        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               February 19, 2015 Session

                TERRY LYNN KING v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Knox County
                     No. 101842     Mary Beth Leibowitz, Judge


                 No. E2014-01202-CCA-R3-ECN - Filed May 28, 2015


The Petitioner, Terry Lynn King, appeals the Knox County Criminal Court’s denial of his
petition for a writ of error coram nobis regarding his convictions for felony murder, for
which he was sentenced to death, and for armed robbery, for which he is serving 125 years.
The coram nobis court dismissed the petition because it was untimely and because due
process did not require tolling the one-year statute of limitations. On appeal, the Petitioner
contends that the court erred by dismissing the petition. We affirm the judgment of the
coram nobis court.

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

R OBERT H. M ONTGOMERY, J R., J., delivered the opinion of the court, in which N ORMA
M CG EE O GLE and D. K ELLY T HOMAS, J R., JJ., joined.

Stephen Ross Johnson (on appeal and at hearing), Ashlee Brooke Mathis and Richard C.
Stooksbury III (on appeal), Student Attorneys of the University of Tennessee College of Law
Innocence and Wrongful Convictions Clinic, and Wade V. Davies (at hearing), Knoxville,
Tennessee, for the appellant, Terry Lynn King.

Herbert H. Slatery III, Attorney General and Reporter; Andree S. Blumstein, Solicitor
General; John H. Bledsoe, Senior Counsel; Randall E. Nichols, District Attorney General;
and Deshea Dulaney Faughn, Assistant District Attorney General by appointment, for the
appellee, State of Tennessee.

                                         OPINION

       This case relates to the 1983 killing of Diana K. Smith. The Tennessee Supreme
Court summarized the facts of the case in the appeal of the Petitioner’s convictions:
       Mrs. Smith left her home on Sunday afternoon, July 31, 1983, to go to
a nearby McDonald’s to get food for her family. Her automobile, a 1979
Camaro, was found on August 4, 1983, off the road in a heavily wooded area
near Blaine, Tennessee.

        On August 6, 1983, Mrs. Donna Allen went to the Asbury quarry in
Knox County to swim. She noticed a strange odor coming from a yellow
tarpaulin in the water near the bank, and reported the circumstance to the
sheriff’s office. On following-up Mrs. Allen’s report, officers found the body
of a white female in an advanced state of decomposition. The body was later
identified as being that of Mrs. Smith. Death was from one or more shots fired
into the back of Mrs. Smith’s head from a high-powered weapon.

       In the course of the police investigation, the attention of the officers
was focused on Terry King and Randall Sexton when Jerry Childers, an
acquaintance of King, reported a conversation he had had with King and what
he had found when he followed up on the conversation.

       Jerry Childers testified that Terry King came to his house on the
afternoon of Monday, August 1, 1983, and inquired as to whether Childers
knew anyone that wanted to buy parts from a 1979 Camaro. According to
Childers, King told Childers he had killed the woman who owned the
automobile after she threatened to charge defendant with rape. According to
Childers, defendant said he made the woman get out of the car trunk where he
had confined her and lie face down on the ground, that the woman faced the
defendant and begged him not to shoot her and offered money, and that he
ordered her to turn her head away from him. When she did, he shot her in the
back of the head. Defendant also told Childers he took forty dollars from the
woman as well as taking her automobile.

        The following Friday, which was August 5, 1983, Childers related
defendant’s story to Mr. Buford Watson. On Sunday, Childers went to the
location defendant had described as the place of the killing and found
something with hair on it. Childers then gave the information he had to
Detective Herman Johnson of the Knox County Sheriff's Department and
T.B.I. agent, David Davenport. In following up the report, the officers met
Childers near Richland Creek and searched the area, finding pieces of bone,
hair, and bloodstains. A later more thorough search turned up bullet fragments
and additional bone fragments.



