing.
3
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. See Newman v. State, 2009 Ark. 539,
354 S.W.3d 61. In the absence of a valid excuse for delay, the petition will be denied. See id.
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. See id.
Because it is clear that Nelson’s petition failed to state a cognizable basis on which error coram
nobis could issue, we need not address whether it was clear from Nelson’s petition that he did
not act with due diligence. See, e.g., Barker v. State, 2010 Ark. 354, 373 S.W.3d 865 (not
addressing due diligence where the appellant’s petition failed to state a cognizable claim for
coram nobis relief).
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Nelson’s guilty plea to first-degree murder and sentence to life imprisonment stem
from the February 5, 1972 death of Raymond Tuck. Nelson and three other men, Robert
Hill, Jr., Clarence Perry, and Chester Perry, were involved in a fight with Tuck, used their
fists to beat Tuck, and then beat Tuck with a fence board. Tuck died as a result of his
injuries. Hill, Clarence Perry, and Chester Perry each pleaded guilty to accessory to murder
and each was sentenced to a term of ten years’ imprisonment. Each also agreed to testify
against Nelson.
At the time of Nelson’s plea agreement, Nelson had retained and was represented by
Attorney Gene Worsham. After Nelson retained Worsham, Worsham accepted an
appointment from the circuit court to represent Nelson’s codefendant, Hill. Nelson contends
that Worsham secured a 10-year plea agreement for Hill in exchange for Hill’s agreement to
testify against Nelson at trial. Nelson alleges that Hill advised Worsham that Nelson was the
principal actor in Tuck’s murder. Nelson, on the other hand, advised Worsham that Hill was
the principal actor in Tuck’s murder. Based on this conflict, Nelson contends that Worsham
misrepresented Nelson’s sentence and parole eligibility to him, and coerced Nelson to enter
into his plea agreement by asserting that Nelson would be given the death penalty at trial
based on Hill’s testimony. Nelson asserts, however, that at the time of his plea, Nelson was
not privy to Worsham’s representation of Hill. Nelson further asserts that Hill worked as a
carpenter for Worsham for several years, and Hill’s father also worked for Worsham at the
time the two men entered into their respective plea agreements.
The majority affirms the circuit court’s holding that Nelson’s claim is not a cognizable
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claim for a writ of error coram nobis. The majority characterizes Nelson’s assertion of
coercion as a simple claim of conflict of interest and a classic claim of ineffective assistance of
counsel. However, Nelson’s allegations are much more serious than recognized by the
majority. Nelson’s allegation of a coerced guilty plea hinges on Nelson’s reliance on his own
counsel’s advice, when the purpose of that advice was to assist a codefendant also represented
by Worsham, while obliging Nelson to plead guilty, all to Nelson’s detriment. These
circumstances may well evidence Nelson was under duress when he pleaded guilty.
In Holloway v. Arkansas, 435 U.S. 475, 489–90 (1978), the United States Supreme
Court addressed dual representation and explained that
[j]oint representation of conflicting interests is suspect because of what it tends to
prevent the attorney from doing. . . . Generally speaking, a conflict may also prevent
an attorney from challenging the admission of evidence prejudicial to one client but
perhaps favorable to another, or from arguing at the sentencing hearing the relative
involvement and culpability of his clients in order to minimize the culpability of one
by emphasizing that of another. Examples can be readily multiplied. The mere physical
presence of an attorney does not fulfill the Sixth Amendment guarantee when the
advocate’s conflicting obligations have effectively sealed his lips on crucial matters.
Further, “counsel’s allegiance to a client must remain unaffected by competing
obligations to other clients, and an actual conflict of interest renders judicial proceedings
fundamentally unfair. United States v. Alvarez, 580 F.2d 1251 (5th Cir. 1978). A conflict
occurs, whenever one defendant stands to gain significantly by counsel adducing probative
evidence or advancing plausible arguments that are damaging to the cause of a codefendant
whom counsel is also representing. Foxworth v. Wainwright, 516 F.2d 1072, 1076 (5th Cir.
1975).” Barclay v. Wainwright, 444 So. 2d 956, 958 (Fla. 1984).
The majority states, citing Wright v. State, 2014 Ark. 25, that “Nelson’s petition reveals
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no claim that he is ‘innocent or that his plea was coerced in the sense that it was the result of
fear, duress, or threats of mob violence as previously recognized by the court as cognizable
in coram nobis relief’ ” thereby removing Nelson’s claim from this court’s interpretation of
a cognizable coerced guilty plea.
Although the majority cites to Wright, Wright did not allege that his plea was the
product of fear, duress, or mob violence. Wright in turn cites to Hardwick v. State, 220 Ark.
464, 248 S.W.2d 377 (1952), where Hardwick alleged intimidation and coercion; however,
we remanded that case on different grounds. Hardwick cites to State v. Hudspeth, 191 Ark.
963, 88 S.W.2d 858 (1935), where we denied Hudspeth relief because his claims of duress and
mob violence were known to him at the time he entered his guilty plea. We stated, “If one
is caused to enter a plea of guilty in a criminal case from fear or duress, he is entitled to the
writ. . . . If mob violence had had anything to do with [Hudspeth] entering the plea of guilty,
he should have made that plea at the time he asked the court to permit him to withdraw his
plea of guilty.” Hudspeth, 191 Ark. At 969–70, 88 S.W.2d at 861. These cases, however,
indicate that a coerced guilty plea is one given under duress.
In applying our case law here, Nelson has alleged a conflict of interest that was
unknown to him when he pleaded guilty; a conflict that significantly benefited his
codefendant and coerced Nelson to plead guilty to his detriment. At a minimum, Nelson’s
petition commands a hearing and cannot be denied based on the record before the court. We
have explained that “a hearing is not required if the petition clearly has no merit . . . in that
it fails to state a cause of action to support issuance of the writ.” Deaton v. State, 373 Ark. 605,
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608, 285 S.W.3d 611, 614 (2008). However, here, upon review of the record, the record
alone, without a hearing, does not support the dismissal of Nelson’s petition for writ of error
coram nobis. It cannot be said without an evidentiary hearing that the allegations of Nelson’s
coerced guilty-plea argument are without merit. See Buckley v. State, 2010 Ark. 154 (per
curiam).
Therefore, I would remand Nelson’s petition to the circuit court so that it may
conduct an evidentiary hearing, consider Nelson’s petition for writ of error coram nobis, and
issue an order containing its findings of fact and conclusions of law.
HART and HOOFMAN, JJ., join in this dissent.
J. Brooks Wiggins, for appellant.
Dustin McDaniel, Att’y Gen., by: Laura Shue, Ass’t Att’y Gen., for appellee.
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