            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT KNOXVILLE
                              Assigned on Briefs August 20, 2014

            DEXTER FRANK JOHNSON v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Hamilton County
                         No. 290380    Barry A. Steelman, Judge


                 No. E2014-00659-CCA-R3-ECN - Filed December 23, 2014


Pro se Petitioner, Dexter Frank Johnson, appeals the summary dismissal of his third motion
seeking to reopen his post-conviction proceedings and/or the denial of a writ of coram nobis
by the Criminal Court of Hamilton County.1 He further claims that the post-conviction court
erred by failing to appoint counsel to assist him with his petition because he is illiterate.
Upon our review, we affirm the judgment of the post-conviction court.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS, J., and D AVID A. P ATTERSON, S P. J., joined.

Dexter Frank Johnson, Clifton, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; William H. Cox, III, District Attorney General; and Dave Denny, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                                OPINION

        On February 11, 1994, and pursuant to a plea agreement, the Petitioner entered guilty
pleas to two counts of first degree murder, one count of attempted first degree murder, and
one count of attempted aggravated burglary. In exchange for his guilty plea, the Petitioner
received a sentence of life for the two first degree murder convictions, twenty-five years for
the attempted first degree murder conviction, six years for the attempted aggravated burglary


        1
          The transcripts from the guilty plea colloquy and the post-conviction hearing as well as the
Petitioner’s affidavit in support of his motion for appointed counsel reference the fact that the Petitioner is
unable to read and write.
conviction, and dismissal of “all remaining charges against [the Petitioner] based on episodes
that [he] was involved in contemporaneous” to the instant offenses.2 All of these sentences
were ordered to be served concurrently. The factual basis supporting the Petitioner’s guilty
pleas provided, in pertinent part, the following:

       [O]n March 18 th [the Petitioner] in the company of at least two other
       individuals traveled to a location on Glass Street in Chattanooga. The parties
       visited a market which was adjacent to a liquor store and then quickly came
       back to the liquor store. . . . [The Petitioner] entered the liquor store, known
       as Sandy’s Liquor Store, that he approached the counter, and there encountered
       Donald Sirhan. There was some sort of altercation at that scene, the result of
       which was that [the Petitioner] fired a shot and this shot had entered the left
       shoulder - - arm of Donald Sirhan. . . . As Donald Sirhan had attempted to run
       back through the storage counter area . . . [the Petitioner] proceeded after Mr.
       Sirhan . . . but was unable to locate him immediately.

       ....

       The other party present was Sandy Sirhan, the sister of the decedent, the victim
       in this case. She was also present in the back stock room and she also started
       to flee upon hearing the shot and hearing a warning given by the decedent,
       Donald Sirhan. [The Petitioner] was able to track Sandy Sirhan around the
       side of this Lookout Beverage truck and she fell to the ground. While on the
       ground [the Petitioner] using a .38 caliber weapon fired one time and shot
       Sandy Sirhan in the abdomen area. Donald Sirhan hearing this shot and
       hearing his sister had doubled back from his apparent escape . . . . It was
       sometime around this point [the Petitioner] was able to point a .38 at him . . .
       and [the Petitioner] [fatally] shot Donald Sirhan one time in the back.

       ....

       Sandy Sirhan did not realize under the stress of the event that she had been
       shot until some 10 to 12 minutes later. And that is the basis for the attempt
       first degree murder case to which [the Petitioner] is pleading guilty[.]

       ....




       2
           The remaining charges were not specified at the guilty plea hearing.

                                                    -2-
[In regard to the other first degree murder,] [t]here was some animosity
between [the Petitioner and Ray Crawford, the victim,] and the killing of Ray
Crawford occurred on May 10, 1992. This offense occurring roughly two
months after the Sirhan killing and the shooting of Sandy Sirhan. This killing
was also committed with a .38 and this was a killing that was committed when
[the Petitioner] leveled the .38 at the head of Ray Crawford at point-blank
range and fired, killing him. The wound was instantly fatal. . . . the reason [the
Petitioner] killed Ray Crawford was to silence him because . . . , Ray
Crawford, had threatened to go to the grand jury with information about the
Sandy’s Liquor Store shooting and the killing of Donald Sirhan.

....

