STATE OF ARKANSAS, Respondent.  

Case No. CR 94-928 (Direct Appeal)
Case No. CR 99-1060 (Rule 37 Appeal)    
Craighead Co. Circuit Court Nos 93-450, 450A  (Circuit Court Trial and Rule 37 Proceedings)    



On October 29, 2004, petitioner tendered to this Court his Motion to Recall the Mandate and to Reinvest Jurisdiction in the Trial Court to Consider Petition For Writ of Error Coram Nobis or for Other Extraordinary Relief.  On December 2, 2004 the Court issued an order directing that the motion be submitted as a case; that the state respond to the motion by December 13, 2004; and that petitioner reply to the response five days thereafter. The state having duly filed its response on December 13th, the following constitutes petitioner’s reply 1:

 The most salient feature of the state’s response to petitioner Echols’s “Motion to Recall the Mandate” (and for other relief) is the absence therein of any challenge to the factual assertions advanced by Echols in support of his constitutional claims for a new trial.  

There may be multiple reasons why respondent has failed to raise any factual dispute at this point in the proceedings. Surely one is that so many of Echols’s assertions are unassailably true.  The trial record itself establishes that the venire from which petitioner’s jury was selected had been inundated with inflammatory media reports concerning the charged murders and the just-completed trial of Jesse Misskelley; that all jurors had been exposed to those reports and several other jurors had formed a preconception of Echols’s guilt based upon them; that despite the fact that petitioner’s trial had been severed from Misskelley’s because Misskelley’s statement to the police was, as a matter of federal constitutional law, inadmissible against Echols, a prosecution witness at petitioner’s trial shoehorned a reference to Misskelley’s statement into the record; and that the jury had been judicially admonished to ignore that reference, an admonition

1 Five days after December 13, 2004 falls on Saturday, December 18, 2004.  With its submission on the next available Court day thereafter, the reply is timely.


deemed adequate by the trial court to ensure Echols a fair trial only because the witness had not disclosed the details of the Misskelley statement.  As to Echols’s assertions that jurors drew up charts during their deliberations listing the reasons for and against convicting Echols and his codefendant Baldwin and that certain items on both lists subsequently were covered over, the charts themselves have been maintained as court exhibits; there can be no dispute as to their existence.
Of particular importance, the state makes no suggestion that the crucial factual information recently discovered by petitioner which forms the cornerstone of his constitutional claims is false or unreliable: i.e., that a juror’s notes reveal the Misskelley statement was listed on the jury’s charts as a reason to find both Echols and Baldwin guilty, and that the jury foreman expressly relied on the inadmissible and unadmitted statement in voting to convict.  It may be that respondent’s investigation has already ascertained the truth of these factual allegations, or it may be that the state deems a response to them premature at this stage of the proceedings.  In either case, the facts alleged in petitioner’s “Motion to Recall” and supporting memorandum, all supported by documentary evidence, have been left uncontested by respondent and must be taken as true for purposes of the decision of this motion.

On the present factual record, there can be no doubt that the conviction of Echols was fundamentally unfair. Under controlling precedent of the United States Supreme Court, no defendant can be convicted on the basis of a statement to the police by an alleged coparticipant in a charged crime when that coparticipant is not available for cross-examination at the defendant’s trial. 2  That would be true even if the coparticipant’s statement had been admitted into evidence

2 Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).


at the defendant’s trial and even if it appeared on its face to be factually accurate.  Here, in a case in which every quantum of evidence properly admitted at trial against Echols was of questionable probative value, jurors, in violation of their oath, convicted petitioner based on inaccurate “private talk [and] public print” 3 concerning an out-of-court statement by Misskelley that itself was riddled with palpable falsehoods.  The conduct of the Echols jury described in petitioner’s moving papers is wholly at odds with the guarantees of the Fifth and Sixth Amendments,4 and the state makes no suggestion to the contrary in its response.

