                                                                                          12/02/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs September 17, 2019

             NATHANIEL P. CARSON v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                    No. 2009-A-260    Mark J. Fishburn, Judge
                     ___________________________________

                           No. M2019-00042-CCA-R3-ECN
                       ___________________________________

The Petitioner, Nathaniel P. Carson, appeals the trial court’s dismissal of his petition for
writ of error coram nobis in which he challenged his 2010 convictions of two counts of
first degree felony murder and two counts of especially aggravated robbery. After a
review of the record and applicable law, we affirm the judgment of the coram nobis
court.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Joseph L. Morrissey, Jr., Nashville, Tennessee, for the appellant, Nathaniel P. Carson.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Glenn Funk, District Attorney General; and Doug Thurman, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                   FACTS AND PROCEDURAL BACKGROUND

                                    Trial Proceedings

      The Petitioner and his co-defendants, Mr. George Cody, Mr. Lavota Churchwell,
Ms. Gennyfer Hutcheson, Mr. Michael Holloway, and Mr. Thomas Reed, were indicted
for two counts of first degree premeditated murder, two counts of first degree felony
murder, two counts of especially aggravated robbery, two counts of identity theft, three
counts of forgery, and two counts of attempted forgery. The indictment later was
amended to charge the Petitioner only with two counts of felony murder and two counts
of especially aggravated robbery the remaining charges were dropped. The Petitioner
was tried separately from his co-defendants, and in 2010, a jury convicted him as
charged. The Petitioner received a life sentence for each of the murder convictions and a
fifteen year sentence for each of the especially aggravated robbery convictions to be
served concurrently. This court affirmed the Petitioner’s convictions in 2012. See State
v. Nathaniel Carson, No. M2010-02419-CCA-R3-CD, 2012 WL 1484188, at *1 (Tenn.
Crim. App. Apr. 27, 2012), perm. app. denied (Tenn. Oct. 1, 2012).

       This appeal stems from the murder of Mr. Pierre Colas and his sister, Ms. Marie
Colas, in 2008. This court summarized the evidence on direct appeal when discussing the
sufficiency of the evidence as follows:

       [T]he evidence shows that George Cody and the [Petitioner] lived in very
       close proximity to each other and the Colas home. About 9:15 p.m. on
       August 26, 2008, Cody entered the Colas house, robbed the victims, and
       shot them. Less than two hours after the shootings, the appellant
       telephoned the La Quinta Inn, where Thomas Reed and Michael Holloway
       were staying. Cody telephoned Reed and spoke with Holloway about using
       some credit cards. When Cody arrived at the La Quinta Inn to pick up
       Holloway and Reed, the [Petitioner] was with him. The four of them went
       to Cody’s house, and the [Petitioner] and Cody talked privately for about
       ten minutes. Then the [Petitioner] left. In the early morning hours of
       August 29, 2008, the police arrested Cody at his home. The [Petitioner]
       telephoned Cody repeatedly and showed up at Cody’s house, trying to find
       out what was happening. The [Petitioner] voluntarily spoke with the police
       on September 2 and denied having any contact with Cody prior to the
       shootings. However, the State introduced the [Petitioner]’s cellular
       telephone records into evidence, showing that the [Petitioner] spoke with
       Cody on numerous occasions in the days and minutes before the shootings.
       He also spoke with the [Petitioner] after the shootings. However, the
       records showed that no telephone calls were made between Cody and the
       [Petitioner] during the time of the shootings. After the [Petitioner]’s arrest,
       he learned Maurice Boyd was giving information to the police about the
       Colas case and conspired with several other jail inmates to kill Boyd.
       According to the [Petitioner]’s cellmate, Gregory Chafos, the [Petitioner]
       acknowledged that he “gave them the credit cards and ... told them what
       had happened.”

Id. at *11.