                                      -2-
        In the course of the police investigation, defendant and co-defendant,
Sexton, were interviewed by the officers. Both gave written statements
detailing the events of the night of July 31, 1983. Neither defendant testified
in the guilt phase of the trial, but their statements were introduced in evidence.
Both defendants testified in the sentencing phase of the trial and repeated in
substance the facts set forth in the statements given the police officers in their
statements.

        The statements of King and Sexton were markedly similar for the time
the two men were together. King’s statement was the more comprehensive
since it covered the entire period of time he was with Mrs. Smith. According
to defendant, he and his cousin, Don King, picked up Mrs. Smith at the
Cherokee Dam on Sunday, July 31, 1983. Defendant drove Mrs. Smith in her
automobile to the nearby house trailer of his cousin, arriving there around 7:00
p.m. Don King drove his own automobile to the trailer. Shortly after arriving
at the trailer, defendant called Eugene Thornhill who came to the trailer and
left with defendant to obtain LSD and quaaludes. Defendant said he and Mrs.
Smith took the drugs. Thereafter, defendant, Don King, and Eugene Thornhill
had sex with Mrs. Smith.

        After staying at the trailer for several hours, defendant and Mrs. Smith
left in her automobile, with defendant driving. They went to a wooded area,
where they again had sex. From there, they went to a service station for gas.
Mrs. Smith got out of the automobile and grabbed the keys. Defendant told
her to get back in the automobile and she did so. The defendant drove Mrs.
Smith back to the wooded area, where they again had sex and the defendant
took forty dollars from Mrs. Smith. According to defendant, Mrs. Smith then
asked “why did you all rape me?” Defendant stated that he knew then what he
was going to do. He told Mrs. Smith to get into the trunk of the automobile.
When she did, defendant drove to Sexton’s house and told Sexton he had a
woman in the trunk of the automobile and needed Sexton’s help. Defendant
got a rifle from Sexton and also a shovel. Defendant and Sexton then left the
Sexton home in separate automobiles. After making a stop at a Publix station
to purchase gas, defendant and Sexton drove to a wooded area near Richland
Creek in Knox County. Defendant drove the 1979 Camaro off the road and
became stuck. He then made Mrs. Smith get out of the automobile trunk and
pointed the loaded rifle at her. Defendant made Mrs. Smith lie down on the
ground, assuring her that he was not going to kill her, that others were coming
to have sex with her. Sexton left in his automobile to return a funnel to the gas
station. While he was gone, defendant shot Mrs. Smith in the back of the

                                       -3-
head. On Sexton’s return, and after getting the Camaro unstuck, the two went
through Mrs. Smith’s effects, burning her identification. They then attempted
to bury the body, but gave up because of the hardness of the ground. The next
morning, defendant and Sexton wrapped Mrs. Smith’s body in a tent, weighted
it with cinder blocks and dumped it in the Asburn quarry. Mrs. Smith’s
automobile was hidden near Sexton’s house.

        Agent Davenport testified that after making his statement, the defendant
took him and other officers to the place where the Camaro was hidden and
defendant also showed them where he had hidden the automobile license plate
in a hollow tree. The defendant also showed the officers where he had placed
the body in the quarry and where the shooting occurred.

        Tommy Heflin, a firearms examiner for the Tennessee Bureau of
Investigation [(TBI)], testified that he had examined the .30 Marlin rifle
belonging to Sexton, the metal bullet jacket, and fragments recovered from the
scene of the killing. According to Mr. Heflin, the intact metal jacket had been
fired from Sexton’s rifle and the fragments were fired from a rifle with the
same rifling characteristics as Sexton’s rifle. Mr. Heflin was of the opinion
that at least two bullets had been fired.

       Dr. Joseph Parker, who performed an autopsy on the body of Mrs.
Smith, testified that death was due to an extensive head injury consistent with
gunshot wounds from a high-powered rifle.

        Over objection, the State also presented evidence through Lori Eastman
Carter that defendant had attempted to kill her on October 13, 1982.
According to Mrs. Carter, King hit her with a slapstick numerous times, while
repeatedly asking her “how it felt to be dying, so that the next woman he killed
he would know how she felt.” Mrs. Carter testified that she lost
consciousness. When she came to, she was still in her automobile with her
hair rolled up in the window. She further testified that she heard defendant tell
his cousin that he had killed her and wanted James King to help him put her
in a quarry and burn her automobile.

