                        IN THE SUPREME COURT OF TENNESSEE
                                   AT KNOXVILLE
                                             Heard in Nashville
                                           October 2, 2002 Session

                        RICKY HARRIS v. STATE OF TENNESSEE

                            Appeal from the Circuit Court for Carter County
                                 No. 10297     R. Jerry Beck, Judge



                          No. E1999-02771-SC-R11-PC - Filed April 16, 2003



In this appeal, the dispositive issues are whether a claim that the prosecution failed to disclose
exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), is a cognizable basis
for reopening a post-conviction petition under Tennessee Code Annotated section 40-30-217(a) and
whether the Court of Criminal Appeals erred in sua sponte treating the petitioner’s motion as a
petition for writ of error coram nobis based upon newly discovered evidence. The trial court denied
the petitioner’s motion to reopen on the basis that it did not state a cognizable ground for reopening
a post-conviction suit under Tennessee Code Annotated section 40-30-217(a). The Court of
Criminal Appeals agreed that the motion did not state grounds for reopening under the post-
conviction statute, but the intermediate court sua sponte treated the motion as a petition for writ of
error coram nobis and concluded that due process precluded application of the one-year statute of
limitations to bar the petition.1 The Court of Criminal Appeals therefore remanded the case to the
trial court to consider the merits of the coram nobis claim. From this decision, the State filed an
application for permission to appeal, primarily arguing that the Court of Criminal Appeals erred in
sua sponte treating the motion to reopen as a petition for writ of error coram nobis. We granted the
State’s application for permission to appeal,2 and for the reasons herein stated, this Court concludes
that the lower courts correctly held that the motion does not state grounds for reopening under the
post-conviction statute but that the Court of Criminal Appeals erred in sua sponte treating the motion
to reopen as a petition for writ of error coram nobis. The judgment of the Court of Criminal Appeals
therefore is reversed, and the judgment of the trial court dismissing the motion is reinstated.




         1
           In holding that due process required tolling of the one-year statute of limitations, the interme diate appe llate
court relied upon W orkm an v. State, 41 S.W.3d 100 (Tenn. 2001) and Burford v. State, 845 S.W .2d 204 (T enn. 1992).

         2
           On May 6, 2002 , this Court appointed Kenne th F. Irvine, Jr. to represent Mr. Harris in this appeal. The Court
app reciates Mr. Irvine’s willingness to accept this appointment and the excellent representation he and Mr. Robert R.
Kurtz have provided M r. Harris.
 Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal Appeals
                  Reversed; Judgment of the Trial Court Reinstated

FRANK F. DROWOTA , III, C.J., delivered the opinion of the court, in which WILLIAM M. BARKER, J.,
joined. JANICE M. HOLDER, J., filed a concurring opinion. E. RILEY ANDERSON, J., filed a
concurring and dissenting opinion, in which ADOLPHO A. BIRCH, JR., J., joined.

Michael E. Moore, Solicitor General, and Mark A. Fulks, Assistant Attorney General, for the
appellant, State of Tennessee.

Kenneth F. Irvine, Jr. and Robert R. Kurtz, Knoxville, Tennessee, for the appellee, Ricky Harris.


                                                     OPINION

                                                 BACKGROUND

        In 1988, the petitioner, Ricky Harris, was convicted of first degree murder and sentenced to
life imprisonment. His conviction and sentence were affirmed on direct appeal in February of 1991.3
Harris filed a post-conviction petition in 1992 alleging that his counsel were ineffective and that the
State had suppressed exculpatory evidence. The trial court denied post-conviction relief, and the
Court of Criminal Appeals affirmed the denial.4

        On December 10, 1998, just three days after this Court denied Harris’s application for
permission to appeal, Harris filed a motion in the trial court seeking to reopen his post-conviction
petition on the basis that his due process rights under the United States and Tennessee Constitutions
had been violated by the State’s failure to disclose exculpatory evidence material to his defense. See
Brady v. Maryland, 373 U.S. 83 (1963); Sample v. State, 82 S.W.3d 267 (Tenn. 2002).

