        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                        Assigned on Briefs September 10, 2013

                    DEAN HEATH v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                         No. 10-02252   Mark Ward, Judge


               No. W2013-00181-CCA-R3-CO - Filed January 27, 2014


Petitioner, Dean Heath, filed a petition for writ of error coram nobis concerning his
convictions in the Shelby County Criminal Court for first degree murder with a sentence of
life imprisonment and for especially aggravated robbery with a sentence of 25 years to be
served concurrently with the life sentence. The petition was dismissed without an evidentiary
hearing, and Petitioner appeals. We affirm the judgment of the trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R. and D. K ELLY T HOMAS, J R., JJ., joined.

Dean Heath, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Ray Lepone, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

        In his coram nobis petition, Petitioner asserts that he is mentally disabled with an
intelligence quotient (I.Q.) of 67 or 68. He asserts that after the convictions he discovered
“new evidence” that was “not known” by Petitioner at trial. He repeatedly alleges in his
petition that the previously “unknown evidence” is the content of Tennessee Code Annotated
section 39-13-203, more specifically subsection (b) thereof which states:

        (b) Notwithstanding any provision of law to the contrary, no defendant with
        intellectual disability at the time of first degree murder shall be sentenced
        to death. (emphasis added)
Tennessee Code Annotated section 39-13-203(a) defines “intellectual disability” as:

 (1)    Significantly subaverage general intellectual functioning as
        evidenced by a functional intelligence quotient (I.Q.) of seventy (70)
        or below;

 (2)    Deficits in adaptive behavior; and

 (3)    The intellectual disability must have been manifested during the
        development period, or by eighteen (18) years of age.

Among the assertions in his petition for coram nobis relief are the following:

 (1)    “The evidence is not sufficient to support the convictions because
        [Petitioner] was [intellectually disabled] as defined in T.C.A. § 39-
        13-203(a).”

 (2)    “Due to the violation of the statutes, the judgment [should] be set
        aside and the petitioner [should] be granted a new trial because the
        discovery of T.C.A. § 39-13-203, is a substantial factual error not
        appearing in the record. . .” (emphasis added)

 (3)    “The statute new evidence [sic], if presented to the jury, ‘may have’
        resulted in a different outcome because petitioner was not ‘well-
        aware’ of the statute prior to trial and that’s [sic] ‘new law.’”

 (4)    “The verdicts [were] not render[ed] with ‘absolute fairness’ and
        impartiality as justice and truth dictate because the ‘jury’ was not
        well-aware [sic] of T.C.A. § 39-13-203, new evidence regarding
        petitioner[’s] intellectual disability.”

In its order dismissing the coram nobis petition the trial court stated,

        The Petition is dismissed without an evidentiary hearing for the
 following reason[ ]: [ ] The petition does not allege any “newly discovered
 evidence.” There is no evidence that has been “newly discovered” and
 becoming aware of a statute that has no application in a non-death penalty
 case has no bearing on this matter.



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                IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED
        that the Petition for Writ of Error Cram Nobis is hereby denied.

Analysis

       First, we note that Petitioner is relying upon language in a statute, Tennessee Code
Annotated section 39-13-203, which applies only to imposition of the death penalty and has
nothing to do with Petitioner’s convictions. For that reason alone the trial court’s judgment
can be affirmed. Furthermore, “discovery” by a defendant of a statute he was not aware
existed at the time of his trial is not a valid basis for coram nobis relief. The procedure and
requirements for obtaining coram nobis relief are set forth in Tennessee Code Annotated
section 40-25-105(a) and (b) as follows:

        § 40-26-105. Writ of error coram nobis.

        (a) There is made available to convicted defendants in criminal cases a
        proceeding in the nature of a writ of error coram nobis, to be governed by
        the same rules and procedure applicable to the writ of error coram nobis in
        civil cases, except insofar as inconsistent herewith. Notice of the suing out
        of the writ shall be served on the district attorney general. No judge shall
        have authority to order the writ to operate as a supersedeas. The court shall
        have authority to order the person having custody of the petitioner to
        produce the petitioner in court for the hearing of the proceeding.

        (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 a 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.

       Petitioner’s claimed late discovery of Tennessee Code Annotated section 39-13-203,
even if its provisions were applicable to his case, is not newly discovered evidence as
contemplated by the statute authorizing coram nobis relief. See Philander Butler v. State,
No. W2012-01512-CCA-R3-CO, 2013 WL 1282313, at *5 (Tenn. Crim. App. March 28,



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2013) (“This court has held that a petitioner’s own fresh understanding of the law is not
newly discovered evidence in this context.”).

      The trial court did not err by dismissing the petition for coram nobis relief.
Accordingly, the judgment of the trial court is affirmed.

                                                 _________________________________
                                                 THOMAS T. WOODALL, JUDGE




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