        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                              December 13, 2016 Session

             JEFFERY LEE MILLER v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Montgomery County
                   No. 037842 William R. Goodman, III, Judge
                      ___________________________________

                   No. M2016-00706-CCA-R3-ECN – May 17, 2017
                       ___________________________________

The Petitioner, Jeffery Lee Miller, appeals the Montgomery County Circuit Court’s
dismissal of his petition for writ of error coram nobis. The Petitioner seeks relief from
his premeditated first degree murder conviction. The Petitioner argues that (1) the coram
nobis court erred by determining that due process considerations did not toll the statute of
limitations; (2) the coram nobis court abused its discretion by applying an incorrect legal
standard regarding reasonable diligence in its order and final judgment; (3) the coram
nobis court’s grounds for dismissal were erroneous; and (4) the coram nobis court’s
assessment of the State’s open file policy was erroneous. Upon review, we affirm the
judgment of the coram nobis court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR. and J. ROSS DYER, JJ., joined.

Roger Smith, Nashville, Tennessee, (at trial), and Karen McDonald, Nashville,
Tennessee, (on appeal), for the Petitioner, Jeffery Lee Miller.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
John W. Carney, District Attorney General; and Helen O. Young, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                        OPINION

      On April 28, 1997, the Petitioner was charged with one count of premeditated first
degree murder in the shooting death of Josh Kelly. At the conclusion of his first trial, the
jury was unable to reach a verdict, and a mistrial was declared. On August 25, 1997, a
second trial was held, and the Petitioner was convicted of the charged offense. The facts
underlying the Petitioner’s conviction are as follows:
The evidence at trial established that on September 1, 1996, the [Petitioner]
shot and killed the victim, Josh Kelley. The evidence indicated that earlier
that evening, three young ladies, Tennille, Cassie, and Heather, were
driving “up and down” Riverside Drive in Clarksville, Tennessee. They
visited a motel where Mike Powers, Cassie’s boyfriend, was throwing a
party. While in the motel room, Tennille saw the [Petitioner] preparing to
leave the room, at which point someone handed a gun to him. The
[Petitioner] then left the party. Shortly thereafter, the three young ladies
decided to go cruising on Riverside Drive again. They pulled in the
parking lot of Page and Taylor’s Sporting Goods Store to change drivers.
As they were changing seats, a young man in the parking lot told them to
“suck [his] dick or leave.” The three young ladies left the area and returned
to the party at the motel.

When they arrived at the motel, the ladies told Mr. Powers about the young
man’s comment. At this point, Mr. Powers and the [Petitioner], who had
returned to the motel, went to the [Petitioner’s] car, and the [Petitioner]
followed the ladies to the parking lot of Page and Taylor’s Sporting Goods
Store. According to the [Petitioner’s] second statement to the police, upon
arrival at the parking lot, the [Petitioner] told Mr. Powers to “get the gun
from under the passenger seat.” According to at least one witness, when
Mr. Powers exited the vehicle, he had a gun in his waistband. The
[Petitioner] and Mr. Powers then approached a group of teenagers standing
in the parking lot. The evidence at trial indicated that Mr. Powers asked
which of them had told his girlfriend to “suck [his] d**k.” In response, the
victim stepped forward and said, “We don’t know you. We don’t know
your girlfriend. We didn’t say anything to anybody.” Mr. Powers then
pulled the gun from his waistband and pointed it at the victim. According
to one witness, the [Petitioner] told Mr. Powers to “cap [the victim].” Mr.
Powers lowered the gun to his side, at which point the [Petitioner] took the
gun out of Mr. Powers’ hand. The [Petitioner] cocked the gun, pulled the
slide back, pointed the gun at the ground in front of the victim’s feet, and
fired. The [Petitioner] then raised the gun, pointed it at the victim’s chest,
and fired. After the shooting, the [Petitioner] and Mr. Powers left the
scene.