The proof in the [Ray Crawford case] would have been buttressed by, as well
as the Sirhan case, it would have been buttressed by some recordings that were
made in the Hamilton County jail after [the Petitioner] was incarcerated. The
State’s prosecution of this case was greatly facilitated by [the Petitioner’s] own
statements to other inmates. Other inmates had come forward and mentioned
this to law enforcement authorities without any solicitation on the part of the
State. Statements were taken from at least two inmates as to the killings
involved. [The Petitioner] was already under arrest and in custody for the
killing of Ray Crawford at the time these statements were made. And based
upon that fact the State’s concerned that there might be Sixth Amendment
violations in attempting to question [the Petitioner], who had already invoked
and had counsel in that killing of Ray Crawford, it was decided that we would
do some recordings and try to get information about the killing of Donald
Sirhan because [the Petitioner] was not under arrest for that case. The
recordings . . . were very damaging to [the Petitioner]. [The Petitioner] made
devastating admissions about his involvement in these killings. That is how
the State knows the theory by which he did indeed kill Ray Crawford.

....

[The attempted aggravated robbery case] involved an entirely separate episode
where [the Petitioner] had called for a pizza and asked that it be delivered. . .
. Dale Holt was a Pizza Hut delivery man who responded to the call with the
pizza. [The Petitioner] never intended to pay for this pizza as he informed Mr.
Holt when Mr. Holt emerged from the car . . . [the Petitioner] again leveled a
.38 in the face of Mr. Holt and informed him that he would have the pizza for



                                       -3-
       free. Mr. Holt attempted to turn and run. [The Petitioner] did fire once in his
       direction with the bullet entering [Mr. Holt’s] car[.]

        In November 1994, the Petitioner filed a petition for post-conviction relief, asserting
that his guilty pleas were not knowingly and voluntarily entered. Specifically, the Petitioner
alleged that there was no factual basis for his guilty pleas, that he was mentally incompetent,
and that the trial court failed to comply with Boykin v. Alabama, 395 U.S. 238 (1969). This
court affirmed the trial court’s denial of post-conviction relief. Dexter Johnson v. State, No.
03C01-9503-CR-00088 (Tenn. Crim. App. Feb. 6, 1996), perm. app. denied (Tenn. Nov. 9,
1998). The Petitioner subsequently filed two motions to reopen his post-conviction
proceedings in 2001 and 2010, both of which were denied. See Dexter Johnson v. State, No.
E2010-01038-CCA-R3-PC, 2010 WL 4296604, at *2 (Tenn. Crim. App. Oct. 28, 2010)
(claiming that his life sentences were illegal and failed to comply with the requirements of
the 1989 Sentencing Reform Act).

        The Petitioner also filed five unsuccessful petitions for habeas corpus relief claiming
ineffective assistance of counsel and challenging the voluntary nature of his guilty pleas. See
Dexter F. Johnson v. State, No. M2013-00965-CCA-R3-HC, 2013 WL 6164081 (Tenn.
Crim. App. Nov. 21, 2013), perm. app. denied (Mar. 5, 2014) (claiming that his judgments
were void because his guilty plea “constituted an ex post facto violation” and that the State
failed to comply with Tennessee Code Annotated section 29-21-116); Dexter F. Johnson v.
Carlton, Warden, E2008-02032-CCA-R3-HC, 2010 WL 323126 (Tenn. Crim. App. Jan. 27,
2010), perm. app. denied (Tenn. June 30, 2010) (alleging that his sentences were void
because the trial court failed to state on the record the enhancement and mitigating factors
and that his judgment forms did not properly reflect concurrent or consecutive sentencing);
Dexter Frank Johnson v. Tony Parker, Warden, No. E2006-00313-CCA-R3-HC, 2007 WL
1259205 (Tenn. Crim. App. Apr. 30, 2007), perm. app. denied (Tenn. Aug. 13, 2007)
(claiming that his guilty pleas “resulted from the induced threats of death penalty” and that
the trial court failed to advise him of his “constitutional rights”); Dexter Frank Johnson v.
State, No. E2004-01260-CCA-R3-HC, 2004 WL 1945744 (Tenn. Crim. App. Sept. 2, 2004),
perm. app. denied (Tenn. Dec. 20, 2004) (claiming trial counsel conspired with the
prosecutor by having another defendant wear a wiretap in an effort to obtain evidence
regarding charges to which the petitioner ultimately pled guilty); Dexter Johnson v. State,
No. 03C01-9707-CR-00241, 1999 WL 41837 (Tenn. Crim. App. Feb. 2, 1999), perm. app.
denied (Tenn. Jun. 14, 1999) (claiming trial counsel failed to properly investigate his charges
and that at the time of the offense “he was on ‘powerful tranquilizers . . . that . . . made him
paranoid’”).

