        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs August 21, 2013

                   JOANN G. ROSA v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Knox County
                     No. 100898     Mary Beth Leibowitz, Judge


             No. E2013-00356-CCA-R3-ECN-FILED-OCTOBER 21, 2013


The Petitioner, Joann G. Rosa, appeals the Knox County Criminal Court’s denial of her
petition for a writ of error coram nobis regarding her conviction for first degree murder, for
which she is serving a life sentence. The Petitioner contends that the trial judge who
presided over her jury trial pleaded guilty to official misconduct, that the judge’s misconduct
was newly discovered evidence entitling her to a new trial, that the judge’s misconduct
created structural error entitling her to a new trial, and that the trial judge who denied coram
nobis relief had a conflict of interest because she was mentioned in the Tennessee Bureau of
Investigation (TBI) report regarding the misconduct allegation. We affirm the judgment of
the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which A LAN E. G LENN and
R OGER A. P AGE, JJ., joined.

Joann G. Rosa, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Kyle Hixson, Assistant Attorney
General; and Randall E. Nichols, District Attorney General, for the appellee, State of
Tennessee.

                                          OPINION

       This case arises from the 1995 killing of James Dalton. This court summarized the
facts of the case in the appeal of the Petitioner’s conviction:

             On March 25, 1995, the defendant; her codefendant, Dennis Halcomb;
       the murder victim, James Dalton; and two friends, Teresa Dake and Larry
Davis, rented two adjoining motel rooms in Athens, Tennessee, and spent the
evening “partying.” The next day, the group decided to spend another evening
at the motel. That evening, while Dalton and Davis remained at the motel, the
defendant, co-defendant Halcomb, and Dake robbed the gas station where
Dake worked.

       Early the next morning, on March 27, 1995, the group left Athens and
drove to Knoxville, stopping at another motel, where they again rented
adjoining rooms. The defendant, co-defendant Halcomb, and Dake expressed
concern that Dalton would report the robbery to authorities. The defendant
said they were going to have to “do something” to keep him from “saying
anything.” Later, while Davis and Dake slept in one of the motel rooms and
Dalton slept in the other, the defendant and co-defendant Halcomb discussed
what to do about Dalton. They planned to take Dalton’s wallet and car, and
Halcomb said he was going to knock Dalton out. The defendant took Dalton’s
keys and wallet and put them in the room where Dake and Davis were
sleeping.

       When the defendant returned, Dalton confronted co-defendant Halcomb
about his missing keys and wallet. Halcomb, who was approximately 6'3" and
weighed over 200 pounds, began hitting Dalton, who was approximately 5'4"
and 145 pounds. Halcomb held Dalton’s neck in a chokehold and asked the
defendant to help him. While Dalton was on his knees leaning over the bed,
the defendant grabbed the front of Dalton’s throat and choked him, even while
Dalton gasped for air and begged her to stop. Halcomb removed Dalton’s belt
from his pants, placed it around Dalton’s neck, and told the defendant to hold
the belt. While Halcomb went to the restroom, the defendant choked Dalton
with the belt until his face turned blue. When Halcomb returned, the
defendant checked Dalton for a pulse, but did not find one.

       They drove Dalton’s body to an area of town with which the defendant
was familiar. After the defendant sliced Dalton’s throat with a box cutter to
ensure he was dead, they dumped his body on the side of the road, covering it
with leaves. They returned to the motel, picked up Dake, and traveled in
Dalton’s car to Illinois to visit the defendant’s family and then to Daytona
Beach, Florida.

      Meanwhile, Dalton was reported missing. On April 3, 1995, Sherry
Wade, a friend of Dake and the defendant, received a call from the defendant.
Knowing Dalton was missing and thinking he might be with them, Wade asked

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       the defendant where Dalton was. At first, the defendant replied she did not
       know, but then she told Wade “he was gone; he’s gone; he’s under a tree.” A
       couple of days later, Wade reported this conversation to the McMinn County
       Sheriff’s Department.

              On April 6, 1995, the defendant, her codefendant, and Dake were
       apprehended in a traffic stop while driving Dalton’s vehicle in Florida. During
       an interview by the Florida authorities, the defendant initially denied knowing
       anything about Dalton’s disappearance, but she later drew a map showing
       where his body was buried. Using the map, Tennessee authorities found the
       body[.]

State v. Rosa, 966 S.W.2d 833, 836 (Tenn. Crim. App. 1999). The Petitioner sought post-
conviction relief on the ground that she received the ineffective assistance of counsel. The
trial court denied relief, and this court affirmed. See Joann Gail Rosa v. State, No. E2002-
00437-CCA-R3-PC, slip op. at 1 (Tenn. Crim. App. Mar. 17, 2003), perm. app. denied
(Tenn. Sept. 2, 2003).