                                    -2-
       The Petitioner received a sentence of life with the possibility of parole.1 In his
direct appeal, the Petitioner challenged the sufficiency of the evidence arguing that the
shooting was an accident and that he was high on cocaine and unable to form the
necessary intent. This court affirmed the conviction on direct appeal, and the Tennessee
Supreme Court denied permission to appeal. State v. Jeffery Miller, No. 01C01-9801-
CC-00029, 1999 WL 398188, at *1 (Tenn. Crim. App. June 18, 1999). Thereafter, the
Petitioner filed a petition for post-conviction relief, alleging that his trial counsel was
ineffective because he failed to call his co-defendant, Michael Powers, as a witness. He
also challenged the failure to charge the lesser included offenses of premeditated first
degree murder. Jeffery Lee Miller v. State, M2003-02841-CCA-R3-PC, 2005 WL
901130 at *1 (Tenn. Crim. App. Apr. 19, 2005). The Petitioner also filed a petition for
writ of habeas corpus. Jeffery Miller v. Jewell Steele, Warden, M2012-01628-CCA-R3-
HC, 2013 WL 3872835, at *1 (Tenn. Crim. App. July 24, 2013). This court affirmed the
denial and dismissal of his petition for post-conviction relief and writ of habeas corpus.

       On July 21, 2015, nearly eighteen years following his conviction, the Petitioner,
through counsel, filed a petition for writ of error coram nobis alleging that he had “newly
discovered evidence which may have resulted in a different judgment or a different
punishment had the evidence been presented at his trial.” After requesting his
investigative file from the Clarksville District Attorney’s Office, the Petitioner
discovered additional statements from two key witnesses, Jeremy Gibbs and Matthew
Bryant. Jeremy Gibbs testified on behalf of the State in the Petitioner’s trial, and
Matthew Bryant testified as a State witness in the trial of Michael Powers, the
Petitioner’s co-defendant. Prior to the Petitioner requesting his investigative file, the only
statement he had was Detective Cheryl Anderson’s handwritten version of Gibbs’
statement.

        The Petitioner claims that Gibbs’ handwritten statement was “significant” because
it contained additional information that was not “conveyed in the question-and-answer
statement written by Detective Cheryl Anderson.” Gibbs’ handwritten statement
included a description of the Petitioner that varied from “Gibbs’s trial statement and his
statement at the preliminary hearing.” Finally, Gibbs’ handwritten statement included
“his admission that he entered the crime scene and picked up one of the shell casings.”
The Petitioner claims that Gibbs’ statement could have been used to “damage[] the
integrity of the . . . investigation and the credibility of the prosecution’s law enforcement
witnesses” and show that “the crime scene was not secure, that no log of persons at the


        1
          This court’s opinion regarding the petition for post-conviction relief erroneously stated that the
Petitioner received a sentence of life without the possibility of parole. However, the judgment form states
that the Petitioner received a sentence of life.

                                                   -3-
scene was disclosed, and that the prosecution witnesses did not report . . . Gibbs’s
tampering with the evidence.”

        The Petitioner also asserts that Bryant’s statement was important because this
statement “[was] consistent with [the Petitioner’s] testimony and [was] inconsistent with
the version of events related by the prosecution witnesses.” Bryant’s statement was
handwritten by Bryant and then typed by the Clarksville Police Department. In Bryant’s
statement, he claimed that the Petitioner fired two shots at the ground and then left the
scene. The Petitioner argues that this statement corroborates his “defense that the shots
were not fired at the victim and that the shooting was not premeditated.” The Petitioner
asserts that he was not at fault in failing to present the alleged newly discovered evidence
because he did not discover the two witness statements until he received the investigative
file in August 2014.

        Attached to the petition were affidavits signed by the Petitioner, the Petitioner’s
counsel, whom we will refer to as appellate counsel, and Chris M. Jones, a former Shelby
County Sheriff and alleged expert in the field of police practices. In the Petitioner’s
affidavit, he explained that he requested his investigative file from the Clarksville District
Attorney’s Office, which he received in late August 2014. He claimed that there were
two witness statements he had never seen and that he “had no knowledge of the contents
of these statements.” The Petitioner also claimed that trial counsel never discussed the
contents of these two statements with the Petitioner, and he believed that trial counsel
was not aware of these witness statements. The affidavit from appellate counsel stated
that both the Petitioner and appellate counsel sent letters to trial counsel asking him if he
received the two witness statements at issue. Trial counsel did not respond to the
Petitioner’s or appellate counsel’s letters. In the third affidavit, Jones stated that the
Clarksville Police Department failed to secure the crime scene and that “[t]he
contamination of the crime scene and the tampering with the evidence [by Gibbs] were
not logged or reported” and the contamination was not “disclosed by testimony at either
of [the Petitioner’s] trials.”