      James King disputed Mrs. Carter’s version of events, saying that
defendant came to King’s home to get him to follow defendant to St. Mary’s
Hospital as Mrs. Carter was ill and needed treatment.




                                       -4-
              Karen Greeg, Lori Carter’s sister, testified that Mrs. Carter [cannot] be
       believed, even under oath.


State v. King, 718 S.W.2d 241, 243-45 (Tenn. 1986). The Petitioner sought post-conviction
relief on multiple grounds, including the ineffective assistance of counsel. The post-
conviction court denied relief, and this court and the supreme court affirmed. See King v.
State, 989 S.W.2d 319 (Tenn. 1999).

        The Petitioner also sought habeas corpus relief in the United States District Court for
the Eastern District of Tennessee. See Terry Lynn King v. Ricky Bell, Warden, No. 3:99-cv-
454, 2011 WL 3566843 (E.D. Tenn. Aug. 12, 2011) (order). The relevant issue raised in his
habeas corpus petition surrounded an allegation that the State “withheld exculpatory,
mitigating, and/or impeachment evidence” in violation of Brady v. Maryland, 373 U.S. 83
(1963). Id. at *32. During the federal habeas corpus proceedings, subpoenas duces tecum
were issued, and as a result, in 2000, the Petitioner’s counsel discovered certain evidence
possessed by the State at the time of the trial but unknown to the Petitioner’s trial and post-
conviction counsel. Consequently, the Petitioner asserted that the State withheld evidence
showing that only one gunshot was “associated with . . . [the] murder.” Id. at *33. He
alleged that “records recently obtained . . . from the TBI reveal[ed] that only one bullet was
found at the crime scene and that Ms. Smith was shot one time.” Id. The district court stated
that it “appear[ed] from the record that there was some confusion as to whether the bullet
fragment was recovered from the site where . . . Millard’s1 body was found or where Ms.
Smith was killed.” Id. The Petitioner argued the confusion stemmed from finding one metal
object where Ms. Smith was killed and two at Mr. Millard’s grave site, which were submitted
to the TBI for analysis. Id. The court concluded that the Petitioner failed to show the State
withheld evidence or deliberately presented false evidence and that because overwhelming
evidence existed of the Petitioner’s guilt, including his confession, any alleged violation was
immaterial. Id. at *34. The Petitioner also alleged that relative to Ms. Carter, the State
withheld photographs and hospital records that would have impeached her testimony
regarding the Petitioner’s beating her until she was unconscious. The court, though,
concluded that the Petitioner had not established a Brady violation because the evidence
nonetheless showed Ms. Carter was assaulted and received medical treatment for her injuries.
Id. at *34-35.

        After the district court denied habeas corpus relief, the Petitioner filed a motion to
alter or amend the district court’s memorandum and judgment order, in relevant part, with


       1
       The Petitioner was also convicted of the first degree murder and aggravated kidnapping of
Todd Lee Millard after law enforcement questioned the Petitioner regarding Ms. Smith’s death.

                                              -5-
respect to the Brady claims, and he also filed a motion for status. The court denied the
motions after finding that they were attempts to “re-argue the points previously considered.”
Terry Lynn King v. Ricky Bell, Warden, No. 3:99-cv-454 (E.D. Tenn. Sept. 25, 2013)
(memorandum and order). The record reflects that although the court declined to certify any
of the Petitioner’s claims for review by the Sixth Circuit Court of Appeals, an October 28,
2014 order shows that the appellate court granted a certificate of appealability relative to his
ineffective assistance of counsel allegations. See Terry Lynn King v. Wayne Carpenter,
Warden, No. 13-6387 (6th Cir. Oct. 28, 2014) (order). The Petitioner’s appeal is currently
pending before the Sixth Circuit Court of Appeals.