        In particular, Harris alleged that the State withheld the identity of a witness, who was
purportedly interviewed via telephone by a law enforcement officer investigating his case. Attached
to Harris’s motion were purported notes of the alleged interview. These purported notes, which are
unsigned and do not include the name of the officer who allegedly conducted the interview, indicate
that Ms. Corrine Hampton told the unidentified officer that she had car trouble at approximately 8:25
a.m. on September 8, 1987, on highway 19-E in Hampton, Tennessee; that Harris stopped and
assisted her; that she had seen inside his car and inside the trunk of his car; and that she had not seen
another person or a dead body anywhere in the car or in the trunk. Ms. Hampton said that she had


         3
          See State v. Ricky Jerom e Harris, No. 85 (Tenn. Crim. App ., Kno xville, Nov. 8, 199 0), perm. app. denied
(Tenn., Feb. 4, 1991);

         4
          See Ricky Harris, No. 03C 01-9 611 -CR-004 10 (Tenn. Crim. Ap p., April 23, 1 998 ), perm. app. denied, (Tenn.,
Dec. 7, 1998 ).

                                                          -2-
followed the defendant to Sherwood Chevrolet, where he worked, and obtained minor repairs to her
vehicle.

        In his motion, the petitioner explained the significance and materiality of the alleged
interview notes as follows:

        During the trial the State maintained the Petitioner had killed the victim at her home
        or abducted her and took her to the Carr Cemetery where he disposed of the body or
        killed her at that point and disposed of the body. The State maintained this occurred
        between the time period of 8:00 a.m. and 9:00 to 9:30 a.m. Petitioner testified that
        he did not commit the crime and that he drove from Hampton straight to Sherwood
        Chevrolet in Johnson City. If the State would have provided this evidence, petitioner
        could have presented Ms. Hampton as his alibi witness and corroborated his
        testimony of what events occurred during the morning of September 8, 1987.

As to when he discovered this information, Harris alleged that he received the purported interview
notes along with an anonymous, hand-printed letter after he placed an advertisement in the
Elizabethton Star newspaper in August of 1998 seeking information about his case that would aid
in proving his innocence. The anonymous letter was attached to the petitioner’s motion, and it stated
that the writer is related to the sheriff who investigated Harris’s case and that the writer was shown
a copy of the notes of Ms. Hampton’s interview by the sheriff, who made the writer promise to keep
quiet about the information. According to the letter, the writer later obtained a copy of the interview
notes, but was afraid to disclose the information at that time and was doing so in response to Harris’s
advertisement because the writer had worked with and been a friend of Harris’s father.

        The trial court denied the petitioner’s motion on the basis that it did not state a cognizable
ground for reopening under Tennessee Code Annotated section 40-30-217(a). The trial court also
pointed out that the petitioner had failed to support his motion with sworn affidavits. The
anonymous letter, the anonymous interview notes, and Ms. Hampton’s signed statement were not
proven or supported by affidavit. The motion was supported by only the petitioner’s affidavit which
recited the alleged facts. The petitioner subsequently filed in the trial court an affidavit from Ms.
Hampton containing the alleged exculpatory statement she allegedly gave to an unidentified law
enforcement officer. Interestingly, the affidavit states only that Ms. Hampton had car trouble in
September of 1987, but it does not indicate the exact date in September these events occurred. After
reconsidering the petition along with the affidavit, the trial court adhered to its initial conclusion that
the motion did not state a cognizable ground for reopening under the post-conviction statute. The
trial court did not treat the motion as a petition for writ of error coram nobis.

        Harris appealed, and the Court of Criminal Appeals agreed with the trial court that a claimed
Brady violation is not a ground for reopening under Tennessee Code Annotated section 40-30-
217(a). Nonetheless, a majority of the intermediate court sua sponte treated the motion as a petition
for writ of error coram nobis and concluded that due process precluded application of the one-year



                                                   -3-
writ of error coram nobis statute of limitations.5 The intermediate court therefore remanded the case
to the trial court to determine: (1) whether the State suppressed exculpatory evidence; (2) whether
the petitioner was diligent and not at fault in failing to raise the issue earlier; and (3) whether the
evidence may have resulted in a different outcome.

