        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               September 21, 2010 Session

               ANDRE L. MAYFIELD v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Davidson County
                            No. 93-B-687 Seth Norman, Judge



                No. M2009-02640-CCA-R3-CO - Filed November 12, 2010


Petitioner, Andre L. Mayfield, filed a petition for writ of error coram nobis, challenging his
convictions for aggravated robbery, aggravated rape, rape, and two counts of aggravated
kidnapping based on newly discovered evidence. The coram nobis court summarily
dismissed the petition without a hearing. Petitioner appeals. We determine that the coram
nobis court properly dismissed the petition after finding that the “newly discovered” evidence
relied upon by Petitioner would have provided “insignificant assistance to the defense of the
charges” had it been presented at trial. Accordingly, the judgment of the coram nobis court
dismissing the petition is affirmed.

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

J ERRY L. S MITH , J., delivered the opinion of the court, in which D AVID H. W ELLES and
R OBERT W. W EDEMEYER, JJ., joined.

Ronald C. Small, Nashville, Tennessee, for the appellant, Andre L. Mayfield.

Robert E. Cooper, Jr., Attorney General and Reporter; Mark A. Fulks, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                         OPINION

                                    Factual Background

       This case presents a rather protracted procedural history, starting in 1993, when
Petitioner pled guilty to three counts of aggravated rape and one count of aggravated robbery.
Petitioner was sentenced to twenty years for each rape conviction and ten years for the
aggravated robbery conviction. The sentences were ordered to be served concurrently.
Subsequently, the Department of Correction determined that Petitioner was a multiple rapist
and should have been sentenced as such, rather than as a Range I, standard offender.
Petitioner was permitted to withdraw his guilty pleas. In 1999, Petitioner was tried and
convicted of two counts of aggravated kidnapping, as well as one count of aggravated rape,
one count of aggravated robbery, and one count of rape. He received an effective sentence
of fifty years. See State v. Andre L. Mayfield, No. M1999-02415-CCA-R3-CD, 2001 WL
637700, at *1, (Tenn. Crim. App., at Nashville, June 11, 2001), perm. app. denied, (Tenn.
Oct. 29, 2001).

       In January of 2004, Petitioner sought habeas corpus relief, alleging that his
convictions were void and obtained in violation of the double jeopardy clause and due
process. Additionally, Petitioner argued that he received ineffective assistance of counsel
and was denied the right to testify. See Andre Lamont Mayfield v. State, No. M2004-01408-
CCA-R3-HC, 2005 WL 1683498, at *1 (Tenn. Crim. App., at Nashville, Jul. 18, 2005),
perm. app. denied, (Tenn. Feb. 6, 2006). On appeal this Court affirmed the denial of habeas
corpus relief. Id. at *3.

        In July of 2004, Petitioner again sought habeas corpus relief, this time arguing, among
other things that his sentences were void and in direct contravention of state statutes. See
Andre L. Mayfield v. Howard Carlton, No. E2005-00138-CCA-R3-HC, 2005 WL 1798636,
at *1 (Tenn. Crim. App., at Knoxville, Jul. 29, 2005), perm. app. denied, (Tenn. Dec. 19,
2005). This opinion references a third petition for habeas corpus relief that appeared in the
technical record. Id. at *1 n.1. Again, this Court affirmed the denial of habeas corpus relief.
Id. at *6.

        Petitioner then sought relief via a petition for post-conviction relief. In December of
2000 and October of 2002, Petitioner filed petitions for post-conviction relief. See André
Lamont Mayfield v. State, No. M2005-00757-CCA-R3-PC, 2006 WL 2380615, at *2 (Tenn.
Crim. App., at Nashville, Aug. 16, 2006). Petitioner argued that the trial court did not have
authority to set aside his guilty pleas, that he received ineffective assistance of counsel, that
his convictions were void, that his sentencing as a multiple rapist violated due process, and
that he had been denied the right to testify at trial. Id. This Court determined that several of
the arguments advanced by Petitioner had previously been resolved on appeal, including
Petitioner’s argument that the trial court was without authority to set aside the guilty pleas
and Petitioner’s argument that his sentence violated due process. Id. at *6-8. This Court
affirmed the denial of post-conviction relief by concluding that the “post-conviction court
provided a fair hearing to the petitioner and thoroughly considered his claims.” Id. at *9.