         On June 25, 2013, the Petitioner filed the present petition for a writ of error coram
nobis relying on the evidence discovered in 2000 during the federal habeas corpus
proceedings. He stated in his petition that the State relied on two theories of the case at the
trial: (1) the Petitioner subjected Ms. Smith to cruelty by shooting her multiple times in the
head and (2) the Petitioner severely assaulted Ms. Carter and made statements to Ms. Carter
explaining Ms. Smith’s murder. He argued that newly discovered TBI reports showed the
victim was shot only once and that newly discovered medical records and photographs
showed Ms. Carter did not have the extensive injuries she described at the trial. Further, he
argued that without the TBI reports, the prosecution deprived him of the opportunity to
support his intoxication defense and to rebut the prosecution’s theory of the case. Relative
to the medical reports and photographs, he claimed he was deprived of the opportunity to
cross-examine and effectively impeach Ms. Carter’s critical testimony.

        On September 16, 2013, the Petitioner filed a request for discovery, inspection, and
notice of intent to use evidence. The State responded on September 23, by filing a motion
to dismiss the petition as untimely pursuant to Tennessee Code Annotated section 27-7-103,
noting that the relevant evidence was obtained in 2000 and that the petition was filed in 2013.
The Petitioner opposed the motion and claimed due process required tolling the statute of
limitations. He later filed a motion to compel discovery.

       At the May 14, 2014 motion hearing, the coram nobis court heard argument from
defense counsel and the State. Counsel stated that the federal habeas corpus proceedings in
2000 permitted limited discovery. Counsel received records that were never disclosed to trial
or post-conviction counsel. Affidavits from trial and post-conviction counsel reflecting the
State’s failure to provide these records were submitted to the court. Counsel stated that he
was told the records were considered confidential and not provided before the trial for policy
reasons. He requested additional discovery pursuant to Tennessee Criminal Procedure Rule
16 but suggested issuing subpoenas for the “law enforcement and other files in this case,”
placing the files under seal, and permitting the court to perform an in camera review.



                                              -6-
        Relative to the TBI reports showing that the victim was only shot once, defense
counsel argued that the information was material to the defense because the State presented
proof that the Petitioner shot the victim more than once to establish the culpable mental states
for the offenses and to negate his intoxication defense. Relative to the medical reports and
photographs of Ms. Carter, counsel argued that the information was material because Ms.
Carter’s testimony was used to show the Defendant possessed the required mental states for
the offenses and the reason for the killing. Counsel argued the information was critical to
Ms. Carter’s cross-examination and to supporting the intoxication defense.

        Relative to the State’s motion to dismiss for the untimeliness of the petition, defense
counsel did not dispute that the statute of limitations had expired and that the relevant
evidence was discovered in 2000 during the federal habeas corpus proceedings. Counsel
argued that the Petitioner was entitled to due process tolling of the statute of limitations
because the State did not “have clean hands.” He argued that the relevant information was
not provided during the trial and post-conviction proceedings, although the State possessed
the information before the trial. Counsel said that after the TBI reports, the medical records,
and the photographs were discovered in 2000, the federal district court did not enter an order
resolving the habeas corpus petition for an additional twelve years. Upon entry of the district
court’s ruling, the Petitioner filed a motion to alter or amend, and the district court entered
its order denying the motion in 2013. Counsel noted the matter was pending before the Sixth
Circuit Court of Appeals.

        The coram nobis court found that the judgments became final in 1985 but that the
petition for a writ of error coram nobis was not filed until June 26, 2013, twenty-eight years
after the judgments became final, thirteen years after the discovery of the evidence during
the federal habeas corpus proceedings, and almost two years after the federal district court
denied relief. The court found that the Petitioner took no action in the Tennessee courts
when he discovered the information during the federal proceedings. The court noted the
Petitioner had possessed the TBI reports, medical records, and photographs for
approximately eleven years at the time the district court denied relief. The court found that
“the time within which the petition was filed exceeds the reasonable opportunity afforded by
due process.” The court explained that the thirteen-year delay from the discovery of the
evidence and the twenty-two month delay after the district court denied relief were
encompassed in its finding that due process did not warrant tolling the statute of limitations.