       On January 2, 2014, the Petitioner filed the instant motion for post-conviction relief
and/or writ of error coram nobis along with a motion for appointment of counsel. In effect,

                                              -4-
the Petitioner claimed that “because the courts failed to inform him of the conflict of interest,
they denied him the right to due process.” The Petitioner attached the following to his
motion: (1) a copy of the transcript from the guilty plea hearing, listing Paul Bergman,
counsel for the Petitioner, as an “Assistant Public Defender”; (2) a copy of the transcript
from the post-conviction hearing; (3) medical records dated 1992, 1993, 1994; (4) an October
29, 2004 letter from Attorney Hank Hill in response to a Board of Professional Responsibility
inquiry, which notes that Hill did not represent the Petitioner and that Hill’s sole involvement
in the Petitioner’s case was signing the “motion to withdraw on behalf of the Public
Defender’s Office, based on the fact that the Public Defender’s Office had represented other
defendants who were prepared to testify against the [Petitioner] based on electronically
monitored conversations between those defendants and [the Petitioner]”; (5) a motion to
withdraw from representing the Petitioner filed by the Public Defender’s Office on January
13, 1993; and (6) copies of the judgments of conviction in the instant case, designating Paul
Bergman, counsel for the Petitioner, as appointed counsel. On March 14, 2014, the
post-conviction court summarily denied relief and provided its reasoning in a six-page,
detailed written order. It is from this order that the Petitioner now appeals.

                                                ANALYSIS

        As we understand the Petitioner’s claim, he argues that his 1994 guilty pleas were not
entered knowingly and voluntarily because his counsel at the time, Paul Bergman, had “an
actual conflict of interest.” He specifically contends that Paul Bergman worked for the
District Public Defender’s Office at the time of the guilty pleas, and that the District Public
Defender’s Office simultaneously represented other inmates who recorded inculpatory
conversations with the Petitioner while incarcerated. The State contends that the post-
conviction court properly denied relief. We agree with the State.

       At the time of the Petitioner’s guilty pleas, the Post-Conviction Procedure Act
provided that a prisoner in custody under sentence of a court of Tennessee was required
petition for post-conviction relief within three (3) years of the date of the final action of the
highest state appellate court to which an appeal is taken or consideration of such petition
shall be barred. T. C. A. §40-30-102 (repealed 1995).3 The new Act, which governs all


        3
          Because the Petitioner’s three-year statute of limitations under the old act had not expired on May
10, 1995, the effective date of the new act, the Petitioner’s right to petition for post-conviction relief
continued under the new act. See Carter v. State, 952 S.W.2d 417, 419-20 (Tenn.1997). However, the
Compiler’s Notes to Tennessee Code Annotated section 40-30-201 state that under the new act a petitioner
must file his petition for post-conviction relief or motion to reopen a petition within one year of the effective
date of the new act. All subsequent filings for post-conviction relief will be governed by the new Act. See
Compiler’s Notes to T.C.A. § 40-30-201 (Supp. 1995).

                                                      -5-
filings after May 10, 1996, further provided that “[i]n no event may more than one (1)
petition for post-conviction relief be filed attacking a single judgment.” Moreover, “[i]f a
prior petition has been filed which was resolved on the merits by a court of competent
jurisdiction, any second or subsequent petition shall be summarily dismissed.” T.C.A. § 40-
30-102(c). In order to determine whether the Petitioner is entitled to reopen his petition for
post-conviction relief, the Petitioner must make a claim falling within the three narrow
exceptions outlined in Tennessee Code Annotated section 40-30-117(a):

       (1) The claim in the motion is based upon a final ruling of an appellate court
       establishing a constitutional right that was not recognized as existing at the
       time of trial, if retrospective application of that right is required. The motion
       must be filed within one (1) year of the ruling of the highest state appellate
       court or the United States supreme court establishing a constitutional right that
       was not recognized as existing at the time of trial; or

       (2) The claim in the motion is based upon new scientific evidence establishing
       that the petitioner is actually innocent of the offense or offenses for which the
       petitioner was convicted; or

       (3) The claim asserted in the motion seeks relief from a sentence that was
       enhanced because of a previous conviction and the conviction in the case in
       which the claim is asserted was not a guilty plea with an agreed sentence, and
       the previous conviction has subsequently been held to be invalid, in which case
       the motion must be filed within one (1) year of the finality of the ruling
       holding the previous conviction to be invalid; and

       (4) It appears that the facts underlying the claim, if true, would establish by
       clear and convincing evidence that the petitioner is entitled to have the
       conviction set aside or the sentence reduced.

T.C.A. § 40-30-117(a) (2011).