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        Petitioner filed a fourth petition for habeas corpus relief. This time, Petitioner alleged
his convictions were void because they violated Tennessee Code Annotated section 40-20-
111(b) and Rule 32(c)(3)(C) of the Tennessee Rules of Criminal Procedure. See Andre L.
Mayfield v. Howard Carlton, No. M2006-00885-CCA-R3-HC, 2006 WL 3290818, at *1
(Tenn. Crim. App., at Nashville, Nov. 13, 2006). This Court determined that Petitioner was
not entitled to habeas corpus relief because the sentences about which he was complaining
had already expired and because Petitioner had “already challenged the legality of his
restraint . . . [and] is not entitled to a second adjudication of the same habeas corpus claim.”
Id. at *2 (citing T.C.A. § 29-21-107(b) and Hickman v. State, 153 S.W.3d 16, 20-21 (Tenn.
2004)).

         Petitioner again sought habeas corpus relief in 2005. Andre L. Mayfield v. State, No.
E2005-02154-CCA-R3-HC, 2006 WL 3313637, at *1 (Tenn. Crim. App., at Knoxville, Nov.
15, 2006). “The gist of the petitioner’s claim [was] that his 1999 judgments [were] void
because the judgment forms for counts 2 through 5 do not reflect that the trial court awarded
. . . any pretrial jail credits . . . .” Id. This Court concluded that there was nothing in the
record to support Petitioner’s claim and affirmed the judgment of the trial court dismissing
the petition. Id. at *2.

        Sometime thereafter, Petitioner filed an action under 28 U.S.C. § 2254, seeking
habeas corpus relief in federal court, to set aside his convictions for aggravated rape,
aggravated kidnapping, and aggravated robbery. As part of his petition, Petitioner argued
that the State violated Brady v. Maryland, 373 U.S. 83 (1963), by the prosecutor’s failure to
disclose an allegedly exculpatory statement made by one of the rape victims. This claim was
based on the discovery of a Metropolitan Police Department field report on the rape of
Roesheka Alexander. The report contained a check-list of various categories by which a
person could be described. Petitioner argued that the report constituted exculpatory evidence
with which Petitioner could have challenged the trial court’s refusal to sever the offenses as
well as used to impeach the testimony of the victim. The federal court ordered Petitioner to
file an appropriate state action, as the state claims had not been exhausted with respect to this
issue. The federal district court entered its order on August 26, 2009.

        On October 14, 2009, Petitioner filed the petition for writ of error coram nobis that
is the subject of the appeal herein. In the petition for writ of error coram nobis, Petitioner
claimed that “new evidence that the State withheld from defense counsel” showed that
“contrary to rape victim Rosheka Alexander’s trial testimony, her assailant wore a partial
cloth mask” and had a “scar on his mouth” and talked with a “stutter.” Petitioner alleged that
in 2007, his counsel found a copy of a police report from an interview with the victim that
contained a checklist of descriptors the victim gave for the assailant. Petitioner
acknowledged that the petition for writ of error coram nobis was untimely but argued that

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due process called for a tolling of the statute of limitations because the interests of Petitioner
outweighed the interests of the State. Petitioner argued that the report was both exculpatory
and material in that a reasonable probability exists that, had the evidence been disclosed, the
result of the trial would have been different. As a result, Petitioner sought a new trial.

      In an order filed December 10, 2009, the coram nobis court dismissed the petition.
The court determined that:

       Despite the fact that some of the details listed in the field description report
       may not mirror the testimony of Ms. Alexander, the proof against the
       Petitioner in this case was overwhelming. Ms. Alexander provided the police
       with sufficient descriptive information to assist in the preparation of a
       composite sketch of her attacker and identified the Petitioner at both physical
       and photographic line-ups. In the vacant house where the incident occurred,
       fingerprints matching those of the Petitioner were found on the window sill
       where Ms. Alexander said the attacker exited. Prior to leaving, the assailant
       gave Ms. Alexander a piece of paper on which he had written his name and
       phone number. Furthermore, the man introduced himself as “Dray” to Ms.
       Alexander before kidnapping and raping her.