       From this decision the State filed an application for permission to appeal, which this Court
granted. For the following reasons, the judgment of the Court of Criminal Appeals is reversed and
the judgment of the trial court is reinstated.

                                             ANALYSIS

                                        I. Motion to Reopen
        We begin our review with the threshold issue of whether the lower courts properly
determined that the issue raised by the petitioner, i.e., the suppression of exculpatory evidence, was
not a proper basis upon which to reopen a post-conviction petition. The State argues that the
suppression of exculpatory evidence is not listed in Tennessee Code Annotated section 40-30-217(a)
as a ground for reopening a post-conviction petition. The petitioner asserts that, even if the motion
did not assert a cognizable ground for reopening, the Court of Criminal Appeals correctly treated it
as a petition for writ of error coram nobis.

        Under the provisions of the Post-Conviction Procedure Act, a petitioner “must petition for
post-conviction relief . . . within one (1) year of the final action of the highest state appellate court
to which an appeal is taken . . . .” Tenn. Code Ann. § 40-30-202(a). Moreover, the Act
“contemplates the filing of only one (1) petition for post-conviction relief.” Tenn. Code Ann. § 40-
30-202(c). After a post-conviction proceeding has been completed and relief has been denied, as in
this case, a petitioner may move to reopen only “under the limited circumstances set out in 40-30-
217.” Id. These limited circumstances include the following:

                (1) The claim in the motion is based upon a final ruling of an
                appellate court establishing a constitutional right that was not
                recognized as existing at the time of trial, if retrospective application
                of that right is required. Such motion must be filed within one (1)
                year of the ruling of the highest state appellate court or the United
                States supreme court establishing a constitutional right that was not
                recognized as existing at the time of trial; or




        5
          In dissent, Judge Witt opined that Workman was expressly limited to capital cases and
could not be applied to toll the one-year writ of error coram nobis statute of limitations in this case
but that due process may apply in some cases to toll the post-conviction statute of limitations bar of
Tennessee Code Annotated section 40-30-202(b).

                                                  -4-
                   (2) The claim in the motion is based upon new scientific evidence
                   establishing that such petitioner is actually innocent of the offense or
                   offenses for which the petitioner was convicted; or

                    (3) The claim asserted in the motion seeks relief from a sentence that
                    was enhanced because of a previous conviction and such conviction
                    in the case in which the claim is asserted was not a guilty plea with
                    an agreed sentence, and the previous conviction has subsequently
                    been held to be invalid, in which case the motion must be filed within
                    one (1) year of the finality of the ruling holding the previous
                    conviction to be invalid; and

                    (4) It appears that the facts underlying the claim, if true, would
                    establish by clear and convincing evidence that the petitioner is
                    entitled to have the conviction set aside or the sentence reduced.

Tenn. Code Ann. § 40-30-217(a)(1)-(4). The plain language of this statute provides only three
grounds for reopening – a new constitutional right that is given retroactive application, new
scientific evidence of actual innocence, and evidence of an improperly enhanced sentence. A claim
that the State suppressed or failed to disclose exculpatory evidence in violation of Brady simply is
not one of the statutory grounds for reopening a post-conviction proceeding.6 Accordingly, we hold
that the trial court and the Court of Criminal Appeals correctly ruled that the petitioner’s claim that
the State failed to disclose exculpatory evidence is not a cognizable ground for reopening his post-
conviction proceeding.

                                   II. Writ of Error Coram Nobis
         We must next determine whether the Court of Criminal Appeals erred in sua sponte treating
the petitioner’s motion to reopen as a petition for writ of error coram nobis. The State argues that
the intermediate court erred because the allegations in the motion do not constitute subsequently or
newly discovered evidence that the defendant was without fault in presenting at the time of the trial.
Further, the State points out that an alleged violation of Brady is not cognizable in a writ of error
coram nobis proceeding. The petitioner, by and through appointed counsel, responds that the Court
of Criminal Appeals’s action was appropriate because the allegations of the motion sufficiently state
a coram nobis claim. In his pro se application for permission to appeal to the Court of Criminal
Appeals, Harris argued that the writ of error coram nobis does not apply in this case and alleged that
the trial court had erred by simply referring to Mixon v. State, 983 S.W.2d 661 (Tenn. 1999), which
involved a petition for writ of error coram nobis.