                                            -2-
         With regard to the attack on Mr. Boyd while in jail, Mr. Lawrence Baker testified
at trial that he overheard the Petitioner and Mr. Lobbins discussing Mr. Boyd cooperating
with law enforcement in the Petitioner’s case and that “something’s got to happen to
[Boyd].” Id. at *7. Mr. Baker testified that on the morning of Mr. Boyd’s attack Mr.
Adkins came into his cell and got him out of bed. Id. Mr. Adkins and Mr. Baker walked
into Mr. Boyd’s cell, and Mr. Adkins and Mr. Boyd started fighting. Id. Mr. Baker
recalled Mr. Lobbins coming into Mr. Boyd’s cell and stabbing him. Id. After the attack
was over, the Petitioner told Mr. Baker that he would put money into Mr. Baker’s
commissary account for his role in attacking Mr. Boyd. Id.

       Mr. Gregory Chafos, the Petitioner’s cellmate testified that the Petitioner had told
him that he and Mr. Cody had been charged with murder. Id. at *8. Mr. Chafos recalled
that Petitioner “mentioned something about credit cards … that they went to use some
credit cards. And I said, so, in other words, after you gave them the credit cards and you
told them what had happened, they still went and used them? And he said, yeah, like
that.” Id. Mr. Chafos also testified about the Petitioner’s involvement in the attack of
Mr. Boyd. Id. Specifically, Mr. Chafos testified that the Petitioner had confronted Mr.
Boyd because the Petitioner believed that Mr. Boyd was “snitching” on him.

        The Petitioner filed a petition seeking post-conviction relief arguing that trial
counsel was ineffective for failing to call a second alibi witness and for failing to request
a bill of particulars. The post-conviction court denied the Petitioner relief, and this court
affirmed the denial of relief on appeal. See Nathaniel Carson v. State, No. M2014-
00422-CCA-R3-CD, 2014 WL 6091520, at *5 (Tenn. Crim. App. Nov. 14, 2014).

                                   Coram Nobis Proceedings

       On September 11, 2015, the Petitioner filed a pro se petition for writ of error
coram nobis, arguing that he was denied exculpatory material in violation of Brady v.
Maryland, 373 U.S. 82 (1963). In particular, the Petitioner alleged that the State failed to
provide incident reports concerning the attempted murder of Mr. Boyd. He claimed that
he never received these reports in discovery and that the reports are exculpatory because
he was not named as being involved. The State responded by arguing that the Petitioner
was not entitled to relief and that his petition was barred by the statute of limitations.
Following the appointment of counsel, the Petitioner filed a pleading in which he also
alleged that the reports constituted newly discovered evidence. The coram nobis court
held an evidentiary hearing during which the Petitioner, trial counsel, and the original
prosecutor testified.

      The Petitioner testified that he filed a request under the Freedom of Information
Act in February or March 2014. In April 2014, he received incident reports from the
                                            -3-
Davidson County Sheriff’s Office relating to the investigation of the attempted murder of
Mr. Boyd. There are three different incident reports written by three different officers
describing the attack on Mr. Boyd. The report prepared by Officer Rodney Kelly stated
that Mr. Boyd informed him that Mr. Adkins, Mr. Lobbins, and Mr. Baker had attacked
him. Officer Steven Crouch’s report stated that Mr. Boyd informed him on the ride to the
hospital that Mr. Adkins and another inmate started hitting him. According to the report,
Mr. Lobbins then came into Mr. Boyd’s cell and stabbed him. Mr. Boyd told Officer
Crouch that he believed he was attacked because he possessed information about Mr.
Lobbins’ case. The third report was written by Officer Michal Garmon describing blood
found on Mr. Baker’s boxer shorts and blood found on Mr. Lobbins’ pants and shirt. The
Petitioner testified that prior to filing his request, he had never received these reports
because they were not included in the original discovery. The Petitioner stated that he
believed these reports proved he was not involved in the attack of Mr. Boyd and
contradicted the evidence presented at trial.

       On cross-examination, the Petitioner acknowledged that he did not file his petition
for writ of error coram nobis within one year of the entry of final judgment. He
explained that he did not have the information from the reports within that time period
and claimed that he could not request public records while his charges involving Mr.
Boyd were pending. The Petitioner admitted that he knew all the inmates who were
involved in the attempted murder of Mr. Boyd because they were all in the same pod.