       On December 14, 2015, the court conducted a hearing on the petition for writ of
error coram nobis. Prior to the hearing, the coram nobis court asked appellate counsel
why the petition was not barred by the one-year statute of limitations. Appellate counsel
argued that it was not the Petitioner’s fault but rather “external conduct” that prevented
the Petitioner from reviewing the two witness statements. The court then asked if trial
counsel was “arguably ineffective” since he could have obtained the witness statements
by interviewing the two witnesses. Appellate counsel stated that (1) Bryant was not
listed as a witness in the Petitioner’s trial, and (2) although Gibbs did testify at the
Petitioner’s trial, trial counsel never received his handwritten statement so “counsel never
questioned him on that.” The State argued that Gibbs was questioned about his
                                            -4-
handwritten statement during the Petitioner’s trial and that Bryant was subpoenaed to
testify at the Petitioner’s and Power’s trial before their cases were severed. The State
also argued that Bryant testified at Power’s trial, and trial counsel could have obtained a
copy of Bryant’s testimony at any time. Furthermore, the State claimed that the
Petitioner’s affidavit in support of his petition did not satisfy the requirements of the
coram nobis statute because the affidavits were not based on “[f]irst hand knowledge of
what occurred.” The State also noted that there was no affidavit from the Petitioner’s
trial counsel.2

       The Petitioner testified that his defense at trial was that he was intoxicated and that
he was “fleeing from the scene when the second shot was fired.” Therefore, any
statements that could have corroborated his testimony would have been helpful at trial.
When the Petitioner received his investigative file from the Clarksville District
Attorney’s Office there were several undisclosed witness statements from Gibbs and
Bryant. The Petitioner remembered discussing one of Gibbs’ statements, which was
handwritten by Detective Anderson, prior to trial. However, the Petitioner had never
seen the second statement, which was handwritten by Gibbs, and was more detailed than
the statement written by Detective Anderson. The first time the Petitioner saw Gibbs’
handwritten statement was August 6, 2014. In Gibbs’ handwritten statement, he stated
that he picked up an empty shell casing and tried to give it to a police officer on the scene
but the officer told him to put it back where he found, and he did. Gibbs’ statement also
described the Petitioner as “possibly Hispanic” with a bald head and sideburns. The
Petitioner claimed that he never discussed this statement with trial counsel.

       Next, the Petitioner testified that he never discussed Bryant’s handwritten or
typewritten statements. The Petitioner argued that he was not aware of this witness and
that he never saw Bryant’s statements until he received the investigative file in 2014. In
Bryant’s statements, he claimed that the Petitioner “took the gun and aimed down at
Josh’s legs and shot twice. Then they just walked to their car and drove off.” The
Petitioner believed that this statement was significant because it corroborated the
Petitioner’s version of events and “would show that it [sic] was no intent.” The Petitioner
also testified that it took him two years to receive the investigative file from the District
Attorney’s Office.

        On cross-examination, the Petitioner acknowledged that he was not “a hundred
percent” certain that trial counsel did not receive the two witness statements. The
Petitioner stated that he was unaware that evidence had been moved at the crime scene
until he received Gibbs’ handwritten statement. The Petitioner then read excerpts of his
trial transcript where Gibbs testified that he picked up a live round and left the empty

       2
           The Petitioner’s trial counsel did not testify at the coram nobis hearing.
                                                     -5-
shell casing on the ground. The Petitioner argued that Gibbs’ testimony differed from his
handwritten statement because in the handwritten statement, Gibbs said he picked up a
shell casing. He claimed that Gibbs could have been impeached by this inconsistency at
trial. The Petitioner also claimed that Gibbs statement was important because he
described the Petitioner as “possibly Hispanic” with a bald head and sideburns. The State
then pointed out that in his second trial, Gibbs testified that “everything went blank” and
the Petitioner agreed that he “was not that good of a witness.” The Petitioner asserted
that trial counsel could have had a stronger cross-examination of Gibbs if he had his
handwritten statement.

