Petition for Writ of Certiorari — Timothy Wayne Kemp, Petitioner v. Arkansas

***THIS IS A CAPITAL CASE***

No. _______________________________

IN THE

Supreme Court of the United States

______________________

Timothy Wayne Kemp,

Petitioner

v.

State of Arkansas

Respondent

____________________

On Petition for Writ of Certiorari to the

Arkansas Supreme Court

____________________

PETITION FOR WRIT OF CERTIORARI

____________________

LISA G. PETERS

FEDERAL PUBLIC DEFENDER

JULIE VANDIVER

Counsel of Record

Chief, Capital Habeas Unit

MELISSA FENWICK

Research and Writing Specialist

Federal Public Defender Office for the

Eastern District of Arkansas

1401 W. Capitol Avenue, Suite 490

Little Rock, AR 72201

(501) 324-6114

Counsel for Petitioner

***THIS IS A CAPITAL CASE***

QUESTION PRESENTED

Whether the October 7, 2021 decision of the Arkansas Supreme Court, finding that

Timothy Kemp was not prejudiced under Brady v. Maryland, was in conflict with this

Court’s decision in Cone v. Bell where, in the words of the Arkansas court, “there is no

prejudice under Brady and no reasonable probability that the outcome of the trial

would have been different had defense counsel been provided with the evidence,” but

where that court did not distinguish between materiality of evidence with respect to

guilt and materiality of evidence with respect to punishment, an omission which this

Court has deemed “significant”?

i

PARTIES

The caption contains the names of all parties.

ii

DIRECTLY RELATED CASES

• State v. Kemp, No. CR 1993-2903 (Pulaski Cty.) (Dec. 5, 1994) (trial).

• Kemp v. State, No. CR 95-549 (Ark.) (Apr. 22, 1996) (direct appeal).

• State v. Kemp, No. CR 1993-2903 (Pulaski Cty.) (Nov. 5, 1997) (re-sentencing).

• Kemp v. State, No. CR 98-463 (Ark.) (Nov. 19, 1998) (direct appeal).

• Kemp v. State, No. CR 1993-2903 (Pulaski Cty.) (Oct. 23, 1999) (state

postconviction).

• Kemp v. State, No. CR 00-482 (Ark.) (Nov. 29, 2001) (rev’d more specific

findings).

• Kemp v. State, No. CR 1993-2903 (Pulaski Cty.) (Jan. 23, 2002) (state

postconviction).

• Kemp v. State, No. 00-482 (Ark.) (May 16, 2002) (state postconviction).

• Kemp v. State, No. CR 1993-2903 (Pulaski Cty.) (Sept. 30, 2008) (state

postconviction).

• Kemp v. State, No. CR 09-77 (Ark.) (Dec. 17, 2009) (state postconviction).

• Kemp v. State, No. CR 00-482 (Ark.) (Apr. 1, 2010) (denying motion to recall the

mandate).

• Kemp v. State, No. CR 95-549 (Ark.) (Sept. 30, 2010) (denying coram nobis).

• Kemp v. Kelley, No. 5:03-cv-55 (E.D. Ark.) (Oct. 6, 2015) (habeas).

• Kemp v. Kelley, No. 15-3849 (8th Cir.) (May 16, 2019) (habeas appeal).

• Kemp v. Payne, No. 19-7476 (U.S.) (May 18, 2020) (denying certiorari).

• Kemp v. Arkansas, No. CR-95-549 & CR-98-463 (Ark.) (Oct. 7, 2021) (denying

application to proceed on writ of error coram nobis).

iii

TABLE OF CONTENTS

Question Presented ................................................................................................................. i

Parties ....................................................................................................................................... ii

Directly Related Cases........................................................................................................... iii

Table of Contents .................................................................................................................. iv

Table of Authorities ............................................................................................................... v

Petition for a Writ of Certiorari ............................................................................................ 1

OPINIONS BELOW ........................................................................................................ 1

JURISDICTION................................................................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.............. 1

INTRODUCTION ............................................................................................................ 1

STATEMENT OF THE CASE ....................................................................................... 2

REASONS FOR GRANTING THE PETITION ....................................................... 7

I. The decision of the Arkansas Supreme Court presents a conflict with this

court’s decision in Cone v. Bell......................................................................................... 8

Kemp v. Arkansas, No. CR-95-549 ..................................................................... Appendix A

Kemp v. Arkansas, No. CR-98-463 .......................................................................Appendix B

iv

TABLE OF AUTHORITIES

Cases:

Abdul-Kabir v. Quarterman, 550 U.S. 233 (2007) ........................................................... 13, 17

Andrus v. Texas, 140 S. Ct. 1875 (2020) .............................................................................. 18

Brady v. Maryland, 373 U.S. 83 (1963) ................................................................................... 8

Buckley v. State, 2007 WL 1509323 (Ark. 2007) ................................................................... 9

Cone v. Bell, 556 U.S. 449 (2009) .................................................................................... passim

Echols v. State, 125 S.W.3d 153 (2003) .................................................................................. 9

Eddings v. Oklahoma, 455 U.S. 104 (1982)........................................................................... 16

Howard v. State, 403 S.W.3d 38 (Ark. 2012) ................................................................... 9, 10

Kemp v. State, 60 S.W.3d 404 (Ark. 2001) ........................................................................... 14

Lockett v. Ohio, 437 U.S. 586 (1978) .................................................................................... 16

Sears v. Upton, 561 U.S. 945 (2010)...................................................................................... 16

Tison v. Arizona, 481 U.S. 137 (1987) .................................................................................. 14

Wallace v. Arkansas, 545 S.W.3d 767 (Ark. 2018) .............................................................. 10

Wiggins v. State, 539 U.S. 510 (2003) ................................................................................... 16

Other Authorities:

J. Thomas Sullivan, Brady-Based Prosecutorial Misconduct Claims, Buckley, and the

Arkansas Coram Nobis Remedy, 64 Ark. L. Rev. 561, 617 (2011)..................................... 9

Michael A. Simons, Born Again on Death Row: Retribution, Remorse, and Religion, 43 Cath.

Law 311, 322 (2004).......................................................................................................... 19

Scott E. Sundby, The Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse,

and the Death Penalty, 83 Cornell L. Rev. 1157, 1558 (Sept. 1998)................................ 19

v

Theodore Eisenberg, Stephen P. Garvey, & Martin T. Wells, But was he sorry? The Role

of Remorse in Capital Sentencing, 83 Cornell L. Rev. 1599, 1633 (Sept. 1998) ................ 19

vi

PETITION FOR A WRIT OF CERTIORARI

Timothy Wayne Kemp respectfully petitions for a writ of certiorari to review

the judgment of the Arkansas Supreme Court.