Thus the transcendent question this petition poses is whether a defendant who may well be innocent and who was sentenced to death after a trial that was plainly violative of federal constitutional standards nonetheless must be executed, or whether Arkansas law provides a remedy for such a grave wrong.  The state maintains death is required either because (a) the constitutional violations of which Echols complains can never be remedied because they are unprovable under Arkansas law; or (b) even were a remedy available under state law for these classes of constitutional violations, the time for seeking relief has expired, and no procedural vehicle remains available to petitioner to attack his convictions, no matter how well taken his federal constitutional claims may be.  None of these evidentiary or procedural objections precludes decision of petitioner’s claims on the merits.
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3 Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558 (1907)
4 See Turner v. Louisiana, 379 U.S. 466, at 472-473 85 S.Ct. 546, at 550, 13 L.Ed.2d 424 (1965) ("In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the 'evidence developed' against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right of confrontation, of cross-examination, and of counsel.")


As to its evidentiary objection, the state claims that under Arkansas Rule of Evidence 606(b) (2004) “a court cannot consider claims founded upon jurors impeaching their verdict by their descriptions of their deliberations....” (State’s Response [hereafter “Resp.,” at 7-8]).  The state’s response is defeated by the plain language of the statute upon which it relies.  While the state is quite right in contending that Rule 606(b) generally puts inquiries into juror deliberations off-limits, the glaring exception to that principle carved out by the statute is precisely the class of claims that Echols has persuasively advanced in his motion: that “extraneous prejudicial information was improperly brought to the jury’s attention [and] outside influence was improperly brought to bear upon [the] juror[s].” 5  Additionally, Echols’s juror bias claim does not implicate in any way the limitations of Rule  606(b).   

Furthermore, the state’s contention that petitioner’s claims must be rejected because “at bottom...[they are] claim[s] that the jury disregarded its instructions” (Resp., at 8) turns the law on its head. This Court has held that a jury’s consideration of extraneous material in defiance of an explicit judicial admonition to disregard any such information dispositively strengthens the claim, rather than defeating it.
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5 Arkansas Rule of Evidence 606(b), adopted in 1975, reads:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.


The state’s contention that Echols’ motion comes too late rests on the factual assumption that the newly discovered evidence on which petitioner’s constitutional claims rest could have been discovered at an earlier date.  The state has offered no evidence to support that contention; at a minimum, consideration of the state’s assertion of a time bar would require the convening of an evidentiary hearing. Furthermore, the airing of petitioner’s constitutional claims would not delay final resolution of this case in the Arkansas courts, because, as the state acknowledges, Echols’s “Act 1780 [DNA] proceeding is still pending in circuit court.” (Resp., at 2). 

Finally, there is no case law holding that a juror misconduct or bias claim cannot be raised on coram nobis when the facts underlying the claim are unearthed too late to raise the contention on a new trial motion or in a Rule 37 proceeding. To hold that no procedural vehicle exists under state law to consider such a federal constitutional claim would offend the spirit of the Fifth and Sixth Amendments and would cede to the federal system the right of Arkansas’s appellate courts to review in the first instance all constitutional claims arising from state criminal proceedings.



Noting that this Court “has oft-stated its confidence in the finality of jury verdicts and an unwillingness to entertain claims that would impeach those verdicts by invading the sanctity of the jury room,” the state argues that “[r]eopening here will not serve the integrity of the judicial system, but will only begin the disintegration of the finality jury verdicts bring to it.” (Resp., at 5).  It is certainly true that preserving the sanctity of the jury room and the finality of jury verdicts


are important values that the law promotes; it is just as true that the federal constitution promotes the values of a bias-free jury and a trial at which a criminal defendant is assured that he or she will be judged only on the basis of evidence subjected to the adversarial process.  Those constitutional protections are, of course, never more needed than when the state seeks to take a defendant’s life.  

To the extent that these important values can conflict, both the Congress of the United States and the Arkansas Legislature have fashioned a compromise to resolve that tension in the nearly identical federal and state versions of Rule 606(b).  Rule 606(b) honors the integrity of jury deliberations by barring inquiry into the process of arriving at a verdict in most instances, even in the face of an allegation that the jury breached a judicial instruction in convicting a defendant.  For example, had petitioner claimed that the jurors at his trial ignored the court’s directive to find him guilty only upon proof beyond a reasonable doubt and instead convicted by reliance on the civil standard of a preponderance of the evidence (or some even less rigorous standard), that claim would not be cognizable, no matter how factually accurate, because under Arkansas Rule Evid. 606(b),

[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received....

