                                                                                            07/16/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs May 2, 2018

                 STEVEN SKINNER v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                 Nos. 00-05699, 00-05700 James M. Lammey, Judge
                       ___________________________________

                           No. W2017-01797-CCA-R3-ECN
                        ___________________________________


Petitioner, Steven Skinner, appeals the trial court’s denial of his petition for writ of error
coram nobis without a hearing on his “newly discovered” evidence. After careful
consideration, we affirm the judgment of the trial 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 JOHN EVERETT
WILLIAMS, P.J., and ALAN E. GLENN, J., joined.

Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, Steven Skinner.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.


                                         OPINION

        In 1999, Petitioner was involved in the murder of two victims. State v. Steve
Skinner (Skinner I), No. W2003-00887-CCA-R3-CD, 2005 WL 468322 at *1 (Tenn.
Crim. App. Feb. 28, 2005), perm. app. denied (Tenn. June 27, 2005). During the course
of the trial, the jury found that Petitioner, along with Marcus Boyd, Calvin Wardlow,
Calvin Boyd, and Michael Brown, conspired to murder the victims after they lost $53,000
of Marcus Boyd’s money in a drug deal gone wrong. Id. Specifically, the testimony of
his co-conspirators, Mr. Brown and Mr. Wardlow, established that the Petitioner was the
one who ordered the murders by flashing the lights on his car. Id. At the conclusion of
the trial, the jury convicted Petitioner of two counts of first degree premeditated murder.
The trial court sentenced Petitioner to two consecutive life sentences with the possibility
of parole. Petitioner appealed his convictions, arguing that the accomplice testimony
given at trial was not adequately corroborated and that one of the witnesses was an
accomplice as a matter of law. Id. This Court affirmed Petitioner’s convictions and the
trial court’s judgment. Id.

       Next, Petitioner filed a post-conviction petition alleging that he received
ineffective assistance of counsel. Steven D. Skinner v. State (Skinner II), No. W2009-
00307-CCA-R3-PC, 2010 WL 4188314 (Tenn. Crim. App. Oct. 22, 2010), perm. app.
denied (Tenn. Feb. 8, 2011). Again, this Court affirmed the post-conviction court’s
denial of the petition. Id. at *3-4. Then, Petitioner sought federal habeas corpus relief,
which the U.S. District Court similarly denied. Skinner v. Johnson (Skinner III), No. 11-
2112-SHL-dkv, 2014 U.S. Dist. LEXIS 184813 (W.D. Tenn. Aug. 6, 2014).

        On April 10, 2017, Petitioner filed a petition for writ of error coram nobis, relying
on evidence discovered when Petitioner made an Open Records Request to the Shelby
County District Attorney’s office in February 2017. In his petition, Petitioner asserted
that all of the newly discovered documents are pieces of exculpatory or impeachment
evidence that the State should have turned over to him at trial. Specifically, Petitioner
claimed that this new evidence consisted of statements from the State’s witnesses, Mr.
Brown and Mr. Wardlow, that Marcus Boyd orchestrated the murders, not Petitioner.
These statements were given to a federal prosecutor during the federal trials of
Petitioner’s co-conspirators.

        Petitioner acknowledged that he filed his petition well beyond the statute of
limitations but argued that the statute of limitations should be tolled, insisting that this
evidence could not have been known at an earlier time. The State filed a motion to
dismiss, arguing that the petition was time barred, all “newly discovered” evidence could
have been known to Petitioner at trial, and all evidence was cumulative in nature or
would be inadmissible at trial. The trial court granted the motion without an evidentiary
hearing. Petitioner now argues that the trial court abused its discretion when it granted
the State’s motion to dismiss Petitioner’s petition for writ of error coram nobis without
holding an evidentiary hearing. For reasons set forth below, we affirm the trial court’s
ruling.

                                             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
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“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 error 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 error 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.

        A petition for error coram nobis relief must be filed within one year after the
judgment becomes final. T.C.A. § 27-7-103. For the purposes of error 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. 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)). 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).

        It is undisputed that the petition at issue in this case is untimely. Petitioner
concedes as much. Thus, the only consideration is whether Petitioner has established due
process concerns which require tolling the statute of limitations. See Workman v. State,
41 S.W.3d 100, 101-102 (Tenn. 2001). We recognize that due process requires the
tolling of a statute-of-limitations period when a petitioner would otherwise be denied “‘an
opportunity for the presentation of claims at a meaningful time and in a meaningful
manner.’” Id. at 102 (quoting Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992)). In
determining whether due process requires tolling of the statute of limitations, this Court
must weigh Petitioner’s interest in obtaining a hearing on the grounds of newly
discovered evidence against the State’s interest in preventing stale and groundless claims.
Harris, 301 S.W.3d at 145 (citing Workman, 41 S.W.3d at 103). To balance these
interests, we use the following three-step analysis:

       (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




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       (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 opportunity to present the claim.

Wilson v. State, 367 S.W.3d 299, 234 (quoting Sands, 903 S.W.2d at 301).

        The petition at issue in this appeal was filed on April 10, 2017. Petitioner
concedes that his petition was clearly filed outside the statute of limitations. Therefore,
we must determine whether his asserted ground for relief – the witness statements
discovered after making an open records request in 2017 – actually arose after the
limitations period and whether a strict application of the statute of limitations would
effectively deny Petitioner a reasonable opportunity to present his claim.

        According to the record, it appears that this information was made available to
trial counsel before trial because these statements were taken before trial and were in the
District Attorney’s file. During Petitioner’s post-conviction hearing, trial counsel
testified that he “had access to all the material and reviewed all of it prior to trial.”
Skinner II, 2010 WL 4188314, at *4. Trial counsel also testified that he “had
conversations with the federal prosecutor about the case and subpoenaed him to court in
case he needed his testimony.” Id. Petitioner made no allegations that the federal
prosecutor withheld these statements or that trial counsel made a specific request for
them that was ignored. However, trial counsel did not call the federal prosecutor to
testify because he did not know what “additional, harmful information he might testify to
in front of the jury.” Id. From trial counsel’s testimony at the post-conviction hearing, it
appears that information from the federal prosecutor was available, but strategically not
used, at trial. Therefore, the evidence which Petitioner claims is “newly discovered” was
not later arising.

        Since this “newly discovered evidence” is not later arising and the statute of
limitations cannot be tolled, Petitioner does not have a valid error coram nobis claim.
Here, Petitioner did not exercise reasonable diligence that would have led to a timely
discovery because the record shows that trial counsel was already in possession of the
materials before trial. Therefore, these grounds are not “later-arising” and strict
application of the statute of limitations period by the error coram nobis court did not
effectively deny the petitioner a reasonable opportunity to present the claim. When the
petition for error coram nobis “fails to meet the necessary prerequisites to file for such
relief,” the trial court is not required to hold an evidentiary hearing. State v. Gerome J.
Smith, No. M2009-1144-CCA-R3, 2010 WL 3448047, at *4 (Tenn. Crim. App. Aug. 31,
2010), perm. app. denied (Tenn. Jan. 13, 2011). Because Petitioner did not meet the
necessary prerequisite of filing his petition within the statute of limitations, the trial court
was not required to hold an evidentiary hearing and therefore did not abuse its discretion.
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                                          Conclusion

       Based on the foregoing and the record as a whole, we affirm the judgment of the
error coram nobis court.



                                        ____________________________________
                                        TIMOTHY L. EASTER, JUDGE




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