         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs August 5, 2008

                       JON HALL v. STATE OF TENNESSEE
                       Appeal from the Circuit Court for Madison County
                          No. C07-354 Roy B. Morgan, Jr., Judge



                      No. W2007-02656-CCA-R3-PD - Filed June 5, 2009



The petitioner, Jon Hall, appeals the Madison County Circuit Court’s summary dismissal of his
petition for writ of error coram nobis. In the petition, the petitioner primarily argued that his petition
to reopen his post-conviction petition was improperly dismissed and that he never consented to a
change of venue at trial. The coram nobis court dismissed the petition as untimely and for failure
to state a cognizable claim for coram nobis relief. On appeal, the petitioner argues that the coram
nobis petition was improperly dismissed, as it did state a cognizable claim for relief and because due
process concerns necessitated tolling the one-year statute of limitations. After reviewing the record,
we affirm the judgment of the coram nobis court.


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


D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL and
NORMA MCGEE OGLE , JJ., joined.

Jon Hall, Nashville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; James E. Gaylord, Assistant Attorney
General; James G. Woodall, District Attorney General; and Alfred L. Earls, Assistant District
Attorney General, for the appellee, State of Tennessee.


                                               OPINION

       The record reflects that in 1997, a Madison County Jury convicted the petitioner of the first
degree murder of his wife, Billie Jo Hall, and sentenced him to death. The petitioner’s conviction
and sentence were affirmed on direct appeal. State v. Hall, 8 S.W.3d 593 (Tenn. 1999). In
December 2000, the petitioner filed a petition for post-conviction relief. Jon Hall v. State, No.
W2003-00669-CCA-R3-PD, 2005 WL 22951, at *1 (Tenn. Crim. App. Jan. 5, 2005). This court
affirmed the post-conviction court’s denial of the petition, Id. at *38, and on June 20, 2005, the
Tennessee Supreme Court denied his application for permission to appeal in the post-conviction
case. In October 2003, the petitioner filed a petition for writ of habeas corpus. Jon Douglas Hall
v. State/Ricky Bell, Warden, No. M2005-00572-CCA-R3-HC, 2006 WL 2000502, at *1 (Tenn.
Crim. App. July 19, 2006). In that petition, the petitioner alleged that he never consented to the
change of venue which moved his trial from Henderson County, where the offense occurred, to
Madison County, and as such, the Madison County Circuit Court’s judgment of conviction was void
for lack of jurisdiction. Id. This court affirmed the habeas corpus court’s denial of the petition,
stating in relevant part that “the petitioner filed two motions seeking a change of venue . . . . The
state apparently consented to the second of these motions . . . . While the petitioner now claims that
his trial counsel did not have his permission to file the second motion, that is not a cognizable claim
for habeas corpus relief.” Id. at *2 (citations omitted).1 On November 27, 2006, the Tennessee
Supreme Court denied the petitioner’s application for permission to appeal.

        On June 19, 2006, the petitioner filed a motion to reopen his post-conviction petition. In his
motion, the petitioner “raised numerous complaints concerning the conduct of all attorneys and
judges involved. [He] again challenged the propriety of his trial being conducted in Madison County.
. . . Additional complaints raised by Petitioner Hall included allegations that the State withheld
exculpatory evidence.” Jon Hall v. State, No. W2006-02620-CCA-R28-PD, slip op. at 1 (Tenn.
Crim. App. Feb. 2, 2007) (order). The post-conviction court denied the motion; in its order, the post-
conviction court stated that it could not “find any allegations of any case law that would establish
a new constitutional right that would entitle the [petitioner] to a new trial or hearing,” and that
neither “[a]llegations of misconduct by the [c]ourt or State” nor “[a]llegations of insufficient fact
finding procedures by the State” were grounds for reopening his post-conviction petition. The
petitioner appealed the post-conviction court’s order, but this court dismissed the appeal based on
the fact that the petitioner filed the appeal after the ten-day limitations period established by Rule
28 of the Tennessee Supreme Court. Id., slip op. at 3. We also noted that “even had the application
been timely filed, a review of the petition reveals that the [p]etitioner has failed to allege a ground
upon which such petition may be granted.” Id.