       On appeal, the Petitioner contends that the coram nobis court erred by summarily
dismissing his petition because due process requires tolling the statute of limitations. The
State responds that the court properly dismissed the petition. We agree with the State.




                                              -7-
        A writ of error coram nobis lies “for subsequently or newly discovered evidence
relating to matters which were not 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) (2012); State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995);
see Cole v. State, 589 S.W.2d 941 (Tenn. Crim. App. 1979). The purpose of a coram nobis
proceeding “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 ex rel. Carlson v. State, 407
S.W.2d 165, 167 (Tenn. 1966). The decision to grant or deny such a writ rests within the
sound discretion of the court. Jones v. State, 519 S.W.2d 398, 400 (Tenn. Crim. App. 1974);
see Teague v. State, 772 S.W.2d 915, 921 (Tenn. Crim. App. 1988). A petition for a writ of
coram nobis must be filed within one year of the judgment becoming final in the trial court.
State v. Mixon, 983 S.W.2d 661, 670 (Tenn. 1999). A judgment becomes final “thirty days
after its entry in the trial court if no post-trial motions are filed or upon entry of an order
disposing of a timely filed, post-trial motion.” Harris v. State, 301 S.W.3d 141, 144 (Tenn.
2010). A limited exception to the statute of limitations exists when due process requires
tolling. Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001).

        “When a petitioner seeks a writ of error coram nobis based on newly discovered
evidence of actual innocence, due process considerations may require tolling of the statute
of limitations.” Harris, 301 S.W.3d at 145 (citing Workman, 41 S.W.3d at 101). “[B]efore
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.” Burford
v. State, 845 S.W.2d 204, 208 (Tenn. 1992); see Workman, 41 S.W.3d at 102. However, a
petitioner “must exercise due diligence in presenting the claim.” Harris, 301 S.W.3d at 144.
Whether due process principles require tolling the statute of limitations is a mixed question
of law and fact and is reviewed de novo with no presumption of correctness. See Vaughn v.
State, 202 S.W.3d 106, 115 (Tenn. 2006).

       The parties do not dispute that the coram nobis petition was filed long after the statute
of limitations expired, and we conclude that the petition was untimely because it was filed
nearly twenty-eight years after the judgments became final. Relative to due process tolling,
the Tennessee Supreme Court has prescribed a three-part analysis whereby the coram nobis
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
       “later-arising,” determine if, under the facts of the case, a strict application of
       the limitations period would effectively deny the petitioner a reasonable

                                               -8-
       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.

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

       The record reflects that the evidence was discovered in 2000 during the federal habeas
corpus proceedings and that the evidence was never provided to trial and post-conviction
counsel. The relevant evidence was clearly discovered by the Petitioner after the trial,
although the parties do not dispute the evidence was in the prosecution’s possession at the
time of the trial. Therefore, our inquiry is limited to whether the delay in filing the coram
nobis petition was reasonable.

       The Petitioner asserted at oral argument that it was not unreasonable to file the coram
nobis petition after the district court resolved the federal habeas corpus petition because of
the then-status of the law. The State conceded at oral argument that the Petitioner might have
been entitled to tolling of the limitations period until 2001 when the procedure governing
coram nobis petitions was clarified by our supreme court in Workman and subsequent cases.
The State further argued any lingering uncertainty after Workman was eliminated by
Freshwater v. State, 160 S.W.3d 548 (Tenn. Crim. App. 2004). The State asserted that the
twelve-year delay after Workman and the nine-year delay after Freshwater prevents due
process tolling of the statute of limitations.

