            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASVILLE
                    Assigned on Briefs at Knoxville October 14, 2015

             JAMES ANTHONY BURGESS v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Putnam County
                       No. 07-0676    David A. Patterson, Judge




               No. M2015-00584-CCA-R3-ECN – Filed November 19, 2015
                            _____________________________

Petitioner, James Anthony Burgess, appeals the denial of his petition for writ of error
coram nobis. Because Petitioner has not identified any newly discovered evidence, we
affirm the decision of the coram nobis court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which JAMES CURWOOD
WITT, JR. and ROBERT H. MONTGOMERY, JR., JJ., joined.

James Anthony Burgess, Pikeville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Bryant C. Dunaway, District Attorney General; and Beth Willis, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                         Procedural History

        Over eight and one-half years ago, Petitioner invaded his former home and killed
his estranged wife by shooting her nine times. Then, as two children watched, Petitioner
killed his wife‟s boyfriend by shooting him five times. Petitioner was convicted of two
counts of felony murder, two counts of second degree murder, aggravated burglary, 1 and

        1
         Petitioner was convicted of especially aggravated burglary, but on direct appeal a panel of this
Court remanded that conviction for modification and resentencing. State v. James Anthony Burgess, No.
M2009-00897-CCA-R3-CD, 2010 WL 3025524, at *7-8 (Tenn. Crim. App. Aug. 4, 2010), perm. app.
denied (Tenn. Dec. 7, 2010).
reckless endangerment. State v. James Anthony Burgess, No. M2009-00897-CCA-R3-
CD, 2010 WL 3025524, at *1-2 (Tenn. Crim. App. Aug. 4, 2010), perm. app. denied
(Tenn. Dec. 7, 2010). He is now effectively serving two consecutive life sentences plus
additional time. James Anthony Burgess v. State, No. M2012-01308-CCA-R3-PC, 2013
WL 1182990, at *1 (Tenn. Crim. App. Mar. 21, 2013) (upholding denial of post-
conviction relief), perm. app. dismissed (Tenn. Sept. 11, 2013).

       Petitioner killed the victims inside the marital home. James Anthony Burgess,
2010 WL 3025524, at *2. At the time of the crimes, Petitioner‟s wife was living in the
marital home, but Petitioner was not. Id. at *1. On direct appeal, this Court considered
whether there was a valid order of protection effective at the time Petitioner committed
the crimes because, if there was not a valid order of protection, Petitioner could not have
burglarized his own home as a matter of law. Id. at *4; see T.C.A. §§ 39-14-401 to -403.
This Court provided the following relevant facts:

      The victim obtained an ex parte order of protection on February 22, 2008.
      As pointed out by the State, Appellant did sign the order when he was
      given notice of the entry of the order. The ex parte order was extended on
      March 26, 2007. The second ex parte order set a hearing date for April 5,
      2007. The hearing was not actually held until April 20, 2007. According
      to Appellant he was present at the hearing. The trial court modified the
      order of protection only to the extent that Appellant and the victim should
      have contact to set visitation. Outside of setting visitation, the order of
      protection was still in effect. In addition, the trial court stated that
      Appellant should have visitation [. . .] two days each week. The trial court
      also ordered the payment of temporary child support. The first payment
      was ordered to be paid on May 1, 2007. The order setting out this
      information was actually filed on May 7, 2007, two days after the murders.

James Anthony Burgess, 2010 WL 3025524, at *4. Concluding that the trial court
intended the May 7 order to be effective as of May 1, 2007, this Court held that there was
a valid order of protection restraining Petitioner from the marital home at the time he
committed the murders and upheld the conviction for aggravated burglary. Id. at *4-6.
Petitioner‟s convictions were affirmed as modified on direct appeal. James Anthony
Burgess, 2010 WL 3025524.

       Petitioner then filed a petition for writ of error coram nobis, claiming that a
warranty deed showed he was a legal owner of the marital home and that there was not a
valid order of protection in effect at the time of the murders. James A. Burgess v. State,
No. M2010-01517-CCA-R3-CO, 2011 WL 320903, at *1 (Tenn. Crim. App. Jan. 20,
2011), perm. app. denied (Tenn. Apr. 14, 2011). This Court affirmed the denial of coram
nobis relief, concluding that the warranty deed did not constitute newly discovered
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evidence and observing that, “on direct appeal, this Court thoroughly addressed the
Petitioner‟s claim that he was not excluded as an „owner‟ of the home under the burglary
statute.” Id. at *4-5.

       Petitioner then filed a petition for post-conviction relief, arguing that his trial
counsel provided ineffective assistance by failing to object to “false evidence” in regard
to the order of protection. James Anthony Burgess, 2013 WL 1182990. In affirming the
denial of post-conviction relief, we observed, “While [A]ppellant has previously called
into question the status of the order of protection, this Court extensively reviewed these
issues on direct appeal and found in the [S]tate‟s favor.” Id. at *5.

        On January 29, 2015, Petitioner filed another petition for writ of error coram
nobis, again challenging his aggravated burglary conviction on the basis that there was
not a valid order of protection. He claimed that a letter he received on March 17, 2014,
from an attorney—which states that “there appears to be no Temporary nor Permanent
Protection order in the file, my assumption is that your wife attempted to obtain one of
those orders but was unsuccessful; or in the case of a permanent order, never brought you
before the Court to obtain that”—constitutes newly discovered evidence which bears
upon his aggravated burglary conviction. The coram nobis court quite sensibly denied
relief.

                                          Analysis

       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(b); State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995).
The writ of error coram nobis is “an extraordinary procedural remedy,” designed to fill
“only a slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672
(Tenn. 1999) (emphasis in original). In order to seek coram nobis relief, a petitioner must
“establish[] that the petitioner 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). To be considered
“without fault,” the petitioner must 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. at 526.

      A petition for coram nobis relief must be filed within one year after the judgment
becomes final. T.C.A. § 27-7-103. For the purposes of coram nobis relief, a judgment
becomes final 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.
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Mixon, 983 S.W.2d at 670. Whether a claim is barred by an applicable statute of
limitations is a question of law, which we review de novo. Harris v. State, 301 S.W.3d
141, 144 (Tenn. 2010) (citing Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 921
(Tenn. 2007)). However, the State bears the burden of raising the statute of limitations as
an affirmative defense. Id.; Sands v. State, 903 S.W.2d 297, 299 (Tenn. 1995). Because
the State did not raise the statute of limitations as an affirmative defense, we must
consider the merits of the petition.

       After reviewing the record, we conclude that the coram nobis court did not abuse
its discretion by denying relief without a hearing. The correspondence offered by
Petitioner does not constitute newly discovered evidence for coram nobis purposes. It is
simply a hearsay opinion about Petitioner‟s case. Petitioner‟s claim that there was not a
valid order of protection in place at the time he committed these murders has been
previously adjudicated, and we will not revisit it now, just as we have so declined on two
previous occasions. Strangely enough, Petitioner‟s petition contains a copy of the May 7,
2007 order which this Court construed as a valid order of protection on direct appeal. It
is unclear whether this order was attached to the letter offered by Petitioner. Nonetheless,
whatever the basis for the correspondence received by Petitioner, it does not undermine
the previous determinations made by this Court and offers nothing new.

       Petitioner is not entitled to relief.


                                                     _________________________________
                                                     TIMOTHY L. EASTER, JUDGE




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