               ....

       In the opinion of the Court, the newly discovered information submitted by the
       Petitioner would have provided insignificant assistance in defense of the
       charges had it been presented at trial. The amount and quality of inculpatory
       evidence substantially outweighed any potentially exculpatory evidence at
       trial. It is no question that a jury would return the same if not worse, verdict
       if the matter were tried today and the Petitioner were permitted to introduce the
       information he recently discovered.

       Petitioner filed a timely notice of appeal. On appeal, he argues that: (1) the coram
nobis statute provides a remedy for the claim of withheld evidence where the police report
is exculpatory and material; and (2) he is entitled to relief because there is a reasonable
probability that the withheld evidence “may have resulted in a different judgment.”




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                                            Analysis

                                          Timeliness

        A petition for writ of error coram nobis must usually be filed within one year after the
judgment becomes final. See T.C.A. § 27-7-103; State v. Mixon, 983 S.W.2d 661, 670
(Tenn. 1999); Freshwater v. State, 160 S.W.3d 548, 553 (Tenn. Crim. App. 2004). It has
been determined that a judgment becomes final, for purposes of coram nobis relief, thirty
days after the entry of the judgment in the trial court if no post-trial motion is filed, or upon
entry of an order disposing of a timely filed post-trial motion. Mixon, 983 S.W.2d at 670.
It has been explained that:

       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. The coram
       nobis statute also does not contain provisions for summary disposition or
       expedited appeals . . . . Although coram nobis claims also are governed by a
       one-year statute of limitations, the State bears the burden of raising the bar of
       the statute of limitations as an affirmative defense. See Sands v. State, 903
       S.W.2d 297, 299 (Tenn. 1995).

Harris v. State, 102 S.W.3d 587, 592-93 (Tenn. 2003).

        At the outset, we note that in the case herein, Petitioner acknowledged in his petition
for coram nobis relief that the petition “must be filed within one year of the judgment
becoming final in the trial court” and that this occurred “sometime in 2000.” Petitioner did
not file his petition until October of 2009. However, Petitioner urged trial court to deem the
statute of limitations tolled because of the nature of Petitioner’s claim.

        Upon our review of the pleadings, we conclude that the record does not show that the
State raised the statute of limitations as a bar to coram nobis relief in the trial court. The
State, in its brief on appeal, argues that it “was not afforded an opportunity to assert the
affirmative defense [of statute of limitations] in the trial court because the petition was
dismissed sua sponte by the trial court without a motion from the state and without a
hearing.” Thus, the State argues that the affirmative defense “should not be deemed waived”

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as it is “being raised at the first practicable moment.” To the contrary, the record reveals that
the State had 57 days between service of the petition for writ of error coram nobis and the
filing of the order dismissing the petition for relief in the trial court and, for whatever reason,
did not raise the statute of limitations as a bar to the writ. Further, the trial court, in denying
the petition at issue herein, did not determine whether the principles of due process overrode
the statute of limitations. See Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001) (stating
that the principles of due process may preclude the use of the statute of limitations to bar a
coram nobis claim). Instead, the trial court determined that the newly discovered evidence
would not have resulted in a different judgment. In other words, the trial court determined
that Petitioner was not entitled to coram nobis relief. The State’s failure to raise the statute
of limitations in the trial court and the trial court’s failure to address the timeliness of the
petition in its final order dismissing the petition direct our review of the issues on appeal.
Accordingly, we will consider the merits of Petitioner’s issues on appeal. See e.g. Phedrek
T. Davis v. State, No. M2009-02310-CCA-R3-CO, 2010 WL 3270015, at *2 (Tenn. Crim.
App., at Nashville, Aug. 19, 2010) (deeming statute of limitations defense waived for failure
to raise it in the trial court and not addressing timeliness of petition on appeal); Calvin O.
Tankesly v. State, No. M2004-01440-CCA-R3-CO, 2005 WL 2008203, at *6 (Tenn. Crim.
App., at Nashville, Aug. 19, 2005), perm. app. denied, (Tenn. Feb. 6, 2006) (determining that
State waived statute of limitations defense for failing to prosecute).