        October 26, 2007, the petitioner filed a petition for writ of error coram nobis or, in the
alternative, a motion to set aside judgment pursuant to Rule 60 of the Tennessee Rules of Civil
Procedure. In this motion, the petitioner argued that circumstances beyond his control prevented him
from timely filing his appeal of the post-conviction court’s order denying his motion to reopen the
post-conviction petition. Particularly, the petitioner argued that the post-conviction court’s failure
to appoint counsel for his motion to reopen, coupled with the circuit court clerk’s failure to inform
him of the denial of the motion to reopen until after the ten-day limitations period passed, constituted
“circumstances beyond his control.” The petitioner also renewed his argument that appellate and
post-conviction counsel were ineffective for failing to actively pursue the change of venue issue, and
he also argued that the change of venue—to which he again insisted that he did not agree—resulted

         1
           Of note, the petitioner did not challenge the change of venue motion on direct appeal. The petitioner raised
the issue in his initial petition for post-conviction relief, but in its order denying the petitioner’s initial post-conviction
petition, the post-conviction court noted the issue was waived by the petitioner’s failure to raise the issue on direct
appeal.

                                                              2
from conspiratorial conduct on the part of his trial counsel, the State, and the trial court.
Furthermore, the petitioner raised several “miscellaneous claims,” including challenges to the
aggravating factor used to justify his death sentence, the jury instructions, crime scene photographs,
death penalty protocol, and to the State’s imprisoning him before executing him, which he argues
constitutes dual punishment and violates his protection against double jeopardy.

        On October 31, 2007, the coram nobis court issued an order dismissing the petition. In its
order, the coram nobis court noted that the petition was untimely and that, even if not time-barred,
the petitioner was not entitled to relief because his petition stated no cognizable claim for relief.
This appeal followed.2

                                                      ANALYSIS

        On appeal, the petitioner argues that the coram nobis court erred by dismissing his petition
for writ of error coram nobis. We disagree.

        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.” Tenn. Code Ann. § 40-26-105 (2006);
see State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995). The decision to grant or deny the
writ rests within the discretion of the trial court. Teague v. State, 772 S.W.2d 915, 921 (Tenn. Crim.
App. 1988). A petition for writ of error coram nobis must be filed within one year of the date the
judgment of the trial court becomes final. See Tenn. Code Ann. §§ 27-7-103, 40-26-105; State v.
Mixon, 983 S.W.2d 671 (Tenn. 1999). The State bears the burden of raising the bar of the statute
of limitations as an affirmative defense. See Harris v. State, 102 S.W.3d 587, 593 (Tenn. 2003)
(citing Sands v. State, 903 S.W.2d 297, 299 (Tenn. 1995)). The one-year limitations period may be
tolled only when required by due process concerns. See Workman v. State, 41 S.W.3d 100, 103
(Tenn. 2001).

         In this case, the trial court entered its judgment of conviction in 1997. The petitioner did not
file his coram nobis petition until October 2007, some nine years after the expiration of the one-year
limitations period for filing a coram nobis action. Thus, the coram nobis court properly concluded
that the petition was untimely. There is no proof in the record of circumstances beyond the
petitioner’s control that prevented his timely filing of his coram nobis action. Therefore, we
conclude that due process concerns do not necessitate tolling the limitations period. Furthermore,
none of the issues raised by the petitioner relate to “subsequently or newly discovered evidence
relating to matters which were litigated at the trial” which “may have resulted in a different
judgment, had [the evidence] been presented at the trial.” Tenn. Code Ann. § 40-26-105. Rather,
the “evidence” cited in the petition relates to matters that occurred long after both his trial and his
direct appeal ended. We therefore conclude that the petitioner’s jurisdiction/venue claim is not
proper for coram nobis relief.

         2
           Apparently, the petitioner filed an additional coram nobis petition, which was also dismissed as untimely and
for failure to state a claim. The petitioner filed a notice of appeal for this second petition. On March 14, 2008, this court
issued an order consolidating the two petitions on appeal.

                                                             3
                                         CONCLUSION

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


                                                     _______________________________
                                                     D. KELLY THOMAS, JR., JUDGE




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