       On December 28, 2012, the Petitioner filed her petition for a writ of error coram nobis
on the ground that the trial judge who presided over her jury trial was convicted of official
misconduct on March 10, 2011. She argued that the TBI report and an interview of the judge
by a reporter showed the judge was intoxicated while presiding over criminal cases dating
from 1996 and that this was newly discovered evidence entitling her to a new trial. She
further argued that the judge’s ability to act as the thirteenth juror was impaired by his
addiction and that had she known of the addiction, she would have requested the judge recuse
himself from the trial. She argued the judge’s intoxication prevented her from being
convicted of lesser included homicide offenses.

        The trial court summarily denied relief. It found that the Petitioner presented no
evidence showing the “inappropriate behavior” for which the trial judge pleaded guilty. It
found that the Petitioner failed to make specific allegations showing inappropriate conduct
by the judge during her trial and that the alleged conduct “would have changed the outcome
of her trial in 1996.” The court also found that the statute of limitations for filing a petition
for a writ of error coram nobis had expired. This appeal followed.

        The Petitioner contends that the trial court erred by denying her coram nobis relief.
She argues that the TBI investigation into the trial judge who presided over her trial
constitutes newly discovered evidence because the report showed the judge engaged in
official misconduct, namely prescription drug abuse and illegal activities surrounding his
addiction. She argues the judge’s misconduct created structural error, entitling her to a new

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trial. The State responds that the court properly denied coram nobis relief because the
petition was untimely and that the Petitioner has failed to state a cognizable claim. We agree
with the State.

        A writ of error coram nobis lies “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 (2012); State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995). The
decision to grant or deny such a writ rests within the sound discretion of the trial court.
Teague v. State, 772 S.W.2d 915, 921 (Tenn. Crim. App. 1988). A petition for a writ of error
coram nobis must be filed within one year of the date the judgment becomes final in the trial
court. T.C.A. § 27-7-103 (2000); State v. Mixon, 983 S.W.2d 661, 663 (Tenn. 1999); State
v. Ratliff, 71 S.W.3d 291, 295 (Tenn. Crim. App. 2001). The only exception to the statute
of limitations is when due process principles require tolling. Workman v. State, 41 S.W.3d
100, 103 (Tenn. 2001).

        Due process may require tolling of the limitations period if a petitioner seeks relief
based upon newly discovered evidence of actual innocence. Harris v. State, 301 S.W.3d 141,
145 (Tenn. 2010); Workman, 41 S.W.3d at 101. “‘Before 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.’” Workman, 41 S.W.3d at 102 (quoting
Burford v. State, 845 S.W.2d 204, 208 (Tenn. 2002)). Nevertheless, a petitioner seeking
relief under the statute must exercise due diligence in presenting claims that fall outside the
statute of limitations. Harris, 301 S.W.3d at 144; Mixon, 983 S.W.2d at 670.

       Although the Petitioner failed to attach a copy of the judgment of conviction to her
petition for relief, the trial court’s written order denying coram nobis relief states that the
Petitioner was sentenced on September 5, 1996. The Petitioner’s conviction became final
on June 14, 1999, when the supreme court denied her application for permission to appeal.
See Rosa, 966 S.W.2d at 833. The petition was untimely. The State argues that the
Petitioner is not entitled to tolling the statute of limitations because she has failed to state a
cognizable claim for coram nobis relief.

       Our supreme court has said that determining whether due process requires tolling
requires a three-step analysis in which the court must

       (1) determine when the limitations period would normally have begun to run;
       (2) determine whether the grounds for relief actually arose after the limitations
       period would normally have commenced; and (3) if the grounds are

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       “later-arising,” determine if, under the facts of the case, a strict application of
       the limitations period would effectively deny the petitioner a reasonable
       opportunity to present the claim. In making this final determination, courts
       should carefully weigh the petitioner’s liberty interest in “collaterally attacking
       constitutional violations occurring during the conviction process,” Burford,
       845 S.W.2d at 207, against the State’s interest in preventing the litigation of
       “stale and fraudulent claims.” Id. at 208.

State v. Sands, 903 S.W.2d 297, 301 (Tenn. 2005).

        The Petitioner argues that the TBI report and an interview of the judge by a reporter
showed that the judge was intoxicated while presiding over criminal cases dating from 1996
and that this is newly discovered evidence entitling her to a new trial. The Petitioner’s
argument is misplaced. “When a trial court addresses a petition for [a] writ of error coram
nobis, it must find that the subsequently or newly discovered evidence ‘may have resulted
in a different judgment, had it been presented at the trial.’” Wilson v. State, 367 S.W.3d 229,
235 (Tenn. 2012) (quoting T.C.A. § 40-26-105(b)). As a result, not only must the newly
discovered evidence supporting a petition for a writ of error coram nobis suggest actual
innocence, it must also be admissible. Id. at 237 (internal citations omitted) (concluding that
an assistant district attorney’s handwritten note expressing views about the credibility of two
of the State’s witnesses was inadmissible evidence and was insufficient to support a petition
for a writ of error coram nobis).