                                      Coram Nobis Relief

         Petitioner argues on appeal that he is entitled to coram nobis relief because the State
withheld evidence that was both exculpatory and material that may have resulted in a
different judgment had the evidence been available to Petitioner at trial. The State, on the
other hand, argues that Petitioner’s claim under Brady v. Maryland, is not congnizable in a
coram nobis proceeding and, in any event, the police report would not have been admissible
at trial. Therefore, according to the State, the trial court did not abuse its discretion.

      Relief by petition for writ of error coram nobis is provided for in Tennessee Code
Annotated section 40-26-105. That statute 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 a 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

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       resulted in a different judgment, had it been presented at the trial. The issue
       shall be tried by the court without the intervention of a jury, and if the decision
       be in favor of the petitioner, the judgment complained of shall be set aside and
       the defendant shall be granted a new trial in that cause.

T.C.A. § 40-26-105. The writ of error coram nobis is an “extraordinary procedural remedy,”
filling only a “slight gap into which few cases fall.” Mixon, 983 S.W.2d at 672. The
“purpose of this remedy ‘is to bring to the attention of the court some fact unknown to the
court which if known would have resulted in a different judgment.’” State v. Hart, 911
S.W.2d 371, 374 (Tenn. Crim. App. 1995) (quoting State ex rel. Carlson v. State, 407
S.W.2d 165, 167 (Tenn. 1996)). The decision to grant or deny a petition for writ of error
coram nobis rests within the sound discretion of the trial court. Teague v. State, 772 S.W.2d
915, 921 (Tenn. Crim. App. 1988), overruled on other grounds by Mixon, 983 S.W.2d at 671
n.3.

         A petition for writ of error coram nobis must relate: (1) the grounds and the nature of
the newly discovered evidence; (2) why the admissibility of the 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, 160 S.W.3d
at 553; Hart, 911 S.W.2d at 374-75. To be successful on a petition for a writ of error coram
nobis, “the standard to be applied is whether the new evidence, if presented to the jury, may
have resulted in a different outcome . . . .” State v. Vasquez, 221 S.W.3d 514, 526 (Tenn.
2007).

       Initially, we must address the State’s argument that Petitioner’s allegations of
violations of Brady v. Maryland are not appropriately addressed in a coram nobis proceeding.
Specifically, citing Hershell Kinnaird v. State, No. M2000-00037-CCA-R3-PC, 2001 WL
881371, at *5 (Tenn. Crim. App., at Nashville, Aug. 7, 2001) (“Kinnaird II”); Jeffrey Scott
Miles v. State, No. 03C01-9903-CR-00103, 2000 WL 2647, at *2 (Tenn. Crim. App., at
Knoxville, Aug. 7, 2001); State v. Eric Pendleton, No. M2003-01762-CCA-R3-CD, 2004
WL 1144040, at *2 (Tenn. Crim. App., at Nashville, May 20, 2004), perm. app. denied,
(Tenn. Nov. 8, 2004), reh’g denied, (Tenn. Dec. 20, 2004); Gregory Hedges v. State, No.
E2002-02610-CCA-R3-PC, 2003 WL 22426831 (Tenn. Crim. App., at Knoxville, Oct. 24,
2003); and State v. Hershell Kinnaird, No. 01C01-9404-CC-00149, 1995 WL 382612 (Tenn.
Crim. App., at Nashville, Jun. 28, 1995), perm. app. denied, (Tenn. Feb. 5, 1996), the State
argues that “Brady claims[ ] are not cognizable in a coram nobis proceeding.” The State
acknowledges this Court’s opinions in Freshwater v. State, 160 S.W.3d 548 (Tenn. Crim.
App. 2004); Arthur L. Armstrong v. State, No. M2005-01325-CCA-R3-CD, 2006 WL
1626726 (Tenn. Crim. App., at Nashville, Jun. 8, 2006); and Antonio Bonds v. State, No.

                                               -7-
W2006-00343-CCA-R3-C), 2006 WL 3516225, at *4 (Tenn. Crim. App, at Jackson, Dec.
6, 2006), perm. app. denied, (Tenn. Apr. 16, 2007), are contrary to the State’s argument.