        In Workman, the petitioner filed a petition for a writ of error coram nobis after
discovering evidence related to whether the petitioner fired the fatal shot killing a Memphis
police officer. The relevant evidence was obtained from the Shelby County Medical
Examiner’s Office years after the conclusion of the post-conviction proceedings, and the
delay in obtaining the evidence was not attributable to the petitioner or his counsel. The
coram nobis petition was filed thirteen months after discovery of the new evidence. Our
supreme court concluded that the thirteen-month delay did not preclude tolling the statute of
limitations in which to file the petition because a petitioner must “be afforded a ‘reasonable
opportunity after the expiration of the limitations period to present his claim in a meaningful
time and manner.’” Workman, 41 S.W.3d at 103 (quoting Williams v. State, 44 S.W.3d 464,
471 (Tenn. 2001)). The court concluded that the petitioner’s interest in an evaluation of the
newly discovered evidence that might show actual innocence of capital murder outweighed
the values justifying the statute of limitations. Id. at 103-04.




                                               -9-
         In Freshwater, the petitioner was convicted of first degree murder in 1969 and
sentenced to ninety-nine years’ confinement. The petitioner’s trial counsel sought discovery-
related material concerning written statements of any “informer” from a Mississippi jail who
had contact with the petitioner and her codefendant. Upon the request, only portions of the
relevant witness’s statement were provided to counsel. Omitted from discovery was the
witness’s statement that the codefendant confessed to being the only shooter. In September
2002, the omitted portion of the statement was discovered and formed the basis of the
petitioner’s petition for coram nobis relief, which was filed on February 6, 2003, alleging the
State’s failure to provide the omitted portion of the statement violated Brady v. Maryland.
Although the State argued an alleged Brady violation was inappropriate for coram nobis
relief, this court noted that coram nobis relief is proper “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.” Freshwater,
160 S.W.3d at 555 (internal quotation marks and citation omitted). This court concluded that
the Brady violation alleged by the petitioner was not an issue that could have been raised and
litigated previously because the evidence was not discovered until 2002. Id. at 556.

        In considering whether due process warranted tolling the limitations period in
Freshwater, this court noted that determining what constitutes a reasonable opportunity to
present a claim in a coram nobis petition required an evaluation of “‘the governmental
interests involved and the private interests affected by the official action[.]’” Id. at 556-57
(quoting Workman, 41 S.W.3d at 102). This court noted that similar to Workman, the
petitioner “raised serious questions” relative to whether she murdered the victim and that the
alleged exculpatory evidence was withheld by the State after a specific discovery request.
Id. at 557. This court noted that “‘[t]he State’s finality interest is seriously compromised
when the prosecution has suppressed evidence in violation of its constitutional duty and is
directly responsible for causing the delay in finality.’” Id. at 558 (quoting Harris v. State,
102 S.W.3d 587, 602 (Tenn. 2003) (Anderson, J., dissenting) (citing Sample v. State, 82
S.W.3d 267, 276 (Tenn. 2002)). As a result, this court concluded that due process required
tolling the statute of limitations and that the petitioner was entitled to an evidentiary hearing.
Id.

        Although the status of the law was unclear relative to whether a Brady violation could
serve as a basis for a coram nobis petition before Workman and Freshwater, these cases
established that a coram nobis petition is the proper cause of action in which to raise Brady
violations relative to newly discovered exculpatory evidence possessed by the prosecution
at the time of a trial but never disclosed to the defense. Therefore, by 2004, and arguably as
early as 2001, the Petitioner was on notice that he needed to file his coram nobis petition in
state court relative to the evidence discovered in the federal proceedings. The Petitioner’s
explanation for failing to file the coram nobis petition was fear of creating procedural

                                              -10-
roadblocks in the federal habeas corpus proceedings and losing his right to present the Brady
violation before the district court. Even if his fear was warranted at the time the evidence
was discovered in 2000, our supreme court released Harris, which addressed this issue, in
January 2010, almost three and one-half years before the Petitioner filed his present petition.