          6
          As the Court of Criminal Appeals pointed out, the General Assembly’s intent to exclude Brady claims as
grounds for reop ening is evidenced by other statutory provisions that provide relief from the procedural bar of waiver
when a claim is not raise d because of a Brady violation. See Tenn. Cod e Ann. § 40-30-206 (g)(2)( “failure to present
the ground wa s the result of state action in violation of the federal or state constitution.”). C learly, the G enera l Assem bly
knows how to make exceptions for Brady violations. It simply chose not to include such claims in the statute addressing
motions to reopen.

                                                               -5-
        Upon careful consideration, we conclude that the Court of Criminal Appeals erred in sua
sponte treating the motion to reopen as a petition for writ of error coram nobis. These proceedings
are fundamentally distinct in terms of the governing procedural rules and the grounds for relief.
Motions to reopen are filed only after the petitioner has unsuccessfully pursued post-conviction
relief. Therefore, the statute governing such motions contemplates a summary proceeding in which
the trial court can readily determine whether or not one of the three very narrow grounds for
reopening exists. As previously indicated, the three grounds for reopening a post-conviction petition
are: (1) a new constitutional right that is given retroactive application; (2) new scientific evidence
of actual innocence; or (3) evidence of an improperly enhanced sentence. Tenn. Code Ann. § 40-30-
217(a)(1)-(4). Because all of these grounds can and likely will be proven by documentary evidence
alone, there will rarely be a factual dispute as to their existence. When a ground for reopening is
proven, the only factual dispute will be whether or not the petitioner has established by clear and
convincing evidence that he or she is entitled to have the conviction set aside or the sentence
reduced. Tenn. Code Ann. § 40-30-217(a)(4). Again, because of the nature of the grounds for
reopening, even this factual issue should be relatively uncomplicated. Therefore, although the State
may choose to respond to a motion to reopen, the statute certainly does not require the filing of a
response. Where, as here, a motion to reopen is denied, the petitioner has only ten days to file an
application for permission to appeal in the Court of Criminal Appeals, with the State having ten days
to respond. Tenn. Code Ann. § 40-30-217(c). The record on appeal therefore is minimal, consisting
of the application which must have attached to it all documents filed by both parties in the trial court
and the order denying the motion. Id.

      Writ of error coram nobis claims in criminal cases are governed by a different statute,
Tennessee Code Annotated section 40-26-105,7 which currently provides:

                    [u]pon 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.




          7
           As this Court has recognized , “[t]he writ of error cora m nobis is an extra ordinary rem edy known more for its
denial than its approval.” State v. Mixon, 983 S.W.2d 661, 666 (Tenn. 1999). The writ of error coram nobis was limited
in scope in Tennessee to civil proceedings until the General Assembly passed a statute in 1955 extending it to criminal
proceedings. Id. at 668. Criminal coram nobis proceedings were “to be governed by the same rules and procedure
app licable to the writ of error cora m nob is in civil cases, except in so far as inco nsistent herewith.” 195 5 T enn. P ub. Acts
166 . However, in 1971, Rule 60 of the T ennessee R ules of C ivil Pro cedure becam e effective and su perse ded the writ
of error coram nobis in civil cases. Mixon, 983 S.W .2d at 668. Because the General Assemb ly has never repealed the
statute, the writ of error coram nobis continues to be a remedy in criminal actions, but “the procedure governing the
remedy is based upon the civil writ of error coram nobis which has been abolished for almost 28 years.” Id. The statutes
thus give rise to an anomalous situation – an existing reme dy that is governed by antiquated procedural rules. Id.
Nonetheless, the Genera l Assem bly has not reso lved this anom aly since it was first pointed out four years ago in Mixon.