Rule 606(b) is, however, as clear in stating what is a proper basis for intrusion into the deliberative process as it is in defining what is not.  The Legislature has determined that there is a


class of conduct that poses such a threat to the right to a fair trial that it must be remedied even at the cost of breaching the confidentiality of juror deliberations.  For that reason, Rule 606(b) creates an exception to the general ban on inquiring into jury verdicts in that it permits a juror to “. . . testify on the questions whether extraneous information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.”  
The heart of petitioner’s constitutional claims is his assertion, fully supported by the evidence he has presented, that jurors relied on information that they had received outside the courtroom – media reports that Jesse Misskelley had confessed to being involved in the murders of Chris Byers, Michael Moore, and Steve Branch and told the police that Echols and Baldwin were the principal authors of the crimes – in convicting Echols of the three charged murders.  The core questions underlying petitioner’s claims are “whether extraneous information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror”; that being so, contrary to the state’s argument, petitioner has indeed demonstrated that a “court could consider the purported evidence supporting [his claims] under A.R.E. 606(b).” (Resp., at 7).  That the state’s 606(b) objection to the evidence tendered by petitioner is more reflexive than seriously advanced is demonstrated by the fact respondent does not cite a single case interpreting Rule 606(b) which supports its position, much less distinguish the numerous cases interpreting the rule relied upon by Echols in his opening memorandum.

6 See, e.g., Witherspoon v. State, 322 Ark. 376, 382, 909 S.W.2d 314, 317-18 (1995) (Arkansas Rule of Evidence 606(b) "establishes an extraneous information exception which allows jurors to testify that one or more members of the jury brought to trial specific personal knowledge about the parties or controversy or acquired such knowledge from sources outside the courtroom during the trial or deliberations."); Sunrise Enterprises, Inc. v. Mid-South Road Builders, Inc., 337 Ark. 6, 11, 987 S.W.2d 674, 676-677 (1999) (citation omitted). ("To show that extraneous materials were brought to the jurors attention, the trial judge may properly


As noted in the Introduction above, the state contends that petitioner’s claims must be rejected because “at bottom...[they are] claim[s] that the jury disregarded its instructions” (Resp., at 8).  This is simply untrue: petitioner’s claims are that during deliberations the jury considered the most prejudicial form of extraneous information imaginable – inaccurate media reports of a co-defendant’s unreliable statement implicating the defendant in the charged crime – thereby demonstrating bias and committing misconduct.  These federal constitutional claims would require a new trial even had the jury not been expressly instructed to base its verdict only on the evidence admitted in court and to ignore Detective Ridge’s reference to the Misskelley statement.  Thus Echols is not raising a claim which is in essence one that the jury “disregarded its instructions.”            
That being said, by discussing the Misskelley statement, placing it on its list of factors favoring a conviction, and relying on it to convict, jurors did violate express admonitions of the trial judge.  Rather than defeating petitioner’s constitutional claims, that breach of the court’s admonitions to disregard the Misskelley statement and to decide the case solely on the evidence admitted in court strengthens rather than weakens Echols’s entitlement to relief.  See, e.g., Diemer v. Dischler, 313 Ark. 154, 162, 852 S.W.2d 793, 797 (1993)(citing factors deemed “determinative” in deciding claim jurors made unauthorized visit to accident scene, the first of

consider the content of conversations that took place in the jury room."); see also Rushen v. Spain, 464 U.S. 114, 121 n.5, 104 S.Ct. 453, 457 n.5, 78 L.Ed.2d 267 (1983) ("A juror may testify concerning...whether extraneous prejudicial information was improperly brought to the juror's attention.  See Fed.R.Evid. 606(b)."); United States v. Brown, 108 F.3d 863, 867 (8th Cir. 1997) ("Although Rule 606(b) generally prevents a juror from testifying 'as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind,' the rule does allow jurors to 'testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.' Fed.R.Evid. 606(b).")


which was whether trial court had instructed jury not to visit the scene).  Petitioner’s claims are not precluded by the operation of Rule 606(b).  


As noted above, it is the state’s position that despite the United States Supreme Court’s having held that the consideration of extraneous information by jurors constitutes a fundamental violation of a criminal defendant’s Fifth and Sixth Amendment rights,7 Arkansas provides no means of remedying such a federal constitutional violation; according to respondent, “claims founded upon jurors’ impeachment of their own verdict are never timely....” (Resp., at 7).  Alternatively, the state argues that “it simply cannot be that [Echols] various constitutional claims could be made only a decade after his trial.” Id.