         In Harris, the petitioner was convicted of first degree murder in 1988 and sentenced
to life imprisonment. In 1992, he unsuccessfully sought post-conviction relief, in relevant
part, on the basis that the State withheld exculpatory evidence. On December 10, 1998, he
sought to reopen his post-conviction proceedings because the prosecution failed to disclose
the identity of an alibi witness. The petitioner learned of the witness when he received an
anonymous letter in response to an August 1998 newspaper advertisement that sought
information about his case. According to the letter, the witness told an unknown police
officer that a man resembling the petitioner assisted her when she had car trouble on
September 8, 1987. The witness told the officer that she saw nothing suspicious inside the
man’s vehicle. These events occurred at the same time the petitioner allegedly killed the
victim and disposed of her body. The motion to reopen his post-conviction proceedings was
denied. On appeal, this court treated the motion as a petition for error coram nobis relief and
concluded that the petitioner was entitled to an evidentiary hearing. State v. Ricky Harris,
No. E1999-02771-CCA-R28-PC (Tenn. Crim. App. Dec. 4, 2001) (order). Subsequently, a
majority of our supreme court concluded that this court erred by treating the motion as a
petition for error coram nobis relief, and the court affirmed the denial of the motion to reopen
post-conviction proceedings. See Harris, 102 S.W.3d at 588.

        On March 11, 2004, eleven months after the Tennessee Supreme Court’s 2003 opinion
was released, Harris filed a petition for error coram nobis relief, alleging the State withheld
exculpatory evidence related to the alibi witness and to a letter received by the prosecution
in 1991 from someone named Bill, who allegedly confessed to the killing. The letter was
provided to counsel in 1991, but the petitioner argued he did not learn of its exculpatory
nature until a handwriting expert reviewed it in 2002. Likewise, the petitioner claimed he
did not know the exculpatory value of the alibi witness until his private investigator
contacted the witness in 1998. The supreme court stated that even if it were to accept the
petitioner’s reasons for the delay in filing his coram nobis claim, the petitioner “could have
asserted [the] claim as early as 1998 with regard to the alibi evidence and as early as June
2002 with regard to the . . . confession evidence.” Harris, 301 S.W.3d at 146. The court
noted the delays spanned six years and twenty-one months respectively and concluded that
“[n]o statute in Tennessee nor tolling rule developed at common law provides that the time
for filing a cause of action is tolled during the period in which a litigant pursues a related but
independent cause of action.” Id. The court stated that when the petitioner chose to file a
motion to reopen his post-conviction proceedings in 1998, he, likewise, chose not to file a
petition for coram nobis relief. Id. at 146-47. The court distinguished the petitioner’s case

                                              -11-
from the cases in which the limitations period had been tolled by noting that “the opportunity
to assert a coram nobis claim was entirely within [the petitioner’s] control after 1998 with
regard to the alibi evidence and after . . . 2002 with regard to the . . . confession evidence.”
Id. at 147. The court concluded that “[n]othing prevented [the petitioner] from filing a
separate coram nobis action while his motion to reopen was pending.” Id. (citing John Haws
Burrell v. State, No. E1999-02762-CCA-R3-PC, 2001 WL 15792, at *2 (Tenn. Crim. App.
Jan. 8, 2001), perm. app. denied (Tenn. May 21, 2001)). The court concluded that “[t]he
time within which [the petitioner] filed his petition . . . exceed[ed] the reasonable opportunity
afforded by due process” under the circumstances of the case. Id.

        In the present case, the record reflects that the Petitioner learned of the TBI reports,
medical records, and photographs in 2000 during the federal habeas corpus proceedings. In
light of Harris, we conclude that after that time, the opportunity to assert the Petitioner’s
coram nobis claim was entirely within his control. Although the Petitioner was concerned
about whether filing a coram nobis petition in state court might result in forfeiture of his
federal habeas corpus petition, our supreme court stated in 2010, that no statute or rule
provides for the tolling of a limitations period while a petitioner pursues a related but
independent cause of action. Once Harris was released, the Petitioner was on notice that the
federal habeas proceeding did not toll the statute of limitations period for the state action.
The Petitioner waited an additional three and one-half years to file his coram nobis claim.