OPINIONS BELOW

There are two opinions released on the same day at issue. The first opinion of

the Arkansas Supreme Court is reported at 629 S.W.3d 804 (Ark. 2021). (App. A). The

second related opinion is reported at 2021 Ark. 172. (App. B).

JURISDICTION

The judgment of the Arkansas Supreme Court entered its opinions on October

7, 2021. This Court has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S. Const. amend XIV:

. . . nor shall any state deprive any person of life, liberty, or property, without due

process of law.

INTRODUCTION

Timothy Kemp shot four people in a rural Arkansas trailer in 1993. From the

moment of his arrest, he told the police that “these people beat his ass and threatened

him and he was just defending himself.” R 1480; RS 984. At his trial, the prosecution

vigorously disputed Kemp’s claims of self-defense. A key witness who was at the

trailer that night testified repeatedly that she did not see any of the victims with a gun.

Decades later, notes from the prosecutor’s file revealed that the witness lied on the

stand and that she not only saw one victim with a gun, but he told her he planned to

1

use the gun to scare Kemp. Using the only state court avenue to vindicate a Brady v.

Maryland claim discovered after trial, Kemp filed an application to reinvest the circuit

court with jurisdiction to hear a writ of error coram nobis. The Arkansas Supreme Court

held there was no reasonable probability of a different outcome and declined to

reinvest jurisdiction. In doing so, the court failed to distinguish between the

materiality of the suppressed evidence with respect to guilt and punishment, giving

rise to the instant Petition.

STATEMENT OF THE CASE

Timothy Kemp and his girlfriend, Becky Mahoney, arrived on October 4, 1993, as

visitors to Wayne Helton’s trailer. After a day of steady drinking, Kemp and Mahoney

joined Helton, Robert Phegley and Cheryl Phegley (father and daughter), in more

drinking. At some point in the evening, Richard Falls joined the group. As the night

wore on, Kemp wanted to leave but Mahoney did not. The group told Kemp to leave

without Mahoney.

Shortly after his arrest, Kemp told the police that he did leave, but only briefly, and

that he returned to see if Mahoney had changed her mind and wanted to leave too.

According to Kemp, on his return he was greeted outside with taunts, physical

violence, and threatened with a gun. Kemp grabbed his own gun out of his truck,

grappled with Helton at the front door, and ended up shooting Helton, Robert

Phegley, Cheryl Phegley, and Falls. Mahoney hid in the closet and was physically

2

unharmed. The police found a pistol between the bodies of Helton and Richard

Phegley.

Kemp was charged with four counts of capital murder and the State sought the

death penalty. The prosecution’s theory of the case differed significantly from

Kemp’s. The State argued that Kemp left the trailer, drove home, retrieved his gun,

parked a distance away from the trailer, skulked toward the front door where, after

knocking, he unloaded his gun on the unsuspecting occupants.

To support the self-defense theory, the defense attorney questioned Mahoney

about whether she saw a gun at the trailer that night. She flatly denied seeing a gun.

Q: And you say that Tim went out by himself?

A: Tim left by himself.

Q: Did you see a gun at that time?

A: No, sir.

Q: Did you ever see a gun?

A: No, sir.

Q: You didn’t see a pistol at any time?

A: I don’t remember.

Q: You don’t remember. You don’t recall if someone pulled a pistol on him?

A: No, sir.

Q: Okay. You just didn’t see one?

A: Nobody pulled a pistol on him.

Q: Okay. You didn’t see a pistol at all. Is that right? Is that what you’re saying?

A: Yes, sir.

R 1415. Though there was a gun found near Helton’s body, the jury heard no

evidence that Helton intended to scare Kemp with the weapon. Kemp’s self-defense

arguments were unavailing in the guilt phase and the jury found Kemp guilty of four

counts of capital murder.

3

At the penalty phase, the defense kept its focus on Kemp’s claims of self-defense

but tailored their presentation to the jury’s task at penalty. The defense argued the

statutory mitigating factor that “the capital murder was committed . . . under extreme

mental or emotional distress” was established because “[h]e had been threatened.” R

1950. The defense also argued that the statutory mitigating factor related to “unusual

pressures or influences” was present because “[t]here was a gun. A gun found. . . It

was at the foot of one of the people. . . He had been told that he was going to beat his

ass. He was fearful. He was upset.” R 1950. The defense also presented a mitigating

circumstance that Kemp “believed he was acting in self-defense.” R 1966.

The defense argued that these threats were particularly potent because of Kemp’s

psychological impairments. R 1950–51. Under this theory, and particularly relevant to

the question presented, even if the provocation was insufficient to mount a guiltphase defense, it still mitigated the crime. A defense psychologist testified that Kemp

was “less able to control his impulses,” “more likely to feel threatened by just about

anything” but would respond to a significant threat “all the more strongly.” R 1905–

06. The psychologist based his opinion in part on “claims of threats from the other

parties at the house that evening.” R 1918. The prosecution criticized the psychologist

for taking Kemp’s word that he had any reason to be fearful. Id.

In her penalty phase closing, the prosecutor disputed each mitigating

circumstance and argued there was “no evidence, no evidence, no evidence that he

4

was acting in self-defense.” R 1944. Returning four death sentences, the jury only

unanimously found two mitigating circumstances, both related to Kemp’s upbringing.

On direct appeal, three of Kemp’s death sentences were overturned due to an

improper aggravating circumstance. The State sought to reimpose those death

sentences. The parties largely repeated their presentations and Mahoney again lied:

Q: Okay. Did you see a gun? Did you see any of them with a gun?

A: No, sir.

Q: Okay. If there was a gun there, you wouldn’t be surprised to see it in the

pictures though, would you?

A: I didn’t — — I never did see no gun.

Q: You never saw a gun?

A: No, sir.

Q: But you’re not denying that someone had a gun there. Is that right?

A: I never seen no gun.

RS 914-15. The defense psychologist tempered his testimony about Kemp’s

perception of threats—explaining that Kemp may have “misperceived” a danger. RS

1056.

Using Kemp’s longer statement to police, the defense again urged Kemp’s belief in

self-defense as a mitigating factor. The prosecution argued that the statement was “a

pack of lies . . . all about he’d been beaten and threatened and they followed him out

into the yard and they pulled their gun on him.” RS 1167. Moreover, the prosecutor

told the jury these lies showed that Kemp had “[n]o remorse. No feeling about the

lives he’s taken.” Id. The defense conceded that Kemp “does not have a defense under

our law to shooting those people” but argued that the jury’s moral decision should be

influenced by the circumstances of the offense—including whether Kemp committed

5

the crime under an emotional disturbance, unusual pressures, or a belief in selfdefense. RS 1178–83. The prosecution responded she would not spend any time on

the question of whether Kemp believed he was acting in self-defense because

“[t]here’s no evidence of that whatsoever,” and Kemp’s claims that he was threatened

were “crazy lies.” RS 1190. The jury found the presence of the single aggravating

factor—that Kemp created a great risk of death to another person. The jury did not

unanimously find any mitigating circumstances.