       Trial counsel testified that the State’s theory of the case was that the Petitioner was
part of a conspiracy to rob the victims. Trial counsel explained that the State introduced
evidence that placed the Petitioner in a car with two of the co-defendants who possessed
some of the victim’s personal property, including a credit card. Trial counsel stated that
the State believed the Petitioner was involved in a conspiracy to silence Mr. Boyd. It was
believed that Mr. Boyd was providing law enforcement with information about Mr.
Churchwell’s and the Petitioner’s involvement in the murders of the victims.

        Trial counsel recalled requesting and receiving discovery from the State. He
testified that he had no knowledge of the incident reports documenting the attempted
murder of Mr. Boyd. Trial counsel stated that if he had these documents at the time of
the hearing regarding the admission of evidence of the attack on Mr. Boyd, he would
have used them. He acknowledged that he did not represent the Petitioner in the case
where he was charged with the attempted murder of Mr. Boyd. On cross-examination,
trial counsel stated that he believed the original prosecutor did not have those documents
because trial counsel believed the prosecutor would have turned the documents over to
trial counsel if the prosecutor had possessed them.



                                            -4-
       The original prosecutor testified that he prosecuted both of the Petitioner’s cases,
the one involving the murders of the victims and the attempted murder of Mr. Boyd. The
original prosecutor stated that he invited trial counsel to review the entire case file, which
would have included documents relevant to the homicide case and the attempted murder
of Mr. Boyd. He explained that they would have had different case numbers but were
stored in the same set of boxes and that trial counsel would have had access to the
information in both case files. The original prosecutor could not recall whether the
reports subject to the coram nobis proceedings were included in the case files.

        On cross-examination, the original prosecutor agreed that a prior inconsistent
statement from Mr. Boyd might have been information that defense counsel would have
utilized. He stated that although a prior inconsistent statement from Mr. Boyd could have
been utilized had Mr. Boyd testified, Mr. Boyd did not testify at trial. In response to the
court’s questioning, the original prosecutor explained that he did not think that the
Petitioner was physically involved in the attack of Mr. Boyd. He explained that he
dismissed the charges related to the attack of Mr. Boyd after the Petitioner had been
convicted and sentenced to life in prison. He stated that he “didn’t feel like going
forward was a good, particularly, a good use in anyone’s time.”

       The coram nobis court denied the petition, finding that the writ for error coram
nobis was filed after the statute of limitations expired and that the Petitioner failed to
show that due process dictated tolling the statute of limitations. It found that the newly
discovered evidence did not “point to [the] Petitioner being innocent of the felony
murders of which he was convicted.” The coram nobis court denied relief “[b]ecause the
evidence [the] Petitioner has submitted does not point to his actual innocence in this case,
there has been no due process reason shown to toll the statute of limitations.”

                                        ANALYSIS

      The Petitioner acknowledges that he did not file his petition for writ of error coram
nobis within the statute of limitations; however, he maintains that he is entitled to relief
because there was newly discovered evidence. He asserts that the statute of limitations
should be tolled. The State responds that the Petitioner’s claim was barred by the statute
of limitations. Further, the State asserts that the Petitioner’s Brady claim is not a
cognizable coram nobis claim. We agree with the State.

        The petition for 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). A writ of error coram nobis lies “for subsequently or newly
discovered evidence relating to matters which were not litigated at trial if the judge
determines that such evidence may have resulted in a different judgment, had it been
                                            -5-
presented at trial.” T.C.A. § 40-26-105(b). To obtain coram nobis relief, the petitioner
must prove “(1) that he or she was reasonably diligent in seeking the evidence; (2) that
the evidence is material; and (3) that the evidence is likely to change the result of the
trial.” State v. Hall, 461 S.W.3d 469, 495 (Tenn. 2015). “Newly discovered evidence
that is merely cumulative or serves no other purpose than to contradict or impeach does
not warrant coram nobis relief.” Id. (internal quotations omitted). The coram nobis court
should consider both the evidence at trial and the evidence presented at the coram nobis
proceeding in determining “whether a reasonable basis exists for concluding that had the
evidence been presented at trial, the result of the proceedings might have been different.”
State v. Vasques, 221 S.W.3d 514, 526-27 (Tenn. 2007). The decision to grant or deny a
petition for writ of error coram nobis rests within the sound discretion of the coram nobis
court. Hall, 461 S.W.3d at 496.