        The Petitioner also acknowledged that his case was severed from his co-
defendant’s the morning of trial, and he was not aware that Bryant was subpoenaed to
testify. He claimed Bryant’s statement could have been used at trial to show that the
shooting was an accident. However, he agreed that Bryant’s statement did not say that
the shooting was an accident and that the statement said the Petitioner fired two shots at
the ground and then left the scene. He asserted that this statement could show that the
bullet ricocheted off the ground and killed the victim. The Petitioner also read portions
of the statement he gave to Detective Anderson, and he agreed that his statement did not
say anything about the gun firing accidently. The Petitioner agreed that he never
requested the investigative file from Detective Anderson and only filed his request with
the District Attorney’s Office.

       Detective Anderson testified that she was the lead detective on the Petitioner’s
case. She testified that it was her normal practice to write out a defendant’s statement
because her handwriting was “more legible than most people.” When asked why there
were two handwritten statements for Gibbs, she explained that Gibbs arrived at the police
station and began writing his statement with another detective. When Detective
Anderson arrived, she spoke with Gibbs and her handwritten statement contained the
content of that conversation. She explained that her handwritten statement consisted of
“questions [she] had about his statement.” Detective Anderson agreed that the crime
scene was a “cluster” and that when police arrived, they secured the scene. She also
acknowledged that at some point, Gibbs picked up either a bullet or a shell casing and
was told to put it back where he found it. Finally, Detective Anderson remembered
having a pre-trial conference with the Petitioner’s trial counsel where she gave trial
counsel a complete copy of her case file.

       On cross-examination, Detective Anderson stated that she was not “coached” by
the District Attorney’s Office before the hearing and that she was never asked to withhold
any information from the defense. She recalled that the District Attorney’s Office had an
open file discovery policy and that she reviewed her case file with the Petitioner’s trial
counsel. She reiterated that her handwritten statement of Gibbs’ interview contained only
                                           -6-
“follow-up questions” to the statement Gibbs had already written. Detective Anderson
recalled that the Petitioner’s and Powers’ cases were severed the morning of trial but that
there was no change in the State’s proof and that Bryant testified at Powers’ trial. After
reading excerpts of her trial testimony from Powers’ trial, Detective Anderson agreed that
no issue was raised regarding how Gibbs’ statement was taken or the location of the live
rounds and shell casing that were found on the scene. Detective Anderson also recalled
that the medical examiner testified that the bullet entered the victim’s “center sternum
and at a downward trajectory rested in the small of his back.” There was no testimony
consistent with the bullet ricocheting off the ground or that would corroborate the
Petitioner’s theory that the shooting was an accident.

        Assistant District Attorney (ADA) Helen Young testified that she was the
prosecuting attorney in the Petitioner’s first and second trial. She testified that at the time
of the Petitioner’s trial, the District Attorney’s Office had an open file discovery policy,
meaning that the detectives would give her a “complete case file and copies and the
[d]efense [would get] everything that [she] gets.” ADA Young was “ninety-nine point
nine percent certain” that both of Gibbs’ statements were given to the defense at the time
of the preliminary hearing. She also testified that she gave trial counsel Bryant’s
statements and that she questioned Bryant about his statements during Powers’ trial.
ADA Young agreed that the Petitioner’s trial counsel was not obligated to sit through
Power’s trial but that trial counsel was present for most of the trial. During the
Petitioner’s first trial, ADA Young objected when trial counsel asked Detective Anderson
about the location of the live round and the shell casing. ADA Young explained that her
objection was based on the form of the question because it asked Detective Anderson to
speculate about where the live round and shell casing were found. Furthermore, she
testified that trial counsel eventually questioned Gibbs about moving either the shell
casing or the live round during the Petitioner’s trial.

       After considering the arguments of counsel, the coram nobis court denied the
petition because it was barred by the one-year statute of limitation. The coram nobis
court further found that the alleged newly discovered evidence “would not have [resulted
in] a different judgment” and filed a written order dismissing the petition on March 10,
2016. The written order did not explicitly conclude that the petition was barred by the
statute of limitations. Rather, it denied relief reasoning that the Petitioner had the
opportunity “through the ‘exercise of reasonable diligence’ to have obtained copies of all
prior [witness] statements” given that he had two separate trials. It is from this order that
the Petitioner now timely appeals.

                                        ANALYSIS



                                             -7-
       On appeal, the Petitioner argues that (1) the coram nobis court erred by
determining that due process considerations did not toll the statute of limitations; (2) the
coram nobis court abused its discretion by applying an incorrect legal standard regarding
reasonable diligence in the order and the final judgment; and (3) the coram nobis court’s
grounds for dismissal were erroneous; and (4) the coram nobis court made an erroneous
assessment of the State’s open file policy.3 The State contends that the coram nobis court
properly dismissed the petition because it was time-barred and without merit. After a
careful review of the record, we agree with the State.