During discovery in federal habeas, Kemp received never-before disclosed parts of

the prosecutor’s file: a work-product file and a victim-assistance file. The workproduct file contained notes taken by the prosecutor in her own witness interviews.

There, Mahoney related that “Wayne showed Becky a pistol that he had + said he

would use it to scare Tim.” There is no dispute that these files had never previously

been disclosed to Kemp.

Kemp raised a Brady claim based on this and other revelations in the prosecutor’s

file in habeas proceedings. The federal district court found the Brady claim to be

inexcusably procedurally defaulted and declined to certify it for appeal. The Eighth

Circuit Court of Appeals likewise did not certify the issue for appeal. Kemp included

the procedural question in his petition to this court that otherwise dealt with an

adjudicated Strickland issue. Certiorari was denied. Kemp v. Payne, No. 19-7476 (U.S.)

(May 18, 2020).

6

Following denial of certiorari, and in line with Arkansas Supreme Court precedent,

Kemp applied to the Arkansas Supreme Court to reinvest the trial court with

jurisdiction to hear his Brady claims. After full briefing and oral argument, the

Arkansas Supreme Court released two opinions regarding the case (one detailed

opinion under the trial case number and another adopting that rationale in the

resentencing case number). See Appendix A and B. While the State urged alternative

grounds for denial, the court denied Kemp’s application squarely on the merits of his

Brady claim.

REASONS FOR GRANTING THE PETITION

At the application stage of coram nobis review, the Arkansas Supreme Court

determined whether Kemp’s Brady claim was potentially meritorious. To do this, the

court considered the reasonableness of the allegations and the probability of their

truth. A finding of actual prejudice or reasonable probability of a different outcome

was not required. The court’s decision, declining to reinvest jurisdiction, has barred

consideration of the merits of Kemp’s Brady claim, but this Court’s precedent dictates

that further review is warranted.

Though procedurally distinguishable, the instant case is factually analogous to this

Court’s decision in Cone v. Bell, 556 U.S. 449 (2009). By “[s]ummarily discounting” the

contention that Kemp’s Brady claim was potentially meritorious and material to his

death sentence, the Arkansas Supreme Court’s decision conflicts with this Court’s

holding in Cone. Id. at 464. Failing to distinguish between the materiality of suppressed

7

evidence at both guilt and sentencing is “an omission [this Court] find[s] significant.”

Id. at 476. “Because the evidence suppressed at [Kemp’s] trial may well have been

material to the jury’s assessment of the proper punishment in this case, a full review

of the suppressed evidence and its effects is warranted.” Id. at 475.

I.

The decision of the Arkansas Supreme Court presents a conflict with

this court’s decision in Cone v. Bell.

In Cone v. Bell, this Court emphasized a constitutional mandate that prejudice from

suppressed Brady evidence must be examined for both the guilt and penalty phases of

a capital murder trial. Id. at 469; citing to Brady v. Maryland, 373 U.S. 83, 87 (1963)

(suppression violates due process when the evidence is material to guilt or punishment)

(emphasis added). Reasoning that evidence, while not exculpating, may play a

mitigating role in the jury’s sentencing recommendation, and because no court prior

had “fully considered whether the suppressed evidence” may have swayed the jury at

sentencing, this Court remanded for a “full review” of Cone’s Brady claim. Id. at 475.

This case is plainly controlled by and analogous to Cone. Here, as in Cone, the

prosecution suppressed a witness statement that would have corroborated Kemp’s

claims of self-defense and supported multiple mitigating factors at the penalty phase.

Here, as in Cone, the prosecution not only presented Kemp as a remorseless killer,

they discredited his defense by calling it “a pack of lies” and emphasized there was

absolutely no evidence Kemp was threatened, while simultaneously sitting on the very

evidence they claimed was missing. Here, as in Cone, the lower court only “passed

8

briefly on the merits” of Kemp’s Brady claim and failed to distinguish between the

materiality of the suppressed statement as to guilt and punishment. Id. at 452. Here, as

in Cone, a full review of the penalty-phase prejudice is absent and warranted. This

Court emphatically recognized in Cone that a Brady claim which fails with respect to

guilt may still have merit as to sentencing. Failing to distinguish between the two is a

constitutionally deficient analysis.

A. The Arkansas Supreme Court opinion rested solely on whether Kemp

could establish Brady prejudice.

The writ of error coram nobis is the only practical vehicle by which a petitioner may

present a Brady claim discovered after trial in Arkansas state courts. See Buckley v. State,

2007 WL 1509323 at *2 (Ark. 2007) (“[a] petitioner may seek relief for prosecutorial

misconduct at trial, in a motion for new trial, or through error coram nobis

proceedings”); J. Thomas Sullivan, Brady-Based Prosecutorial Misconduct Claims, Buckley,

and the Arkansas Coram Nobis Remedy, 64 Ark. L. Rev. 561, 617 (2011) (“Brady-based

misconduct violations must be litigated through the writ of error coram nobis process”).

If a case has been affirmed on direct appeal, before a trial court may consider a writ of

error coram nobis, the Arkansas Supreme Court must grant permission and reinvest the

circuit court with jurisdiction. Echols v. State, 125 S.W.3d 153 (2003). That court will do

so “when it appears the proposed attack on the judgment is meritorious.” Howard v.

State, 403 S.W.3d 38, 43 (Ark. 2012) (citing Flanagan v. State, 2010 Ark. 140, at *1 (Ark.

2010)).

9

The writ exists to address four categories of error—one of which is material

evidence withheld by the prosecutor. Id. This category of error also covers witness

testimony that “materially conflicts” with a statement “withheld or suppressed by the

state.” Wallace v. Arkansas, 545 S.W.3d 767, 770–71 (Ark. 2018). The Arkansas

Supreme Court dubs this category of error a “Brady violation” and applies Brady and

this Court’s related precedents in adjudicating such claims. Howard, 403 S.W.3d at 44.

Thus, the coram nobis “materiality” standard is equivalent to Brady’s: prejudice is

established when there is a “reasonable probability” that the outcome of the trial

would be different but for the state suppression of favorable evidence. Id. at 46.

At the application stage, Kemp needed only convince the Arkansas Supreme Court

that his claims had “apparent merit.” Id. at 47. The Arkansas Supreme Court assumed

that Kemp had established the first Brady element—that the evidence was suppressed.