      Obviously, this is not a novel issue before this Court. In Freshwater v. State, 160
S.W.3d 548 (Tenn. Crim. App. 2004), the State raised the identical issue in the context of a
coram nobis claim. In response to the argument that alleged Brady violations are not
appropriate for coram nobis relief, this Court discussed the Kinnaird II case in depth, stating:

              We agree that this Court determined in Kinnaird’s case that “coram
       nobis is not a forum for the determination of a constitutional issue.” However,
       according to the statute, coram nobis relief is appropriate for “matters that
       were not or could not have been litigated on the trial of the case, on a motion
       for a new trial, on appeal in the nature of a writ of error, on a writ of error, or
       in a habeas corpus proceeding.” Tenn. Code Ann. § 40-26-105; Kinnaird,
       2001 WL 881371, at *5. In Kinnaird, the defendant had raised the issue of the
       withheld evidence in both a motion for new trial and a corum nobis proceeding
       and the trial court had made “specific findings with respect to the . . .
       [exculpatory evidence] and ruled that the State’s withholding of the statement
       did not justify a new trial under Brady.” 2001 WL 881371, at *5. Moreover,
       we also note that Kinnaird was decided several months after the supreme
       court’s decision in Workman, yet the Kinnaird opinion does not reference or
       cite Workman even though Workman dealt with a similar issue - a coram nobis
       proceeding predicated on evidence that was unavailable at the time of the
       defendant’s trial due to alleged suppression by the State. See Kinnaird, 2001
       WL 881371, at *1-*4. We feel this seriously calls into question the Kinnaird’s
       panel reliance on the earlier Kinnaird decision that determined Brady
       violations are not appropriate for coram nobis relief. See Kinnaird, 2001 WL
       881371, at *6 (relying on Kinnaird, 1995 WL 382612, at *4, to conclude that
       allegations of Brady violations are not appropriate in a coram nobis
       proceeding).

160 S.W.3d at 555.

       Contrary to the State’s argument, Freshwater, as a reported opinion by this Court, is
controlling authority. Thus, we will utilize the same analysis set forth therein to review
Petitioner’s claim for relief. In the case herein, Petitioner’s allegations of the newly
discovered evidence in the context of violations of Brady v. Maryland, were not, and could
not have been, litigated previously. Despite Petitioner’s discovery request prior to trial, the
existence of the allegedly exculpatory police report was not discovered until early 2007 when
current counsel for Petitioner obtained a copy of the original District Attorney file and found

                                               -8-
the report. Further, the holdings of this Court in Freshwater and Workman, again, both
reported cases from this Court, discuss coram nobis relief in the context of suppressed
exculpatory evidence that also might amount to new evidence of innocence.

        Despite Petitioner’s argument being deemed a proper ground for coram nobis relief,
we affirm the trial court’s dismissal of the petition. Petitioner has failed to show, as required,
that that the newly discovered evidence “may have resulted in a different judgment had the
evidence been admitted at the previous trial.” Hart, 911 S.W.2d at 374-75. Again, the
evidence of Petitioner’s guilt was overwhelming. With respect to the rape of Rosheka
Alexander, the evidence at trial indicated that Ms. Alexander “twice identified [Petitioner]
before trial, at a photographic line-up and at a physical line-up, and [the State] introduced as
an exhibit a composite drawing of Alexander’s attacker. In addition, fingerprints found in
the house where Alexander testified that the rape occurred were compared with [Petitioner’s]
fingerprints, and . . . the prints matched.” Andre L. Mayfield, 2001 WL 637700, at *9.
Further, as noted by the trial court in the order dismissing the writ, “prior to leaving [the
scene of the rape], the assailant gave Ms. Alexander a piece of paper on which he had written
his name and phone number. Furthermore, the man introduced himself as “Dray” . . . before
kidnapping and raping her.” We are unable to conclude that, had Petitioner been privy to the
police report prior to trial, the evidence may have resulted in a different judgment. Petitioner
is not entitled to relief. The judgment of the trial court is affirmed.

                                          Conclusion

       For the foregoing reasons, the judgment of the trial court is affirmed.




                                             ___________________________________
                                             JERRY L. SMITH, JUDGE




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