        A writ of error coram nobis is available to convicted defendants. T.C.A. § 40-26-
105(a). However, 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). Relief by petition for writ of error coram nobis is provided for in
Tennessee Code Annotated section 40-26-105. The statute provides, in pertinent part:

       (b) 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). To seek coram nobis relief, the petitioner must establish that he
or she was “‘without fault’ in failing to present the evidence at the proper time.” Harris
v. State, 102 S.W.3d 587, 592-93 (Tenn. 2003). A petitioner is “without fault” if he or
she is able to show that “the exercise of reasonable diligence would not have led to a
timely discovery of the new information.” State v. Vasques, 221 S.W.3d 514, 527 (Tenn.
2007). The coram nobis court will then determine “whether a reasonable basis exists for
concluding that had the evidence been presented at trial, the result of the proceedings
might have been different.” Id. “The decision to grant or deny a petition for the writ of
error coram nobis rests within the sound discretion of the trial court, and this court’s
review of this issue is limited to determining whether the trial court abused its
discretion.” State v. Hall, 461 S.W.3d 469, 496 (Tenn. 2015) (citing Harris v. State, 301
S.W.3d 141, 144 (Tenn. 2010). “A court abuses its discretion when it applies an
incorrect legal standard or its decision is illogical or unreasonable, is based on a clearly

       3
           The issues have been reordered for clarity.
                                                    -8-
erroneous assessment of the evidence, or utilizes reasoning that results in an injustice to
the complaining party.” Wilson v. State, 367 S.W.3d 229, 235 (Tenn. 2012) (citing
Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176 (Tenn. 2011)).

       “To qualify as newly discovered evidence, the evidence must have been unknown
to the defendant at the time of trial.” Harris, 301 S.W.3d at 160 (Koch, J., concurring in
part and concurring in result) (internal footnote omitted). “A narrow exception exists to
this requirement, where ‘although not newly discovered evidence, in the usual sense of
the term,’ the ‘availability’ of the evidence ‘is newly discovered.’” Id. at 160-61.
Furthermore, “[i]mpeachment evidence might be particularly compelling under the
circumstances of a particular case. Moreover, a complete restriction on the availability of
coram nobis relief in the case of any newly discovered impeachment evidence would be
inconsistent with the discretion afforded to our trial courts.” Vasques, 221 S.W.3d at
528. However, “the ultimate question is the effect of the newly discovered evidence on
the outcome” when viewed in light of Mixon, Workman, and Vasques. Id.

        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; Mixon,
983 S.W.2d at 671. For the purposes of a coram nobis petition, 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, 301 S.W.3d at 145. The State has the burden
of raising the statute of limitations bar as an affirmative defense in a coram nobis
proceeding. Harris, 301 S.W.3d at 144 (citing Harris, 102 S.W.3d at 593). Whether a
claim is barred by the statute of limitations is a question of law, which this court reviews
de novo. Id. (citing Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn.
2007)).

        (1) Statute of Limitations. Here, the Petitioner’s judgment was entered on August
28, 1997. His judgment became final thirty days later; however, his petition for writ of
error coram nobis was not filed until July 21, 2015, well outside the statute of limitations.
The Petitioner argues that due process considerations require tolling the statute of
limitations, since he was unaware of the two statements until he received his investigative
file in August 2014. See Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001) (holding
that due process concerns may require that the statute of limitations for filing a petition
for a writ of error coram nobis be tolled). To determine whether due process concerns
require a tolling of the statute of limitations, “a court must weigh the petitioner’s interest
in obtaining a hearing to present a later-arising ground for relief against the State’s

                                             -9-
interest in preventing stale and groundless claims.” Id. In weighing these interests,
courts should use the following test:

       (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 “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.

Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995).