Thus, the sole question before the Court was whether the “circuit court could find that

there is a reasonable probability that, had the evidence been disclosed, the result of

the proceeding would have been different.” Id. at 45 (emphasis added). The ultimate

merits of the claim—whether there was a “reasonable probability” of a different

outcome—is left to the circuit court on reinvestment. Id. at 46 (“The reasonableprobability standard…applies to the circuit court’s evaluation of the merits of the

error coram nobis petition and not to this court’s decision to grant or deny permission

to proceed with filing the petition in circuit court.”). Because the Arkansas Supreme

Court reinvests jurisdiction whenever a Brady claim has “apparent merit,” and because

10

on this record Kemp’s claim does have merit, the court’s “summary treatment” and

rejection of Kemp’s Brady claim warrants further review. Cone, 556 U.S. at 474.

B. The Arkansas Supreme Court violated Cone v. Bell and Brady v.

Maryland by not distinguishing between the materiality of evidence

with respect to guilt and the materiality of evidence with respect to

punishment.

The Arkansas Supreme Court rejected Kemp’s claims in two related opinions. The

first opinion deals with Kemp’s initial trial and sentencing—for which he has four

capital murder convictions and one death sentence. Appendix A. The second opinion

deals with Kemp’s resentencing where he was resentenced to three death sentences.

Appendix B. The Arkansas Supreme Court departed from this Court’s precedent

when it failed to separately analyze prejudice as to guilt or penalty. The court’s first

opinion fails to address the impact of the suppressed evidence on Kemp’s mitigation

case and simply concluded the new information could not have changed the outcome

of Kemp’s trial. Appendix A at 8. The court’s opinion as to Kemp’s resentencing

likewise made no effort to distinguish between the impact of the suppressed evidence

at the trial and original sentencing and Kemp’s resentencing. Appendix B.

The Arkansas Supreme Court’s equivocal treatment of the prejudicial impact of

the suppressed evidence departs from this Court’s precedent in Cone v. Bell. Gary

Cone was sentenced to death for the murder of two people he claimed he committed

while suffering from acute psychosis caused by drug addiction. Cone, 556 U.S. at 451.

At trial, the defense’s theory was that Cone’s drug-induced psychosis rendered him

11

legally insane, or at least reduced his moral culpability for sentencing purposes. Id. at

454–55. The state discredited this theory by arguing there was no evidence that Cone

was drug-addicted, and thus no evidence his actions were the result of drug-related

psychosis. Id. The prosecutor described Cone’s actions as “premeditated, cool,

deliberate,” and summarized his claims of drug addiction as “baloney.” Id. at 455-56.

During postconviction proceedings, Cone was granted access to the prosecutor’s

file where he discovered numerous undisclosed witness statements corroborating his

drug use. Armed with this new evidence, he argued the evidence was exculpatory to

both guilt and punishment. The lower courts rejected the claim finding that the

withheld statements would not have overcome the overwhelming evidence of Cone’s

guilt and discounting Cone’s contention that the withheld evidence would have

impacted his sentencing. The lower court reached the question of sentencing

prejudice but summarily found evidence of Cone’s drug use “did not mitigate his

culpability sufficient to avoid the death sentence.” Id. at 464.

It was under these circumstances that this Court granted certiorari and held that

no lower court had “fully considered whether the suppressed evidence might have

persuaded one or more jurors” to vote to imprison Cone for life rather than sentence

him to death. Id. at 475. Although the evidence was immaterial to the jury’s finding of

guilt, it “may well have been material to the jury’s assessment of the proper

punishment in this case.” As such, “a full review of the suppressed evidence and its

effects” was warranted. Id.

12

Like Cone, “the distinction between the materiality of the suppressed evidence with

respect to guilt and punishment is significant in this case.” Id. at 473. Kemp has

maintained since his arrest that he was threatened, that his actions were not

premeditated, and that, even if his belief was unreasonable, he believed he was acting

in self-defense thus mitigating the crime. Whereas the guilt phase of a capital trial

requires a jury to objectively weigh facts in evidence, the penalty phase involves

subjectively weighing mitigating and aggravating factors to arrive at a moral judgment.

Abdul-Kabir v. Quarterman, 550 U.S. 233, 252 (2007) (holding that a jury must be

allowed to give effect to mitigating evidence and to express “its ‘reasoned moral

response’ to that evidence”) (quoting California v. Brown, 479 U.S. 538, 545 (1987)).

Because the jury’s job is different at each stage—the prejudice analysis, too, must be

different.

This Court clearly recognized this distinction in Cone, where it noted a “critical

difference” between the high standard Cone was required to satisfy to establish his

insanity defense and the “far lesser standard that a defendant must satisfy to qualify

evidence as mitigating in a penalty hearing in a capital case.” Cone, 556 U.S. at 474. So

too here. At guilt, the jury had to determine if facts were sufficient to support whether

Kemp indeed acted in self-defense—either to establish an affirmative defense or to

create a reasonable doubt as to whether the crimes were premeditated. But at penalty,

the jury needed only to consider whether Kemp believed he was acting in self-defense.

Even if Mahoney’s statement would not have carried the day in the guilt-phase, her

13

suppressed statement supported Kemp’s belief and provided crucial mitigating

evidence of his mental state. As in Cone, there is a “critical difference” between what

Kemp was required to present and prove to establish self-defense at the guilt phase

and the “possible mitigating effect” evidence of threats would have had at his penalty

phase. Id. at 474.

i.

Guilt phase and penalty phase prejudice require separate analysis.

Whether Kemp was provoked or threatened before he shot his own gun was

essential to his defense at both stages. Indeed, his attorney stated that imperfect selfdefense was “the heart” of Kemp’s defense in the mitigation phase of trial. Kemp v.

State, 60 S.W.3d 404, 407 (Ark. 2001). Evidence that Kemp was threatened or

provoked (or believed that he was) could have affected the jury’s assessment of his

moral culpability at sentencing. See e.g., Tison v. Arizona, 481 U.S. 137, 157 (1987)

(“Many who intend to, and do, kill are not criminally liable at all—those who act in

self-defense or with other justification or excuse. Other intentional homicides, though

criminal, are often felt undeserving of the death penalty––those that are the result of

provocation.”).

Specifically, there are two ways in which Mahoney’s suppressed statement weighed

differently in the penalty phase. First, and most obviously, the suppressed evidence

would have supported Kemp’s related mitigating circumstances. Second, the absence

of the statement permitted the prosecution to push her theory that Kemp was a liar,

he lacked remorse, and he was, as such, more deserving of the death penalty.

14

The defense offered three mitigating circumstances which would have been

supported by the suppressed evidence: that the crime was committed while Kemp was

under emotional distress; that the crime was committed while Kemp was under

unusual pressures; and that Kemp believed he was acting in self-defense. To make

their case during the penalty phase, the defense presented a psychologist who testified

that Kemp’s unique psychological profile made him more likely to overreact to

threats. R 1905–10, RS 1054–58. Mahoney’s statement would have supported these

mitigating circumstances by bolstering Kemp’s claim that he was threatened—or by

establishing that the dynamics between Kemp and the victims were heated and more

than simply a “fight with [his] girlfriend” as the prosecution contended R 1957.