        A petition for a writ of error coram nobis 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. Mixon, 983 S.W.2d at 670. It has been the “longstanding rule that persons
seeking relief under the writ must exercise due diligence in presenting the claim.” Id.
Timely filing is an essential element of a coram nobis petition, and the State is not
required to raise the statute of limitations as an affirmative defense. Nunley v. State, 552
S.W.3d 800, 828 (Tenn. 2018). However, “[t]o accommodate due process concerns, the
one-year statute of limitations may be tolled if a petition for a writ of error coram nobis
seeks relief based upon new evidence of actual innocence discovered after expiration of
the limitations period.” Id. at 828-29. “‘[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.’” Workman v. State, 41 S.W.3d
100, 102 (Tenn. 2001) (quoting Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992)).
Whether a petitioner is entitled to due process tolling of the statute of limitations is a
mixed question of law and fact, which we review de novo with no presumption of
correctness. Nunley, 552 S.W.3d at 830 (citation omitted).

        Although the Petitioner acknowledges that he filed his coram nobis petition
outside the one-year statute of limitations, he asserts that he is entitled to tolling of the
statute of limitations because the State failed to provide “possibly exculpatory evidence”
to which he did not have access until the statute of limitations had expired. He claims
that he did not have access to the incident reports through the Freedom of Information
Act while his case involving the attempted murder of Mr. Boyd was pending.



                                            -6-
        In order to obtain coram nobis relief based on newly discovered evidence, a
petitioner is required to exercise diligence in bringing his claim. See Hall, 461 S.W.3d at
495. The Petitioner has failed to establish that he was diligent in filing his petition for
writ of error coram nobis and failed to provide any explanation why the petition was filed
over a year after he received the incident reports. During the coram nobis hearing, the
Petitioner testified that he received the incident reports in March or April 2014. The
Petitioner did not file a coram nobis petition until September 11, 2015, well over a year
from the time he received the “newly discovered evidence.” We conclude that the
Petitioner was not diligent in filing his petitioner for post-conviction relief and is not
entitled to coram nobis relief. See Joan Elizabeth Hall v. State, No. M2017-01621-CCA-
R3-ECN, 2018 WL 6566982, at *10 (Tenn. Crim. App. Dec. 12, 2018) (determining that
the petitioner was not entitled to equitable tolling when she did not satisfactorily explain
why she waited years after receiving the new evidence before filing her petition for writ
of error coram nobis); Melissa Barnett v. State, No. E2012-00855-CCA-R3-PC, 2013
WL 709588, at *5) (Tenn. Crim. App. Feb. 26, 2013) (concluding that the statute of
limitations should not be told when there is “[n]othing in the record explains why the
Petitioner waited over three years to attempt to present her coram nobis claim.”).

        Further, the incident reports relate only to the attempted murder of the Mr. Boyd,
and we cannot conclude that the information in the reports, if presented, may have led to
a different result at trial. See Vasques, 221 S.W.3d at 525. It is undisputed that the
Petitioner did not physically participate in the attack of Mr. Boyd, and there was no
testimony at trial that suggested that he did. Rather, as the original prosecutor explained
during the coram nobis hearing, the theory was that the Petitioner assisted in planning the
attack of Mr. Boyd. The reports are not inconsistent with that theory. The Petitioner has
failed to show that this newly discovered evidence may have led to a different result at
trial. Accordingly, due process does not dictate the tolling of the statute of limitations.

       To the extent that the Petitioner claims that the State failed to disclose the reports
in violation of Brady, the Tennessee Supreme Court has held that “a coram nobis
proceeding is not the appropriate venue to determine whether [a petitioner’s]
constitutional rights under Brady were violated.” Nunley, 552 S.W.3d at 821. The
Petitioner is not entitled to coram nobis relief.

                                         CONCLUSION

       Based on the foregoing, we affirm the judgment of the coram nobis court.



                                     JOHN EVERETT WILLIAMS, PRESIDING JUDGE
                                            -7-