       Upon the post-conviction court’s denial of a motion to reopen a petition for post-
conviction relief, Tennessee Code Annotated section 40-30-117(c) requires the petitioner to
file an application with this court for permission to appeal within ten days of the
post-conviction court’s order. This statute makes an appeal from the post-conviction court’s
denial of a motion to reopen a petition for post-conviction relief discretionary and not as of
right. Accordingly, a petitioner’s attempt to appeal the denial of his motion through the filing
of a Rule 3 notice of appeal is improper and dismissible on this ground alone. See Dexter



                                              -6-
Johnson v. State, No. E2010-01038-CCA-R3-PC, 2010 WL 4296604, at *2 (Tenn. Crim.
App. Oct. 28, 2010).

         To the extent that the Petitioner additionally claims he is entitled to coram nobis
relief, we are guided by the following legal framework. A writ of error coram nobis is an
“extraordinary procedural remedy” that “fills only a slight gap into which few cases fall.”
State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999) (citing Penn v. State, 670 S.W.2d 426,
428 (Ark. 1984)); State v. Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002). The
Tennessee Supreme Court has distinguished a motion to reopen a post-conviction petition
from a petition for writ of error coram nobis:

       The grounds for seeking a petition for writ of error coram nobis are not limited
       to specific categories, as are the grounds for reopening a post-conviction
       petition. Coram nobis claims may be based upon any “newly discovered
       evidence relating to matters litigated at the trial” so long as the petitioner also
       establishes that the petitioner was “without fault” in failing to present the
       evidence at the proper time. Coram nobis claims therefore are singularly
       fact-intensive. Unlike motions to reopen, coram nobis claims are not easily
       resolved on the face of the petition and often require a hearing.

Harris v. State, 102 S.W.3d 587, 592-93 (Tenn. 2003). The governing statute for coram
nobis relief is Tennessee Code Annotated section 40-26-105, which provides, in pertinent
part:

       The relief obtainable by this proceeding shall be confined to errors dehors the
       record and to matters that were not or could not have been litigated on the trial
       of the case, on a motion for new trial, on appeal in the nature of a writ of error,
       on writ of error, or in a habeas corpus proceeding. Upon a showing by the
       defendant that the defendant was without fault in failing to present certain
       evidence at the proper time, a writ of error coram nobis will lie for
       subsequently or newly discovered evidence relating to matters which were
       litigated at the trial if the judge determines that such evidence may have
       resulted in a different judgment, had it been presented at the trial.

T. C. A. § 40-26-105(b), (c) (2011). A guilty plea is considered a trial for purposes of the
coram nobis statute. See Wlodarz v. State, 361 S.W.3d 490, 504 (Tenn. 2012). Relief may
be available if the newly discovered evidence calls into question the knowing and voluntary
nature of the guilty plea. Id. at 501 (citing Newsome v. State, 995 S.W.2d 129, 134 (Tenn.
Crim. App. 1998)). A petition for writ of error coram nobis must contain the following: “(1)
the grounds and the nature of the newly discovered evidence; (2) why the admissibility of the

                                               -7-
newly discovered evidence may have resulted in a different judgment had the evidence been
admitted at the previous trial; (3) the petitioner was without fault in failing to present the
newly discovered evidence at the appropriate time; and (4) the relief sought by the
petitioner.” Freshwater v. State, 160 S.W.3d 548, 553 (Tenn. Crim. App. 2004) (citing State
v. Hart, 911 S.W.2d 371, 374-75 (Tenn. Crim. App.1995)). We note that “[t]he decision to
grant or deny a petition for the writ of error coram nobis on the ground of subsequently or
newly discovered evidence rests within the sound discretion of the trial court.” Hart, 911
S.W.2d at 375 (citations omitted).

        The statute of limitations for a petition for writ of error coram nobis is one year from
the date the judgment becomes final in the trial court. T. C. A. § 27-7-103 (Supp. 2009);
Mixon, 983 S.W.2d at 671. For the purposes of a petition for writ of error coram nobis, a
judgment becomes final thirty days after the entry of the trial court’s judgment if no post-trial
motions are filed or upon entry of an order disposing of a timely post-trial motion. Mixon,
983 S.W.2d at 670 (citing Tenn. R. App. P. 4(c); State v. Pendergrass, 937 S.W.2d 834, 837
(Tenn. 1996)). Due process considerations may toll the one-year statute of limitations when
a petitioner seeks a writ of error coram nobis. Harris v. State, 301 S.W.3d 141, 145 (Tenn.
2010). “[B]efore a state may terminate a claim for failure to comply with procedural
requirements such as statutes of limitations, due process requires that potential litigants be
provided an opportunity for the presentation of claims at a meaningful time and in a
meaningful manner.” Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992). To determine
if due process requires the tolling of the statute of limitations the court should consider: (1)
when the limitations period would normally have begun to run; (2) whether the grounds for
relief arose after the limitations period normally would have commenced; and (3) if the
grounds are later-arising, would a strict application of the limitations period deny the
petitioner a reasonable opportunity to present the claim. State v. Sands, 903 S.W.2d 297, 301
(Tenn. 1995).