On cross-examination, the prosecutor discredited the defense expert by exploiting

her suppression. Evidence that Kemp was threatened or fearful was relevant to the

psychologist’s assessment and to Kemp’s mitigation, but the prosecutor demeaned

both this theory and the expert by claiming the “only basis” that Kemp was

threatened was Kemp’s own self-serving statement. R 1918. It is true, the psychologist

(and the jury) had no other basis, because the evidence that would have supported

Kemp’s allegations was suppressed.

In Cone, defense counsel emphasized during penalty phase proceedings that the

jury was required to consider whether Cone’s capacity to appreciate the wrongfulness

of his conduct was “substantially impaired as a result of mental disease or defect or

intoxication which was insufficient to establish a defense to the crime but which

15

substantially affected his judgment.” Cone, 556 U.S. at 475. Like Kemp, the State

discredited defense’s experts by arguing their opinions were based solely on Cone’s

claims of drug use “rather than on any independently corroborated sources.” Id. at

455. This Court held that corroborated evidence of Cone’s drug addiction may have

persuaded the jury that Cone did, as he alleged, have a serious drug problem, and that

his drug use may have “played a mitigating, though not exculpating, role in the crimes

he committed.” Id. at 475.

This Court has long held that a jury considering the death penalty may not refuse

to consider, or be precluded from considering, any relevant mitigating evidence with

respect to “defendant’s character or record and any of the circumstances of the

offense that the defendant proffers as a basis for a sentence less than death.” Lockett v.

Ohio, 437 U.S. 586, 604 (1978); Eddings v. Oklahoma, 455 U.S. 104, 114 (1982).

Mitigating evidence is evidence that reduces the defendant’s moral culpability or

blameworthiness and may include not just the circumstances of the offense but any

aspect of a defendant’s character, including their age, background, or mental state. See

e.g., Wiggins v. State, 539 U.S. 510 (2003); Sears v. Upton, 561 U.S. 945, 951 (2010)

(noting that while evidence of his mental condition “might not have made [defendant]

any more likable to the jury… it might well have helped the jury understand [the

defendant], and his horrendous acts.”). Evidence of provocation was essential to

Kemp’s character, his mental state, and the circumstances of the offense. As such,

Mahoney’s suppressed statement was relevant mitigating evidence that the jury was

16

required to consider before imposing a sentence of death. Abdul-Kabir, 550 U.S. at

263-64 (“Before a jury can undertake the grave task of imposing a death sentence, it

must be allowed to consider a defendant’s moral culpability and decide whether death

is an appropriate punishment for that individual in light of his personal history and

characteristics and the circumstances of the offense.”).

The prosecutor also exploited her suppression to hit at one of the core jury

concerns in a sentencing phase—remorse. The prosecutor called Kemp’s claims that

he was threatened “a pack of lies” that demonstrated he had “[n]o remorse. No

feeling about the lives he’s taken.” It was an egregious and unconstitutional act to not

only suppress a statement which would have corroborated Kemp’s claim, but to then

argue his now-unsupported claim showed he was lying after-the-fact and thus had no

remorse. That argument, and the suppression which allowed it, likely had a great

impact on the jury’s decision to return a death sentence. See e.g., Scott E. Sundby, The

Capital Jury and Absolution: The Intersection of Trial Strategy, Remorse, and the Death Penalty,

83 Cornell L. Rev. 1157, 1558 (Sept. 1998) (“[J]urors frequently cited a defendant’s

lack of remorse as a significant factor in precipitating their decision to impose the

death penalty.”); Michael A. Simons, Born Again on Death Row: Retribution, Remorse, and

Religion, 43 Cath. Law 311, 322 (2004) (“The importance of a defendant’s remorse in

capital sentencing is well documented.”); Theodore Eisenberg, Stephen P. Garvey, &

Martin T. Wells, But was he sorry? The Role of Remorse in Capital Sentencing, 83 Cornell L.

Rev. 1599, 1633 (Sept. 1998) (“In short, if [South Carolina] jurors believed the

17

defendant was sorry for what he had done, they tended to sentence him to life

imprisonment, not death.”).

Recognition of the suppression’s impact on the jury’s moral decision is likewise

dictated by Cone. There, the prosecutor discredited Cone’s claims of drug addiction as

“baloney,” and emphasized that the jury was “not dealing with a crazy person, an

insane man…” but “a murderer” whose actions were “premeditated, cool, deliberate.”

Cone, 556 U.S. at 455-56. At Kemp’s trial, the prosecution’s theory was that Kemp,

unprovoked and unremorsefully, slayed four unsuspecting people. Just as this Court

found in Cone, there is a reasonable probability that Mahoney’s suppressed statement

may have persuaded just one juror that Kemp was not lying, that he was under a

sincere belief that they were threatening him, or at the very least, that he was not so

remorseless as to deserve the death penalty. If there is a reasonable probability that at

least one juror would have “struck a different balance regarding [Kemp’s] moral

culpability” at sentencing, then Kemp has established prejudice. Andrus v. Texas, 140

S. Ct. 1875, 1886 (2020).

CONCLUSION

The petition for a writ of certiorari should be granted.

18

Cite as 2021 Ark. 173

SUPREME COURT OF ARKANSAS

No. CR-95-549

Opinion Delivered: October 7, 2021

TIMOTHY WAYNE KEMP

PETITIONER PETITION TO REINVEST

JURISDICTION IN THE TRIAL

COURT TO CONSIDER A

V.

PETITION FOR A WRIT OF

ERROR CORAM NOBIS [PULASKI

STATE OF ARKANSAS

RESPONDENT COUNTY CIRCUIT COURT, FIRST

DIVISION, NO. 60CR-93-2903]

HONORABLE MARION A.

HUMPHREY, JUDGE

PETITION DENIED.

SHAWN A. WOMACK, Associate Justice

Nearly three decades have passed since Timothy Kemp murdered David Wayne

Helton, Richard “Bubba” Falls, Robert “Sonny” Phegley, and Sonny’s daughter Cheryl

Phegley. Kemp has never denied killing his victims. The dispute has instead centered on

what precipitated the shootings. From the time of his arrest, Kemp has insisted he acted in

self-defense. The State of Arkansas, on the other hand, maintains that he slaughtered his

victims in an anger-fueled rampage. The jury rejected Kemp’s version of events and

sentenced him to death for each murder.