       In Gary S. Mayes v. State, No. E2012-00680-CCA-R3-PC, slip op. at 4 (Tenn. Crim.
App. Feb. 7, 2013), the petitioner sought coram nobis relief on a similar ground as the
Petitioner in the present case. There, the petitioner contended that “newly discovered
evidence related to ‘questions concerning the judgment and morality of the [post-conviction
judge]’ warranted coram nobis relief.” Id., slip op. at 2. This court concluded that the
general allegation did not “cast doubt” on the petitioner’s guilt and could not form the basis
of a petition for coram nobis relief. Id., slip op. at 4.

        We conclude that the Petitioner has failed to state a cognizable claim for coram nobis
relief because she has not presented evidence of actual innocence. Evidence of intoxication
and illegal activities surrounding the judge’s drug abuse would not have been admissible at
her trial because it was not relevant and probative of whether she committed the crime of
which she was convicted. See Tenn. R. Evid. 401 (defining relevant evidence as “having any
tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence”). Likewise, the
judge’s intoxication during her trial does not relate to matters litigated at the trial. See T.C.A.
§ 40-26-105. Tolling of the statute of limitations is unnecessary because she has failed to

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state a cognizable claim for relief. The Petitioner is not entitled to relief on this basis.

        The Petitioner argues the trial judge’s intoxication created structural error. “Structural
constitutional errors are errors that compromise the integrity of the judicial process itself.”
State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008) (citing State v. Garrison, 40 S.W.3d
426, 433 n.9 (Tenn. 2000)). Structural errors “necessarily render a criminal trial
fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Neder v.
United States, 527 U.S. 1, 9 (1999). As a result, structural errors are subject to automatic
reversal because they deprive a defendant of a right to a fair trial. Rodriguez, 254 S.W.3d
at 361.

        Our supreme court recently considered whether the behavior of the trial judge who
presided over the Petitioner’s trial rose to the level of structural error absent any evidence
that the judge’s misconduct affected the integrity of the trial. See State v. Letalvis Cobbins,
LeMaricus Davidson, and Geroge Thomas, No. E2012-00448-SC-R10-DD (Tenn. May 24,
2012). The defendants in Letalvis Cobbins, et al. argued that the trial judge’s misconduct
outside the courtroom constituted structural error, entitling them to new trials. Our supreme
court, though, disagreed. Similar to the Petitioner, the defendants failed to show any conduct
on the part of the judge affecting the integrity of their trials. The court concluded that a trial
judge’s misconduct alone does not constitute structural error. Id., slip op. at 4. The court
also concluded that a defendant must show that the “misconduct affected the trial
proceedings.” Id. (citing State v. Benson, 973 S.W.2d 202, 206 (Tenn. 1998) (concluding
that a petitioner must show that the trial judge, who engaged in acts of corruption at the time
of the trial, actually solicited a bribe from the petitioner)); see State v. Raynella Dossett
Leath, No. E2011-00437-CCA-R3-CD, slip op. at 43 (Tenn. Crim. App. June 3, 2013)
(concluding “a trial judge’s misconduct outside the courtroom does not constitute structural
error when there is no showing . . . in the record that the trial judge’s misconduct affected the
outcome of the proceedings”) (internal quotation omitted), perm. app. filed (Tenn. Aug. 1,
2013). The Petitioner failed to allege in her petition specific instances of conduct by the trial
judge affecting the integrity of her trial. Therefore, she cannot establish structural error. The
Petitioner is not entitled to relief on this basis.

        The Petitioner also argues that the trial judge who denied coram nobis relief had a
conflict of interest because she was mentioned in the TBI report. The State contends the
issue is waived because the Petitioner failed to include the report in the appellate record. We
agree that the Petitioner is not entitled to relief.

       The petition does not describe the nature of the alleged conflict of interest. The
Petitioner’s failure to describe the alleged conflict of interest and any mention of the trial
judge in the report, alone, do not justify recusal. See Alley v. State, 882 S.W.2d 810, 820

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(Tenn. Crim. App. 1994) (concluding that recusal is “warranted when a person of ordinary
prudence in the judge’s position, knowing all of the facts known to the judge would find a
reasonable basis for questioning the judge’s impartiality”). The Petitioner is not entitled to
relief.

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.




                                           ____________________________________
                                           JOSEPH M. TIPTON, PRESIDING JUDGE




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