The state’s assertion that petitioner’s claims could have been brought sooner necessarily relies on a factual proposition – that the evidence of juror misconduct Echols recently unearthed could have been obtained earlier – for which respondent offers no factual support.  On the other hand, petitioner has offered evidence tending to prove a contrary conclusion.  For example, the affidavits of investigators attesting that the jury foreman was aware of details of the Misskelley statement and relied on that information to convict also contain evidence that despite requests for interviews, the foreman had not discussed his role in the deliberations until he did so two months ago in October.  It certainly cannot be said on this record that Echols could have developed his

7 Parker v. Gladden, 385 U.S. 363, 364, 87 S.Ct. 468, 870, 17 L.Ed.2d 420 (1966) (statements of bailiff in charge of a deliberating to jurors that the defendant was a "wicked fellow" who was guilty and that any improper guilty verdict would be corrected by the Supreme Court violated "the command of the Sixth Amendment, made applicable to the States through the Due Process Clause of the Fourteenth Amendment.")


present claims sooner than he did; at a minimum, an evidentiary hearing would be required to address that question.

Of equal importance, the issue of diligence is not formally jurisdictional in nature, but one implicating considerations of equity. Menendez v. Holt, 128 U.S. 514, 524, 9 S.Ct. 143 (1888) (“[I]t is in the exercise of discretionary jurisdiction that the doctrine of reasonable diligence is applied . . .”) (Emphasis supplied)]  Again, on the present record this Court must assume that Echols, if given the opportunity to establish his claims on the merits, can demonstrate that, in a case where evidence of his guilt is scarce, his trial and sentence of death were fundamentally unfair. Deciding petitioner’s present claims on the merits, if those claims prove well-founded, will thus avoid a grave miscarriage of justice. On the other hand, a merits decision will not delay the ultimate disposition of this case in the Arkansas courts because, as the state acknowledges, this matter is still pending in the circuit court on Echols’s motion to prove his innocence through DNA testing.  Equitable considerations compel the conclusion that petitioner’s “Motion to Vacate” should not be denied as untimely.


Putting to the side questions as to the availability of the ultimate relief sought by petitioner, the state also argues that the Court should not recall the mandate because such an order is not warranted under Robbins v. State, 353 Ark. 556, 114 S.W. 3d 217 (2003), the very decision invoked by Echols in support of his pending motion. (Resp., at 4-7).  In so contending, the state does not dispute that this Court possesses the inherent authority to recall the mandate; as petitioner observed in his opening motion (at 4-5), Robbins makes that point abundantly clear.


353 Ark. at 563, 114 S.W.3d at 221. 
The state instead argues that Echols’s case is not sufficiently extraordinary within the meaning of Robbins to outweigh the judicial system’s interest in the finality of jury verdicts and warrant recall.  (Resp., at 4).  In this connection, the state seeks to distinguish the three circumstances which this Court discussed in Robbins as the bases for the relief afforded there. 

The state’s argument is unpersuasive. As identified in Robbins, the extraordinary circumstances which justified the recall of the mandate consisted of (1) an alleged fundamental defect in the verdict form which, if found present, would compel reversal under established Arkansas precedent; (2) the federal district court's dismissal of Robbins’s federal habeas corpus petition in order to give the state courts the opportunity to explore the issue, and (3) the enhanced scrutiny that this Court requires in death cases. Robbins, 353 Ark. at 564-65, 114 S.W.3d at 222-23. While the state may be correct that all of these precise circumstances are not presented in the instant case, those appearing here are sufficiently similar to those in Robbins to warrant recall in this matter.