Kemp now claims he was convicted and sentenced to death in violation of the rule

in Brady v. Maryland, 373 U.S. 83 (1963), which requires the prosecution to disclose

evidence in its possession that is material to the defense. He accuses the prosecution of

Appendix A

withholding material evidence that would have prevented his convictions and sentences by

bolstering his assertion of self-defense. To rectify the alleged Brady violations, Kemp asks

this court to reinvest jurisdiction in the circuit court so that he may pursue a writ of error

coram nobis. We decline to do so.

I.

Kemp spent the day of October 4, 1993, drinking and driving around with his

longtime girlfriend, Becky Mahoney. That evening, the couple stopped by Wayne Helton’s

trailer to visit with Wayne, Sonny Phegley, and Cheryl Phegley. Bubba Falls, whom the

couple did not know, was also there. After hours of dancing and drinking, Kemp became

angry with Becky. Jealous that she had danced with Wayne, Kemp wanted her to leave with

him. Fearing Kemp’s temper, she refused. Cheryl intervened and told Kemp to leave. As he

drove away in his truck, he warned Becky she would be sorry for not leaving.

Kemp made good on his threat. After driving—either around the neighborhood or

to his mother’s house, where he and Becky lived—Kemp returned to the trailer with his

.22 rifle. His truck had a distinctive sound, so he parked roughly fifty yards away, walked to

the trailer door, and knocked. When Wayne opened the door, Kemp opened fire. He shot

Wayne four times: twice each in his face and chest. The facial wounds were at close range

and consistent with Wayne lying face upward when shot. As Kemp recounted to his friend

Bill Stuckey later that night, Wayne fell “like a sack of taters.” Kemp then shot Sonny in

the arm and head. Bubba, whom Kemp told Stuckey was “just in the wrong place at the

wrong time,” was shot in the chest. Kemp turned last to Cheryl. He followed her as she

crawled down the hallway and into a nearby bedroom. As she screamed out for her life,

2

Appendix A

Kemp assured her that she was going to die before gunning her down. Kemp shot Cheryl

five times, including twice in the back and once in the head.

Becky was the sole survivor. After hearing the knock at the door, she feared Kemp

had returned for her. She was told to hide in the bedroom, and the others would tell Kemp

she had walked home. As she headed toward the bedroom, she paused in the hallway. Once

she heard gunfire and saw Bubba and Cheryl fall to the floor, she ran into the back bedroom

closet. Kemp did not find her. Becky emerged after the gunfire ceased and saw Wayne,

Sonny, and Bubba on the floor. She called 911. While on the phone, she heard Kemp’s

truck start up outside. Officers soon arrived and found the bodies of the four victims inside

the trailer. Wayne and Sonny had been shot down near the front door. An unfired .32

caliber pistol was on the floor between them. The magazine contained seven live rounds

but no round was chambered. Bubba’s body was found on the other end of the living room.

After following a trail of spent .22 casings, officers found Cheryl’s body partially inside the

front bedroom closet.

Meanwhile, Kemp went home, hid the rifle in his mother’s closet, and changed

clothes. He then drove to Stuckey’s house for gas money to get out of town. Kemp told

Stuckey he had shot Wayne, Sonny, Cheryl, and “some guy he didn’t know” because

“[t]hey ran him off and kept Becky there and wouldn’t let her leave with him.” He

mentioned that Cheryl had “started all the argument” and “wouldn’t let Becky leave with

him or said that Becky did not have to leave with him and that he needed to leave.” After

that, Kemp said he went home, retrieved his gun, returned to the trailer, and shot everyone

except Becky, who he was unable to find. Kemp told Stuckey he could hear his victims

3

Appendix A

gasping for breath as he left the trailer. Kemp was soon arrested at Stuckey’s house and

charged with four counts of capital murder.

Given the evidence of guilt, trial counsel strategically focused on a mitigation case at

the 1994 trial. Counsel argued that a heavily intoxicated Kemp, whose personality had been

misshapen by an abusive and violent upbringing, overreacted and lashed out in imperfect

self-defense. The Pulaski County jury did not accept that argument as valid. He was

convicted and sentenced to death for each murder. We affirmed the convictions but only

affirmed the sentence for Bubba’s murder based on issues surrounding the aggravating

circumstances. See Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996). On remand, the

jury again imposed death. We affirmed. See Kemp v. State, 335 Ark. 139, 983 S.W.2d 383

(1998).

We later affirmed the denial of Rule 37 relief. See Kemp v. State, 348 Ark. 750, 74

S.W.3d 224 (2002). In 2005, the federal district court stayed Kemp’s habeas case so he could

return to state court to exhaust ineffective assistance claims. During the stay, Kemp filed a

successive Rule 37 petition. We dismissed for lack of jurisdiction because the mandate had

not been recalled. In 2010, we denied his motion to recall the mandate. Later that year, we

denied by syllabus entry his request to reinvest jurisdiction in the circuit court for coram

nobis relief. In that request, Kemp alleged the prosecution withheld evidence about Becky’s

medical and psychiatric history. He also alleged that the prosecution withheld collateral

details of Stuckey’s criminal convictions occurring after trial and before resentencing.

Kemp returned to federal court. He claimed that in 2013, he was given prosecutor

notes that indicated the State gave false information and withheld evidence. According to

4

Appendix A

the notes, Becky stated Wayne had been “messing” with Kemp on the night of the murder

and had a pistol, which he planned to use to scare Kemp if he returned. Kemp also claimed

it showed there was a rifle in the trailer that did not belong to him. The federal district court

concluded Kemp failed to demonstrate facts sufficient to establish by clear and convincing

evidence that no reasonable fact finder would have found him guilty absent the

constitutional error. See Kemp v. Kelley, No. 5:03-cv-55-DPM, 2015 WL 5842538 (E.D.

Ark. Oct. 6, 2015). The court observed that: (1) whether the group provoked Kemp was

immaterial given the time Kemp had to cool off before returning to murder everyone; (2)

sufficient evidence supported guilt even without Becky’s testimony; and (3) this court

previously considered the issue of another weapon and determined it would not have

changed the outcome. Id. The federal district court later denied Kemp’s request for a second

stay in order to exhaust the prosecutor note claim in state court, holding that Kemp had not

diligently pursued the claim and that it lacked factual merit. See Kemp v. Hobbs, No. 5:03cv-55-DPM, 2012 WL 2505229 (E.D. Ark. June 28, 2012). The Eighth Circuit affirmed.

See Kemp v. Kelley, 924 F.3d 489 (8th Cir. 2019).

It is with this background in mind that we turn to Kemp’s second petition to reinvest

jurisdiction in the circuit court to pursue coram nobis relief.

II.

A petition like Kemp’s must surmount a high bar. A writ of error coram nobis is an

extraordinarily rare remedy. Indeed, it is more known for its denial than its approval. See

Newman v. State, 2009 Ark. 539, at 4–6, 354 S.W.3d 61, 65. Under established precedent,

coram nobis proceedings are attended by a strong presumption that the conviction is valid.

