                                                                                        08/21/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs February 12, 2019

               STATE OF TENNESSEE v. DAVID B. GARDNER

                Appeal from the Circuit Court for Robertson County
                        No. 9790    Jill Bartee Ayers, Judge
                     ___________________________________

                           No. M2018-00289-CCA-R3-CD
                       ___________________________________


Petitioner, David B. Gardner, appeals the denial of his petition for a writ of error coram
nobis based upon newly discovered evidence. After thoroughly reviewing the record and
applicable authorities, we affirm the judgment of the error coram nobis court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and TIMOTHY L. EASTER, JJ., joined.

Benjamin K. Dean, Springfield, Tennessee, for the appellant, David B. Gardner.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; John Wesley Carney, Jr., District Attorney General; and John E.
Finklea, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION


Procedural History

       Petitioner was convicted on October 11, 1995, of burglary and theft of property
less than $500 in value. The trial court imposed an effective sentence of twelve years to
be served in the Department of Correction. The judgments were signed on December 8,
1995, and filed in January 1996, along with an amended judgment for burglary reflecting
Defendant’s offender classification being changed from Range I standard offender to
Career Offender. No amended judgment for the theft conviction is in the record.

      On October 10, 2017, Petitioner filed an untimely petition for writ of error coram
nobis claiming he recently discovered that the prosecutor at his trial had a conflict of
interest, which constituted newly discovered evidence. According to the petition, the
prosecutor was Petitioner’s defense attorney on a case in 1980 when he pled guilty to
forgery and receipt of stolen property. Petitioner asserted that the prosecutor was
engaged to the victim in the 1980 case at the time of the guilty plea and later married her.
Petitioner claimed that the prosecutor “intentionally conspired with the Court to alter
Petitioner’s judgments [sic], whereas the judgments [sic] were changed from 30% to 60%
to effectively give Petitioner more time in the T.D.O.C.” Petitioner further claimed that
since the prosecutor’s marriage to the victim, the prosecutor “has sought revenge upon
the Petitioner by keeping him illegally incarcerated.” Petitioner alleged that he was
without fault for failing to present the newly discovered evidence at the proper time
because the State and the prosecutor “concealed the evidence from Petitioner and all
other attorneys for Petitioner. Thus due process and equitable tolling should toll any
applicable statute of limitations or procedural bars.” Petitioner argued that the newly
discovered evidence “would have resulted in a different judgment because Petitioner
would have never been charged had it not been for the malicious prosecution.”

       The coram nobis court dismissed the petition for writ of error coram nobis finding
that the petition did not state a colorable claim. The court also found that the writ “does
not present any new evidence that would have resulted in a different judgment.”
Concerning the judgment form for Petitioner’s burglary conviction, the coram nobis court
noted that the “documentation at the sentencing was that [Petitioner] was a career
offender and it just got marked wrong the first time around and so then, it was corrected.”

Analysis

        On appeal, Petitioner argues that he is entitled to error coram nobis relief based on
newly discovered evidence. Petitioner asserts a conflict of interest by the prosecutor and
that such evidence would have resulted in a different judgment had it been presented at
trial. Petitioner further argues that the coram nobis court erred by summarily dismissing
his petition for writ of error coram nobis without an evidentiary hearing. He argues in his
brief that,

        It should be noted, that due to the trial court not allowing any substantive
        hearing or testimony on the [Petitioner’s] writ hearing, that no proof
        regarding the specific details of the conflict of interest and alleged
        conspiracy by [the prosecutor] were developed for the appellate record.
        Without these facts and evidence, this Court cannot make a complete
        determination of the facts surrounding these circumstances, to include
        facts as to whether the [Petitioner’s] Motion is timely or otherwise tolled
        due to due process issues (none of which are before the Court due to the
        scant record permitted to be developed by the Trial Court).



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        Thus, the primary issue presented in this case is – whether the alleged
        conflicts of interest of the prosecutor (inter alia an alleged
        conspiracy/bias/motive against the [Petitioner] by [the prosecutor] based
        on the prior case involving his wife as a victim) are sufficient to support
        the [Petitioner’s] petition for writ of error coram nobis and sufficient to
        warrant the Court allowing and permitting the [Petitioner] to present
        testimony regarding the newly discovered evidence at an evidentiary
        hearing, and also with the assistance of counsel, which was deprived by
        the Trial Court.

The State responds that the error coram nobis court properly dismissed the petition for
writ of error coram nobis as it was filed nearly 21 years after the expiration of the statute
of limitations, Petitioner’s “‘newly discovered evidence’ was discoverable at the time of
trial, and he failed to show that the ‘new evidence’ might have affected the result at trial.”
Petitioner clearly acknowledged the statute of limitations issue in his petition and in his
brief on appeal.