       In its order denying relief, the post-conviction court determined that the Public
Defender’s Office withdrew from representing the Petitioner in the Ray Crawford case and
case numbers 193694-70, on January 14, 1993, prior to the indictments in the Donald Sirhan
and Sandy Sirhan cases on March 31, 1993.4 The court noted that Paul Bergman was
appointed to represent the Petitioner in the Ray Crawford case on February 1, 1993, and later
appointed to represent the Petitioner in the Sirhan cases on April 1, 1993. The court further
found that Paul Bergman was not an assistant public defender. In so finding, the court relied
on an attorney fee claim for services rendered on the Petitioner’s case filed by Mr. Bergman
on March 17, 1993, which was later approved by the court. The court reasoned that the

        4
          Evidently, the post-conviction court reviewed the technical record or what is commonly referred
to as “the jacket” from the original cases. This information is not included in the record on appeal.

                                                  -8-
Petitioner was not entitled to error coram nobis relief because the petition did not “allege the
discovery of new, admissible-at-trial evidence of actual innocence, only the existence of new
irrelevant-at-trial-and-therefore-inadmissible-at-trial evidence of an actual conflict of interest
on counsel’s part.” It summarily dismissed the petition for post-conviction relief because it
was untimely and no exception existed to re-open the petition.

       As in his prior appeal of the denial of a motion to re-open his petition for post-
conviction relief, the Petitioner has failed to seek permission from this court in order to
appeal. On this ground alone, this court may dismiss his appeal. Nevertheless, we agree with
the post-conviction court and conclude that his petition for post-conviction relief is neither
timely nor satisfies any of the exceptions under Tennessee Code Annotated section 40-30-
117(a). Accordingly, summary dismissal of the Petitioner’s third motion to reopen his post-
conviction petition was proper.

        Alternatively, the Petitioner claims that he is entitled to error coram nobis relief
because his counsel was a member of the Public Defender’s Office, which was
simultaneously representing other inmates who were potential State’s witnesses at the time
of his guilty plea. As in his petition to reopen post-conviction proceedings, his motion for
error coram nobis relief is also untimely. It should have been filed nearly 19 years ago.
Moreover, the record does not show that the “actual conflict of interest” alleged by the
Petitioner constitutes newly discovered evidence that may have resulted in a different
judgment or that the Petitioner was not at fault for not presenting it sooner. The Public
Defender’s Office withdrew from representing the Petitioner on the Crawford murder and
other pending cases three months before the Petitioner was indicted for the murder and
attempted murder of the Sirhans and a year before he pleaded guilty in all cases. The
Petitioner was well aware of the withdrawal and the later appointment by the court of Mr.
Bergman. Even if the Petitioner was unaware of the reason for the Public Defender’s
Office’s withdrawal, and we assume that the alleged “actual conflict of interest” was later
arising based on the 2004 Hank Hill letter, the Petitioner fails to explain why he did not
present this issue until 10 years later. The Petitioner did in fact file a petition for habeas
relief on similar grounds in 2004. However, this court instructed the Petitioner that the
“authorized avenue for attacking a voidable judgment is a petition for post-conviction relief,”
see Dexter Johnson v. State, 2004 WL 1945744, at *2, and we recognized that the Petitioner
had previously exercised his right to seek post-conviction relief. In any event, the post-
conviction court noted its belief that the notation of Paul Bergman as a member of the Public
Defender’s Office on the guilty plea transcript was a clerical error. Based on Mr. Bergman’s
fee claim for the work performed on the Petitioner’s case as well as the judgments of




                                               -9-
conviction designating Mr. Bergman as court-appointed counsel, we agree.5 We are unable
to conclude that a strict application of the statute of limitation would result in a denial of due
process. Accordingly, the Petitioner is not entitled to relief.

                                          CONCLUSION

     Based on the foregoing authority and analysis, we affirm the post-conviction court’s
summary dismissal of the Petitioner’s motion.




                                                        ___________________________________
                                                        CAMILLE R. McMULLEN, JUDGE




       5
         Rule 13 of the Supreme Court Rules generally provides that appointed counsel, other than public
defenders, shall be entitled to reasonable compensation for services rendered.


                                                 -10-
