        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                 October 19, 2010 Session

            CYRUS DEVILLE WILSON v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                        No. 93-A-176    Seth Norman, Judge




                  No. M2009-02241-CCA-R3-CO - Filed April 6, 2011




D AVID H. W ELLES, J., dissenting.

        I dissent from the majority opinion because I conclude that the allegations contained
in the Petitioner’s petition for a writ of error coram nobis are insufficient to demonstrate that
he is entitled to relief. As such, I do not think that the coram nobis court erred when it
summarily dismissed the petition without an evidentiary hearing.

      The requirements for a writ of error coram nobis are codified in Tennessee Code
Annotated section 40-26-105(b), which states in pertinent part as follows:

       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.

Filing a petition for a writ of error coram nobis, however, does not automatically grant the
Petitioner an evidentiary hearing on the matter. See Teague v. State, 772 S.W.2d 915, 922
(Tenn. Crim. App. 1988) (concluding that the coram nobis court did not err when it failed
to hold an evidentiary hearing and noting that “the petitioner failed to establish that he was
entitled to an evidentiary hearing regarding this issue”); Cole v. State, 589 S.W.2d 941, 943
(Tenn. Crim. App. 1979) (finding that the coram nobis court did not err when it failed to hold
an evidentiary hearing regarding a post-trial statement from the victim because the statement
was not “newly discovered evidence”).
       Petitions for a writ of error coram nobis must contain more than vague assertions of
what the Petitioner hopes to prove at an evidentiary hearing, but rather details of specific
admissible evidence that demonstrate he is entitled to relief on the grounds of subsequently
or newly discovered evidence. See Harris v. State, 301 S.W.3d 141, 150 (Tenn. 2010)
(Koch, J., concurring) (“Judges anticipate that the petition itself embodies the best case the
petitioner has for relief from the challenged judgment. Thus, the fate of the petitioner’s case
rests on the ability of the petition to demonstrate that the petitioner is entitled to the
extraordinary relief that the writ provides.”) (citations omitted). Hearings should only be
granted for petitions that

      recite: (a) the grounds and the nature of the newly discovered evidence, (b) why
      the admissibility of the newly discovered evidence may have resulted in a
      different judgment if the evidence had been admitted at the previous trial, (c)
      the petitioner “was without fault in failing to present” the newly discovered
      evidence at the appropriate time, and (d) the relief sought by the petitioner.

Teague, 772 S.W.2d at 921 (citations omitted). Moreover, this Court has provided the
following guidance:

       Affidavits should be filed in support of the petition either as exhibits or
       attachments to the petition or at some point in time prior to the hearing. An
       affidavit, like the testimony of a witness, must be relevant, material and
       germane to the grounds raised in the petition; and the affiant must have
       personal knowledge of the statements contained in the affidavit. Affidavits
       which fail to meet this criteria will not justify the granting of an evidentiary
       hearing since the information contained in the affidavits, taken as true, would
       not entitle the petitioner to relief.
Id.

       In the instant case, the Petitioner presents only what he alleges is a copy of the
Assistant District Attorney’s notes, which state, “Good case but for most of Ws are juveniles
who have already lied repeatedly.” As the prosecutor’s notes do not constitute evidence that
would have been admissible during his trial, I believe that the Petitioner has failed to allege
grounds that entitle him to relief. Granting the Petitioner an evidentiary hearing based on the
petition filed herein allows the Petitioner to go on a fishing expedition. In order for a petition
for a writ of error coram nobis to merit an evidentiary hearing, the Petitioner must
sufficiently allege in his petition that he has already caught the fish.

       It is for the foregoing reasons that I dissent.



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      _________________________________
      DAVID H. WELLES, JUDGE




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