5

Appendix A

Id. The writ is allowed only under compelling circumstances to achieve justice and to

address errors of the most fundamental nature. Id. It functions to secure relief from a

judgment rendered while there existed some fact that would have prevented its rendition

had it been known to the circuit court and which, through no negligence or fault of the

defendant, was not brought forward before rendition of judgment. Id. Where the writ is

sought after judgment has been on affirmed on appeal, the circuit court may entertain the

petition only after this court grants permission. Id. We will do so only when it appears that

the proposed attack on the judgment is meritorious. Id. In making such a determination,

we look to the reasonableness of the allegations within the petition and to the existence of

the probability of the truth thereof. Id.

The writ is available only to address errors falling within specific categories including,

as relevant here, material evidence withheld by the prosecution. See Ventress v. State, 2015

Ark. 181, at 2, 461 S.W.3d 313, 315 (per curiam). This category is consistent with the

violation of a defendant’s right under Brady v. Maryland, 373 U.S. 83, to be shown

exculpatory evidence that is in the prosecution’s possession. See Howard v. State, 2012 Ark.

177, at 8, 403 S.W.3d 38, 44. There are three elements of a Brady violation: (1) the evidence

at issue must be favorable to the accused, either because it is exculpatory, or because it is

impeaching; (2) the evidence must have been suppressed by the State, either willfully or

inadvertently; and (3) prejudice must have ensued. Id.

Kemp claims the writ is warranted to address four issues. Each issue is based on alleged

Brady violation. First, he points to the prosecutor’s note discovered in 2013 regarding

Mahoney’s conversation with Wayne in the time between Kemp’s departure and return.

6

Appendix A

Second, Kemp learned in 2013 that a rifle was purportedly discovered in the trailer after the

crime scene was processed. Third, Kemp reasserts his 2010 claim that prosecutors failed to

obtain and disclose records regarding Becky’s emergency psychiatric care before and during

trial. And last, Kemp reasserts the prosecutor’s failure to disclose collateral details regarding

Stuckey’s criminal convictions occurring after trial but before resentencing.

The State opposes reinvestiture on two bases. It first contends that Kemp failed to

diligently pursue his claims. Even if the petition were timely, the State argues that the claims

within the petition are wholly without merit. Because we resolve this matter on the merits,

and agree with the State, we need not consider whether Kemp diligently pursued his claims.

A.

We begin with Kemp’s argument regarding statements that Becky made during an

interview with the prosecutor. According to the prosecutor’s notes, Wayne had shown

Becky a pistol and told her that he planned to use it to scare Kemp should he return. The

note specifically stated that “Wayne showed Becky a pistol that he had + said he would use

it to scare Tim.” According to Kemp, this statement corroborated his version of events

leading up to the murders that night. Even assuming the prosecution wrongfully failed to

disclose this evidence, there is no prejudice under Brady and no reasonable probability that

the outcome of the trial would have been different had defense counsel been provided with

the evidence.

The prosecutor’s note, at most, suggests that Becky saw a gun and was aware of a

plan to “scare” Kemp should he return during a time that Kemp was not at the trailer. There

is no suggestion in the notes that Kemp was indeed threatened with or saw a gun prior to

7

Appendix A

murdering his victims. Even so, the jury was well aware that a pistol not belonging to Kemp

was at the crime scene. The unfired .32 caliber pistol found between Sonny and Wayne’s

bodies was clear evidence that a gun, other than the murder weapon, was at the trailer that

night. The jury was allowed to weigh that evidence against Kemp’s claims of self-defense.

It was also entitled to weigh the presence of that pistol against Becky’s testimony that she

had not seen a gun during the night. Based on the record, the alleged failure of the

prosecution to disclose this note does not warrant granting Kemp’s petition. There is no

reasonable probability that Wayne’s out of court statement to Becky during a period when

Kemp was indisputably not at the trailer would have changed the outcome of his trial.

B.

For his second claim, the basis of which he discovered in 2013, Kemp asserts that a

rifle found in Wayne’s trailer by his girlfriend after investigators had processed the crime

scene was suppressed evidence supporting his self-defense claims. This alleged information

was discovered following a dispute between Wayne’s ex-wife and his fiancée. After the

murder, the fiancée claimed to have found a rifle in his trailer that she subsequently sold. In

2013, the fiancée provided Kemp with a declaration. However, there is no indication of

how the declaration came to be created. Nor is there any explanation by the fiancée as to

where in the trailer she found the rifle. Even assuming the veracity of the declaration, the

mere existence of a rifle in the trailer does not implicate its use during the night of the crime.

Significantly, the record shows that officers searched the areas of the trailer where

the murders occurred. Additionally, the investigator testified that he looked through the

trailer for other weapons but did not find anything. If Kemp’s recollection of events to

8

Appendix A

police were correct, a rifle would have been found in the area where the murders occurred.

Four of the five individuals in the trailer were dead and could not have moved a rifle. There

is no evidence that Becky hid or removed a rifle in the time between the murders and when

police arrived. Indeed, she remained on the phone with the dispatcher until the police

showed up. Thus, even if a rifle was somewhere in the trailer, there is no evidence to support

the claim that it was present during the crime or used to threaten Kemp at any time.

C.

Kemp next claims he was deprived of access to Becky’s medical and psychiatric

records regarding PTSD treatment she received in the time leading up to his trial. He also

claims he was wrongfully deprived of information regarding the involvement of the victimwitness unit of the prosecutor’s office with helping her obtain that treatment. As noted

above, this is not the first time Kemp has raised this claim to this court. It was first presented

over a decade ago in his 2010 coram nobis petition. Once again, this claim fails to meet the

standard for reinvestiture.

Kemp contends this information would have been favorable impeachment evidence.

Though Becky testified that she had been in rehab since the murders, Kemp points out the

prosecution did not disclose that Becky had been in rehab the day before her testimony.

There is no evidence that the State had Becky’s records. Had it obtained the records, there

is nothing to suggest the records could have possibly benefitted Kemp. Indeed, Becky’s care

was sought specifically because of the resulting trauma from surviving the murders that

night. If anything, this evidence could have been helpful to the State’s victim-impact case.

Moreover, even if the records could have been used to impeach Becky, there is no

9

Appendix A

reasonable chance that the records would have resulted in a different outcome given the

overwhelming evidence of guilt.

D.

For his final point, Kemp contends that reinvesting jurisdiction is warranted because

the prosecution downplayed Stuckey’s legal troubles occurring between the 1994 trial and

the 1997 resentencing. He suggests that Stuckey sugared his testimony at resentencing to

please the prosecutor and secure lighter consequences for his criminal behavior. Had the

prosecution disclosed the collateral details of Stuckey’s criminal history, Kemp argues he

could have attacked Stuckey’s credibility before the jury. This argument is not new. Like

the claim above, this argument was raised and rejected in Kemp’s 2010 coram nobis petition.