        Here, the limitations period would have begun to run on September 27, 1997,
which is thirty days after his petition became final, since it appears that no post-trial
motions were filed in this case. Therefore, the statute of limitations would have expired
one year later on September 27, 1998. Again, the Petitioner did not file his petition for
writ of error coram nobis until July 21, 2015, almost seventeen years after the statute of
limitations lapsed. Next, we must determine whether the grounds for relief arose after the
statute of limitations would normally have commenced. The Petitioner received the
investigative file containing the alleged newly discovered evidence in August 2014,
which was after the limitations period commenced. Despite the Petitioner’s testimony
that he was unaware of this evidence until August 2014, his grounds for relief did not
arise after the one-year statute of limitations commenced. There is simply no testimony
or explanation as to why the Petitioner waited nearly seventeen years to request his
investigative file. In any event, Detective Anderson testified that the Petitioner’s trial
counsel was given a copy of her investigative file before the Petitioner’s first trial. ADA
Young testified that the District Attorney’s Office had an open file discovery policy and
that she was “ninety-nine point nine percent certain” that both witness statements were
provided to trial counsel. The coram nobis court accredited the testimony of the State’s
witnesses on this issue, and this court will not disturb that finding. See State v. Hart, 911
S.W.2d 371, 375 (Tenn. Crim. App. July 19, 1995).

       Furthermore, the only evidence the Petitioner provided at the coram nobis hearing
was his belief that the two witness statements were not provided to trial counsel. The
Petitioner claims that he never discussed Gibbs’ second handwritten statement and that he
did not know of Bryant before he received the investigative file in August 2014. The
Petitioner assumes that trial counsel never received these statements since trial counsel
did not discuss these statements with him. However, trial counsel did not testify at the
coram nobis hearing; thus, we are unable to conclude that trial counsel did not receive the
two witness statements at issue. Moreover, the Petitioner acknowledged that he cannot
                                           - 10 -
be “[one] hundred percent” certain that trial counsel did not receive these witness
statements. Accordingly, we conclude that the Petitioner’s ground for relief did not arise
after the one-year statute of limitations commenced. In light of this determination, we do
not need to consider whether a strict application of the statute of limitations would deny
the Petitioner a reasonable opportunity to present his claim.

       In considering whether the statute of limitations is tolled for due process concerns,
we note that an evidentiary hearing on the petition for writ of error coram nobis was
conducted in this case. In the order denying relief, the coram nobis court did not address
whether the statute of limitations should be tolled in this case. However, at the
conclusion of the coram nobis hearing, the court found that the petition was time-barred
and, even if it was not barred, the court found that the statements would not have led to a
different judgment. Based on the record and the transcript from the coram nobis hearing,
we decline to toll the statute of limitations in this case. However, in the event of further
review, we will address the Petitioner’s remaining claims. See Arthur L. Armstrong v.
State, No. M2008-02328-CCA-R3-CO, 2010 WL 2977890, at * 12 (Tenn. Crim. App.
July 30, 2010) (This court refrained from tolling the statute of limitations but felt that the
interests of justice and the possibility of further review required an examination of the
petitioner’s claim on its merits since an evidentiary hearing had been conducted.).

        (2) Standard of Review. The Petitioner argues that the coram nobis court used the
“incorrect legal standard” at the conclusion of its order denying the petition and in the
final judgment. The State concedes that the court used the “would have standard” that
was rejected in Vasques when it determined that the “the written statements would [not]
have [led] to a different result.” Vasques, 221 S.W.3d at 527. Here, we are unable to
conclude that the coram nobis court used the incorrect legal standard. Initially, the trial
court found that “through the ‘exercise of reasonable diligence’” the Petitioner could
have obtained all prior statements of Gibbs and Bryant. It additionally determined that
the two witness statements at issue “would [not] have [led] to a different result.”
Although the coram nobis court used the “would have” standard rejected in Vasques, this
does “not necessarily signify the application of an incorrect legal standard.” See Wilson
v. State, No. M2013-01807-CCA-R3-CO, 2014 WL 3748573, at *6 (Tenn. Crim. App.
July 30, 2014). At the conclusion of the coram nobis hearing, the court applied the “may
have” standard and denied the petition. This court in Wilson addressed a similar issue
and reasoned as follows:

       Here, the coram nobis court expressly applied the “may have” standard
       elsewhere in its findings; therefore, this court views the coram nobis court’s
       “would not have” formulation as its attempt to create the negative form of
       the correct “may have” standard. As Judge Witt observed, the more proper
       negative form of the “may have” standard is “could not have,” and we
                                            - 11 -
       encourage court’s in the use of that term. However, due to the coram nobis
       court’s use of the proper “may have” standard elsewhere in its order, we
       hold that the proper legal standard was applied despite the court’s use of an
       improper negative formulation.