Of course, one of the Robbins circumstances — the enhanced scrutiny triggered by a state judgment subjecting a petitioner to execution — is identical to one of those presented here.  The state seeks minimize the significance of this factor by contending that such scrutiny is “‘unique’ to every death case” (see Resp., at 6, n. 4), but this hardly does justice to this Court’s view that a defendant’s complaints in this narrow class of criminal cases must be accorded special attention, particularly where they implicate the reliability of the guilt or penalty phase result, given the ultimate sanction that looms if those complaints are found wanting.  See, e.g., Robbins, 353 Ark. at 561-62, 114 S.W.3d at 220-21 (citing and quoting, inter alia, Zant v. Stephens, 462 U.S. 862,


884-885 (1983): "[B]ecause there is a qualitative difference between death and any other permissible form of punishment, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case."); Eddings v. Oklahoma, 455 U.S. 104, 118 (1982) (O'Connor, J., concurring) ("[T]his Court has gone to extraordinary measures to ensure that the prisoner sentenced to be executed is afforded process that will guarantee, as much as is humanly possible, that the sentence was not imposed out of whim, passion, prejudice, or mistake."); see also Robbins, 353 Ark. at 561, 114 S.W.3d at 220 (“This court, early on, voiced its belief in the ‘humane principle applicable in general to criminal cases, and especially those where life is involved,’ and declined to exalt form over substance when dealing with the death penalty. Bivens v. State, 11 Ark. 455, 457 (1850)”). 8  

Second, the fact that the federal court in Robbins had dismissed a habeas petition on the grounds that Robbins had not exhausted his state remedies, see Robbins, 353 Ark. at 559, 114 S.W.3d at 219, while no such dismissal has occurred in the present matter does not present a meaningful distinction between these cases.  As of the time of filing the present motion, petitioner had initiated an action seeking habeas relief from the federal district court in connection with the claims he seeks to pursue here. See Echols v. Norris, Eastern Dist. of Arkansas No. 04CV00391 HLJ.  In that petition, Echols has asked the federal court to stay the action to permit him to exhaust his present claims in the Arkansas courts, as any petitioner must ordinarily do as a prerequisite to triggering federal review. Rose v. Lundy, 455 U.S. 509, 522, 102

8 It bears noting, moreover, that the presence of petitioner's death sentence is a circumstance that, standing alone, significantly narrows the class of cases in which recall requests, apart from those granted to defendants seeking a writ of certiorari as to an otherwise concluded appeal (see Robbins, 353 Ark. at 563-64, 114 S.W.3d at 222), should be entertained in the first instance.


S.Ct. 1198, 71 L.Ed.2d 379 (1986). If that request for a stay is granted, it will be to permit the very consideration, and hence exhaustion, as is sought by the present motion and related request for relief.  If, on the other hand, the federal request is denied, the federal court will dismiss the petition as an alternative and appropriate response to a federal petition containing unexhausted claims, just as occurred in RobbinsSee Rose, supra.  In either event, it is clear that petitioner must fairly present his claims to the Arkansas state courts before he will permitted to further pursue his proffered constitutional claims in federal court, again, just as Robbins was required to do. 

As to the final extraordinary circumstance identified in Robbins, petitioner cannot allege the presence of a deficiency in a verdict form which, if established, would entitle him to relief from the penalty-phase judgment, as was true in Robbins.  Petitioner has, however, alleged the presence of errors which, if established, are if anything more “fundamental” than that asserted in Robbins, i.e., a guilt-phase verdict that, corrupted by egregious jury misconduct and bias, was the product of rampant passion and prejudice rather than reasoned consideration of only the evidence admitted at trial.  Such errors would invalidate not only the penalty phase result, but, surpassing Robbins, the underlying conviction itself.  Thus, to the extent that the nature of the alleged error bears on the location of extraordinary circumstances sufficient to warrant recall under Robbins, such errors are surely presented here.  The rationale which justified recall of the mandate in Robbins is equally applicable in the instant case.
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9 As indicated above, an additional extraordinary circumstance attending this case, one not presented in Robbins, is the presence of the ongoing DNA proceedings in the circuit court.



At the conclusion of its Response, the state argues that the Court should not, in any event, consider the instant motion because coram nobis relief is not available for the type of claims advanced by petitioner in his opening memorandum. (Resp., at 10-11). This argument, however, is premature, given that the present motion seeks an order recalling the mandate for the very purpose of determining the availability of specific remedies to press his constitutional claims. 