We are once again unpersuaded.

A comparison of Stuckey’s testimony during trial and resentencing reveals no

meaningful difference. Indeed, his testimony at both trials was virtually identical except for

two statements. During both trials, Stuckey testified that Kemp showed up to his house in

the middle of the night, awakened him, and borrowed gas money to get out of town. For

the next hour or so, before police arrived, Kemp recounted the horrific details of the

quadruple homicide he had committed earlier that night. During resentencing, Stuckey

stated for the first time that Kemp characterized Wayne’s falling to the ground “like a sack

of taters” after Kemp shot him. He also stated that once police arrived, Kemp handed back

the gas money he had borrowed and walked outside.

Kemp’s effort to build an argument for the writ around these two statements is futile.

They do not contradict any of his testimony and do not expand beyond what he testified to

10

Appendix A

during the first trial. The addition of these two statements does not support Kemp’s claim

that Stuckey expanded his testimony at resentencing as a means to please the prosecutor and

receive favorable treatment for his recent legal issues. Simply put, disclosure of the collateral

details surrounding Stuckey’s criminal convictions do not create a reasonable probability

that the jury would have reached a different conclusion during the resentencing trial.

Reinvestiture is not warranted on this point.

III.

We decline to reinvest jurisdiction in the circuit court so that Kemp may pursue a

writ of error coram nobis. Contrary to Kemp’s view, there is no reasonable probability that

disclosure of the evidence to the defense would have resulted in a different outcome. As a

result, the proposed attack on the judgment is wholly without merit.

Petition denied.

KEMP, C.J., and HUDSON, J., concur.

COURTNEY RAE HUDSON, Justice, concurring. I agree with the majority that

Timothy Wayne Kemp’s application for coram nobis relief may be denied based on its lack

of apparent merit, and I fully join that opinion. I write separately, however, to also

emphasize Kemp’s lack of diligence in pursuing the present application. Although there is

no specific time limit in seeking a writ of error coram nobis, we have held that due diligence

is required in making an application for relief, and in the absence of a valid excuse for the

delay, the petition will be denied. Scott v. State, 2017 Ark. 199, 520 S.W.3d 262; Echols v.

State, 354 Ark. 530, 127 S.W.3d 486 (2003). Due diligence requires that (1) the defendant

be unaware of the fact at the time of trial; (2) the defendant could not have, in the exercise

11

Appendix A

of due diligence, presented the fact at trial; and (3) upon discovering the fact, the defendant

did not delay in bringing the petition. Scott, supra.

Kemp admits that he discovered the facts giving rise to his current claims in 2013

while pursuing discovery in his federal habeas proceedings. However, he then waited seven

years to bring the claims before this court. The State asserts that Kemp’s pursuit of his claims

in federal court does not excuse his seven-year delay and that his application should be

denied on this basis.

I agree that Kemp has failed to demonstrate diligence. Kemp’s petition and attached

exhibits support his position that he was not aware of the new facts until 2013. However,

he then purposely delayed filing his second application for error coram nobis relief until

2020, after the conclusion of his federal habeas proceedings and associated appeals. Kemp’s

September 2014 reply in federal district court recognized that a second application in state

court was an available and potentially meritorious remedy for his Brady claims. Nonetheless,

even after the district court dismissed his habeas petition, he instead chose to appeal rather

than return to state court.

Kemp cites our decision in Newman v. State, 2009 Ark. 539, 354 S.W.3d 61, to

support his contention that the federal litigation excused his delay. In Newman, we rejected

the State’s argument that the petitioner lacked diligence when he had chosen to first seek

relief in federal court. However, we based our decision on the unique facts in that case and

did not announce a blanket exception to the diligence requirement for those petitioners

involved in federal litigation.

The petitioner in Newman had meritorious claims of

incompetence and had not cooperated with appointed counsel in postconviction

12

Appendix A

proceedings in state court, issues that are not present in Kemp’s case. Newman, 2009 Ark.

539, at 11–12, 354 S.W.3d at 67–68. As Kemp asserts, we also relied on the State’s

inconsistency in Newman by first maintaining that state-court remedies were not available

to Newman and then later arguing that the state-court petition should have been filed

earlier. Id. at 12, 354 S.W.3d at 68. While Kemp claims that the State made the same

inconsistent arguments here, it is clear from his pleadings in federal court that he was aware

he could seek further state-court relief but chose not to do so until years later. Accordingly,

the situation in Newman is distinguishable, and this court could have chosen to deny Kemp’s

application based on his lack of diligence rather than on its lack of apparent merit. See also

Pinder v. State, 2012 Ark. 45, at 4 (per curiam) (stating that the petitioner cited “no authority

in support of the proposition that pursuing other types of postconviction relief, such as a

petition under Rule 37.1 or a petition for writ of habeas corpus in federal court, will excuse

a delay in pursuing coram nobis relief.”). Our coram nobis jurisprudence requires that a

petitioner not delay in bringing claims to this court’s attention, and I caution Kemp, as well

as future petitioners, that pending federal proceedings will not necessarily excuse such a

delay.

KEMP, C.J., joins.

Julie Pitt Vandiver, Ass’t Fed. Pub. Def., for appellant.

Leslie Rutledge, Att’y Gen., by: Kent G. Holt, Ass’t Att’y Gen., for appellee.

13

Appendix A

SUPREME COURT OF ARKANSAS

No. CR-98-463

Opinion Delivered: October 7, 2021

TIMOTHY WAYNE KEMP

PETITION TO REINVEST

PETITIONER JURISDICTION IN THE TRIAL

COURT TO CONSIDER A

V.

PETITION FOR WRIT OF ERROR

CORAM NOBIS [PULASKI

STATE OF ARKANSAS

COUNTY CIRCUIT COURT, FIRST

RESPONDENT DIVISION NO. 60CR-93-2903]

HONORABLE MARION

HUMPHREY, JUDGE

PETITION DENIED.

COURTNEY RAE HUDSON, Associate Justice

Petitioner Timothy Wayne Kemp has filed his second application to reinvest

jurisdiction in the Pulaski County Circuit Court to consider a petition for writ of error

coram nobis. Kemp petitions for relief in both CR-95-549, his first direct appeal from his

capital-murder convictions and death sentences, and CR-98-463, his second direct appeal

following the resentencing hearing. See Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996)

(CR-95-549); Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998) (CR-98-463). Kemp’s

petitions in both cases are identical. For the reasons stated in our separate opinion issued

today in Kemp v. State, 2021 Ark. ___, CR-95-549, we also deny his petition in the current

case.

Petition denied.

Appendix B