Wilson, 2014 WL 3748573, at *6. Based on the same reasoning, we conclude that the
trial court applied the proper legal standard in denying the petition. The Petitioner is not
entitled to relief.

        (3) Grounds for Dismissal. Next, the Petitioner generally contends that the coram
nobis court’s grounds for dismissal were erroneous. The Petitioner argues that the coram
nobis court provided an “erroneous assessment” of the two witness statements in its order
denying the petition. The Petitioner asserts that Gibbs’ statement could have been used
for impeachment and to “dispute the chain of custody presented at trial . . . and discredit
the prosecution’s proof of the entire investigation.” The coram nobis court concluded,
and we agree, that the witness statements could only be used for impeachment purposes.
First, the Petitioner alleges he could have impeached Gibbs because in the undisclosed
handwritten statement, Gibbs described the Petitioner as “possibly Hispanic” with a bald
head and sideburns. While impeachment evidence can serve as a basis for coram nobis
relief, the Petitioner has not established that this evidence alone might have led to a
different outcome. See Vasques, 221 S.W.3d at 527. In his brief, the Petitioner admits
that despite Gibbs’ description of the Petitioner, Gibbs was able to identify the Petitioner
at trial. Furthermore, after reviewing Gibbs’ statement, he specifically stated that the
Petitioner “looked white, possibly Hispanic,” therefore; Gibbs description did not provide
strong impeachment evidence. Accordingly, we conclude that the trial court did not
abuse its discretion in denying relief on this ground.

        The Petitioner further argues that Gibbs’ handwritten statement could have been
used to “dispute the chain of custody presented at trial . . . and discredit the prosecution’s
proof of the entire investigation.” In Gibbs’ handwritten statement, Gibbs stated that he
picked up a shell casing and was told by a police officer to put it back where he found it.
During the coram nobis hearing, the Petitioner testified that he did not know that
evidence had been moved at the crime scene until he received Gibbs’ statement.
However, during the hearing, the Petitioner read portions of the trial transcript where
Gibbs testified that he “picked up a live round.” Therefore, trial counsel and the
Petitioner knew that the evidence had been moved at the crime scene and had the
opportunity at trial to further question Gibbs and Detective Anderson. The Petitioner
further insists that Bryant’s statement corroborated the Petitioner’s versions of events at
trial and “would have been valuable to the [P]etitioner’s defense.” Specifically, the
Petitioner argues that Bryant’s statement is exculpatory because it “corroborates [the
Petitioner’s] defense that the shots were not fired at the victim and that the shooting was
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not premeditated.” However, Bryant never said that the shooting was an accident or that
the Petitioner was fleeing when he fired the second shot. Rather, his statement said that
the Petitioner fired two shots at the ground in front of the victim and then left the scene.
There is nothing in Bryant’s statement that establishes that the shooting was an accident
or that corroborates the Petitioner’s version of events. Therefore, the Petitioner has failed
to prove that Gibbs or Bryant’s statement, if introduced at his second trial, “may have led
to a different result.” Vasques, 221 S.W.3d at 527. The Petitioner is not entitled to relief.

       (4) Open File Policy. The Petitioner argues in his reply brief that the coram nobis
court made an erroneous assessment of the State’s open file policy. During the hearing,
the coram nobis court stated that based on his experience “as an attorney practicing in
this district[,]” the District Attorney’s Office had an open file discovery policy. The
Petitioner argues that the coram nobis court relied on “his own knowledge” and
“essentially [took] judicial notice of the open file policy.” While we do not condone the
coram nobis court commenting on his personal experience as an attorney during the
hearing, the record shows that ADA Young and Detective Anderson testified that, at the
time of the Petitioner’s trial, there was an open file discovery policy at the District
Attorney’s Office. The court accredited their testimony, and we will not disturb this
finding. Moreover, the Petitioner failed to provide any evidence other than his belief that
the statements were withheld by the State. As we have already established, the two
witness statements were wholly immaterial; thus, the coram nobis court did not abuse its
discretion in denying relief.

                                     CONCLUSION

       Based on the aforementioned reasoning and authorities, we affirm the judgment of
the coram nobis court.

                                                    _____________________________
                                                    CAMILLE R. McMULLEN, JUDGE




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