        We note that two years after the relevant evidence in the present case was discovered,
Palmer v. Carlton, 276 F.3d 777 (6th Cir. 2002), addressed the Petitioner’s concerns about
the impact of filing a state action while federal habeas corpus proceedings are pending.
Although the circuit court denied relief on unrelated grounds, it noted in Palmer that the
United States Supreme Court suggested two procedural avenues in Duncan v. Walker, 533
U.S. 167, 182-83 (2001), to address situations in which a petitioner files a timely federal
habeas corpus petition pursuant to the Antiterrorism and Effective Death Penalty Act of 1996
that remains pending past the limitations period and is dismissed for failure to exhaust claims
in state court. The first option included a stay in the federal proceedings until unexhausted
state claims are resolved. Palmer, 276 F.3d at 780 (citing Duncan, 533 U.S. at 183).
Alternatively, the district courts could “equitably toll the limitations period during the time
that a . . . habeas petition is pending before a dismissal[.]” Palmer, 276 F.3d at 781 (citing
Duncan, 533 U.S. at 183). Ultimately, the circuit court in Palmer concluded that a district
court should grant a thirty-day stay in the federal proceedings to permit a petitioner to raise
and exhaust claims in state court. Id.

        The Petitioner cites Rhines v. Weber, 544 U.S. 269 (2005), to legitimize his fear of
forfeiting the federal habeas corpus claim if he filed a state coram nobis petition. In Rhines,
the petitioner filed a federal habeas corpus petition alleging various constitutional defects.

                                              -12-
Several of the petitioner’s claims had not been exhausted in the state court. As a result, the
petitioner requested that the federal proceedings be stayed in order for the unexhausted
claims to be presented in the state court in an effort to comply with the federal statute of
limitations. The district court granted the request and held the proceedings in abeyance for
sixty days. The United States Supreme Court concluded that the stay and abeyance
procedure “should be available only in limited circumstances.” Id. at 277. The Court further
concluded that “[b]ecause granting a stay effectively excuses a petitioner’s failure to present
his claims first to the state courts, stay and abeyance is only appropriate when the district
court determines there was good cause for the petitioner’s failure to exhaust his claims first
in state court.” Id. The Court stated that “it likely would be an abuse of discretion for a
district court to deny a stay and to dismiss . . . if the petitioner had good cause for his failure
to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that
the petitioner engaged intentionally dilatory litigation tactics.” Id. at 278.

        Unlike the petitioner in Rhines who initially submitted a petition with unexhausted
claims, the Petitioner in the present case was unaware of the newly discovered evidence until
the federal proceedings were well underway. As a result, the Petitioner was not at fault for
not exhausting the issue in state court before the 2000 discovery. Under the standard
delineated by the Supreme Court in Rhines, no evidence shows that a request for a stay and
abeyance of the federal proceedings would have been denied under the circumstances. To
the contrary, the standard suggests that a denial of a request for a stay and abeyance under
the present circumstances would have been an abuse of discretion. See id. In any event, as
a result of Palmer and Rhines, the Petitioner was on notice that he should have requested a
stay and abeyance of the federal habeas proceedings and filed his state coram nobis petition.
We find no authority to suggest the Petitioner’s federal proceedings would have been
prejudiced by following the procedure outlined in Palmer and Rhines. Rhines was released
in May 2005, but the Petitioner chose not to file his coram nobis petition for another eight
years. We note that even if Palmer and Rhines are not definitive of federal law, the
Petitioner filed his coram nobis petition twenty-two months after the federal district court
entered its order denying habeas corpus relief.

        As a result, we conclude that the delay in seeking coram nobis relief was unreasonable
under the circumstances of this case and that due process does not preclude application of
the statute of limitations. The trial court properly found that due process did not require
tolling the one-year statute of limitations and properly dismissed the petition.




                                               -13-
       In consideration of the foregoing and the record as a whole, the judgment of the coram
nobis court is affirmed.




                                           ____________________________________
                                           ROBERT H. MONTGOMERY, JR., JUDGE




                                            -14-