        A writ of error coram nobis is a very limited remedy which allows a petitioner the
opportunity to present newly discovered evidence “which may have resulted in a different
verdict if heard by the jury at trial.” Workman v. State, 41 S.W.3d 100, 103 (Tenn.
2001); see also State v. Mixon, 983 S.W.2d 661 (Tenn. 1999). The remedy is limited “to
matters that were not and could not be 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
proceeding.” T.C.A. § 40-26-105. Examples of newly discovered evidence include a
victim’s recanted testimony or physical evidence which casts doubts on the guilt of the
Petitioner. Workman, 41 S.W.3d at 101; State v. Ratliff, 71 S.W.3d 291 (Tenn. Crim.
App. 2001); State v. Hart, 911 S.W.2d 371 (Tenn. Crim. App. 1995). The supreme court
has stated the following concerning the standard to be applied when a trial court reviews
a petition for writ of error coram nobis:

        [T]he trial judge must first consider the newly discovered evidence and
        be “reasonably well satisfied” with its veracity. If the defendant is
        “without fault” in the sense that the exercise of reasonable diligence
        would not have led to a timely discovery of the new information, the trial
        judge must then consider both the evidence at trial and that offered at the
        coram nobis proceeding in order to determine whether the new evidence
        may have led to a different result.

State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007). Whether to grant or deny a petition
for writ of error coram nobis rests within the sound discretion of the trial court. Id. at
527-28. Summary dismissal, without discovery or an evidentiary hearing, is permissible
when a petition for writ of error coram nobis is insufficient on its face. Nunley v. State,
552 S.W.3d 800, 826 (Tenn. 2018).

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       A petition for writ of error coram nobis must be dismissed as untimely filed unless
filed within one (1) year of the date on which the petitioner’s judgment of conviction
became final in the trial court. Mixon, 983 S.W.2d at 670. The only exception to this is
when due process requires a tolling of the statute of limitations. Workman, 41 S.W.3d at
103. Petitioner does not dispute that his petition for writ of error coram nobis was not
timely filed. In this case, Petitioner was convicted by a jury October 11, 1995. The
judgment forms were entered on December 8, 1995. Petitioner’s petition for writ of error
coram nobis was not filed until October 10, 2017, well outside of the limitations period.

        Furthermore, we find that the error coram nobis court properly dismissed the
petition for writ of error coram nobis on its face without an evidentiary hearing.
Petitioner has not alleged any grounds that would require a tolling of the statute of
limitations. Petitioner contends that the prosecutor’s alleged conflict of interest at the
time of trial constitutes newly discovered evidence that would toll the statute of
limitations and that he did not know of the conflict because the State and the prosecutor
concealed it from him and his attorneys. However, this does not warrant tolling of the
statute of limitations. This court has held in a case where a petitioner sought relief based
upon his trial counsel’s alleged conflict of interest,

         In any event, coram nobis relief is limited to matters involving
         ‘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). Evidence of a conflict of interest[]
         does not qualify as newly discovered evidence as contemplated by
         our statutes. Trial counsel’s previous representation had no impact on
         the outcome of the Petitioner’s trial because it had no relevance to
         whether the Petitioner shot and killed the victim. As a result, the
         Petitioner is not entitled to relief of this basis.

Dennis Cedric Woodard v. State, No. M2015-02002-CCA-R3-ECN, 2016 WL 6599604,
at *17 (Tenn. Crim. App., Nov. 8, 2016)(Emphasis added). Petitioner asserts that the
prosecutor in Petitioner’s trial which resulted in the challenged convictions represented
Petitioner fifteen years earlier in a case wherein the prosecutor’s current wife was the
victim. She was not the wife of the prosecutor at the time of the earlier convictions.
Petitioner alleges the prosecutor “conspired with the Court” to alter his judgment to seek
“revenge upon the Petitioner by keeping him illegally incarcerated.”

       Because the petition for writ of error coram nobis was untimely and tolling of the
statute of limitations is not required, the error coram nobis court properly dismissed the
petition without an evidentiary hearing. The record conclusively shows that the

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prosecutor’s marital status had no relevance as to whether Petitioner was guilty of the
1995 cases for which he was convicted after a jury trial. Petitioner was sentenced as a
career offender but due to a clerical error, the original judgment reflected a sentence for
burglary as a standard offender. An amended judgment was properly entered showing
service of the twelve-year sentence as a career offender.

                                    CONCLUSION

        Accordingly, the judgment of the error coram nobis court is affirmed.


                                  ____________________________________________
                                  THOMAS T. WOODALL, JUDGE




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