In any event, the state’s argument is not well-founded.  The writ of error coram nobis is an extraordinary remedy which “should be allowed only under compelling circumstances to achieve justice and to address errors of the most fundamental nature.” State v. Larimore, 327 Ark. 271, 279, 938 S.W.2d 818, 822 (1997).  The function of the writ is to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of judgment.  Troglin v. State, 257 Ark. 644, 645-46, 519 S.W.2d 740, 741 (1975).  Due diligence is required in making the application for relief, but the time limits applicable to Rule 37 applications are not applicable. Id.  Finally, coram nobis proceedings are attended by a strong presumption that the disputed conviction is valid, and an application for relief must be accompanied by specific factual allegations on which the petitioner relies. Id.
Petitioner submits that, as demonstrated by his opening motion and memorandum and the discussion above, the constitutional claims and factual allegations he has presented patently satisfy this standard.  Specifically, the errors he has alleged were egregious and fundamental; if


established as true, they have rendered the guilt phase verdict wholly unreliable and the sentence of death an utter mockery of justice. Petitioner had no reason to know of the misconduct and bias before the rendition of judgment, which would never have issued had the facts been disclosed to the trial court.  Furthermore, as noted, the present record plainly supports the inference that he has been sufficiently diligent to avail himself of coram nobis.  The factual allegations themselves could not be any more specific.
To be sure, the state invokes authority (Resp., at 10-11), including the Court’s earlier opinion in this case, Echols v. State, 354 Ark. 530, 127 S.W.3d 486 (2003), which observes that in Arkansas, coram nobis relief is available to remedy four kinds of errors, including insanity at the time of trial, a coerced guilty plea, material evidence withheld by the prosecutor (see, e.g. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)), or a third party confession to the crime. Echols, 354 Ark. at 417, 125 S.W.3d at 156.  Respondent, however, has failed to cite any precedent forbidding application of coram nobis to remedy juror misconduct and bias rising to the level petitioner alleges, and is prepared to demonstrate, in this case.  Nor has the state explained why, in an exceptional case such as this, the categories of error described in Echols may not be expanded to accommodate the constitutional claims petitioner asserts here.   Indeed, the state notes that in a recent argument before this Court, it conceded that the remedy might be “forced to accommodate a fifth category” of cases involving claims of mental retardation.  (Resp., at 11, n.6) A death case guilty verdict that is founded on rumor responding, in turn, to information tainted by falsehoods merits no more trust than one by the most egregious Brady violation or any of the other categories of error described in Echols, supra, and is as deserving of coram nobis jurisdiction as is a claim that a defendant has been sentenced to death


despite being mentally retarded. 

Were this Court nevertheless to rule that coram nobis cannot be applied here, then it should permit Echols to proceed in the trial court with a motion for a new trial, despite the passing of the governing time limits, or under whatever rubric will permit his constitutional claims to be fully aired.  Indeed, this Court in Robbins implicitly authorized an equivalent remedy when it permitted the petitioner to reopen an appeal that had long since concluded and which, but for this Court’s intervention, would have been remained forever closed.   

One final point bears emphasis: if the substance of petitioner’s misconduct claims are not deemed cognizable and petitioner is foreclosed from further pressing them here, that result may simply mean that they are decided in the first instance by the federal courts.  In response to any state argument that Echols has procedurally defaulted his claims in the Arkansas courts, the federal district court may well determine that the state’s procedural barriers to the claims do not constitute an adequate ground for rejecting them because petitioner was not given a fair opportunity to present the claims to a state tribunal following the discovery of their factual basis.  Harris v. Reed, 489 U.S. 255, 260-62 (to preclude federal review, purported state procedural default must rest on grounds that are “adequate”); Hertz and Liebman, Federal Habeas Corpus Practice and Procedure, 4th ed., 2001, §26.2d, n.47 (summarizing federal cases holding that state rule was not adequate because, as applied, it did not permit a reasonable opportunity to have the federal right heard and determined by the state courts); id., at n. 48 (summarizing federal cases holding state rule inadequate where, as applied, it required objection before the error became reasonably apparent).
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The irony, of course, is that such a result would gravely undermine the central role which the AEDPA assigns to this Court in assessing the viability of federal constitutional claims.  Petitioner urges the Court not to permit that result and thereby potentially sacrifice the preeminent role it is entitled to assume under the AEDPA. 


For the foregoing reasons, and for those set forth in the opening motion, memorandum, and exhibits, petitioner respectfully requests that this Court issue an order recalling its mandate and investing the Circuit Court of Craighead County with jurisdiction to consider Echols’s petition for a writ of error coram nobis and/or other appropriate extraordinary relief.

DATED: December 17, 2004

Respectfully submitted,



By   _______________________

Attorneys for Petitioner