                                                               -6-
The grounds for seeking a petition for writ of error coram nobis are not limited to specific categories,
as are the grounds for reopening a post-conviction petition. Coram nobis claims may be based upon
any “newly discovered evidence relating to matters litigated at the trial” so long as the petitioner also
establishes that the petitioner was “without fault” in failing to present the evidence at the proper
time. Coram nobis claims therefore are singularly fact-intensive. Unlike motions to reopen, coram
nobis claims are not easily resolved on the face of the petition and often require a hearing. The
coram nobis statute also does not contain provisions for summary disposition or expedited appeals.
Even more significant to the issue in this appeal, however, is a distinction relating to the statute of
limitations. In motion to reopen proceedings, the petitioner must set out the factual basis for his or
her claim, including facts to show that the motion has been timely filed within one year of the ruling
establishing a new retroactive constitutional right or within one year of the ruling holding a previous
enhancing conviction invalid. See Tenn. Code Ann. § 40-30-217(1) & (3). Although coram nobis
claims also are governed by a one-year statute of limitations,8 the State bears the burden of raising
the bar of the statute of limitations as an affirmative defense. See Sands v. State, 903 S.W.2d 297,
299 (Tenn. 1995).

        The distinctions between motion to reopen and coram nobis proceedings illustrate why it will
rarely, if ever, be appropriate for an appellate court to sua sponte treat a motion to reopen as a
petition for writ of error coram nobis. In doing so, the appellate court will deprive the State of an
opportunity to file an appropriate response in an error coram nobis proceeding, and the trial court,
which is accustomed to resolving the factual disputes likely to arise, will be deprived of the
opportunity to determine the merits of the petition in light of the State’s response. In sua sponte
treating the motion to reopen as a petition for writ of error coram nobis, the Court of Criminal
Appeals in this case apparently failed to consider the fundamental distinctions between these
proceedings. The intermediate appellate court’s reliance upon Norton v. Everhart, 895 S.W.2d 317,
319 (Tenn. 1995), as authority for its action was misplaced. In considering whether a trial court had
the authority to treat a habeas corpus petition as a petition for writ of certiorari, this Court in Norton
stated:
        It is well settled that a trial court is not bound by the title of the pleading, but has the
        discretion to treat the pleading according to the relief sought. Fallin v. Knox County
        Board of Commissioners, 656 S.W.2d 338, 342 (Tenn.1983); State v. Minimum
        Salary Dep't. of A.M.E. Church, 477 S.W.2d 11, 12 (Tenn.1972).

Id. at 319 (emphasis added). The decision in Norton recognizes the authority of trial courts to treat
a pleading in accordance with the relief sought.9 However, the decision in Norton does not support


         8
         See Tenn. Code Ann.§ 27-7-103(“[t]he writ of error coram nobis may be had within one (1) year after the
judgment beco mes final . . . .”); State v. Mixon, 983 S.W .2d 661, 669 (Tenn. 1999 ).

         9
          The concurring opinion indicates that, because the plead ing was titled “mo tion to re ope n petition for post-
conviction relief or in the alternative motion for a new trial based on newly discovered evidence,” the petitioner on
appeal could have complained that the trial court erred in failing to treat the pleading as a petition for writ of error coram
nobis. We disagree. As a practical matter, such a rule would unnecessarily expend judicial resources and fundamentally
                                                                                                                 (continued...)

                                                             -7-
the notion that appellate courts may independently examine motions to reopen to determine whether
the petitioner should have pursued a completely different avenue of relief in the trial court.
Appellate review generally is limited to the issues raised and decided in the trial court. See, e.g.,
Tenn. R. App. P. 13 & 36. Adherence to this principle is particularly important in the context of
motions to reopen given the limited, summary, and expedited nature of such proceedings. Indeed,
were appellate courts to routinely evaluate such motions and address grounds never litigated nor
decided in the trial court, the summary nature of such proceedings would be irrevocably altered.
Therefore, we conclude that the Court of Criminal Appeals erred in sua sponte treating the motion
to reopen as a petition for writ of error coram nobis. Having so decided, we need not address any
issues relating to the one-year coram nobis statute of limitations.10


                                           CONCLUSION
        For the reasons stated herein, the judgment of the Court of Criminal Appeals is reversed, and
the judgment of the trial court dismissing the motion is reinstated. Costs of this appeal are taxed to
the appellee, Ricky Harris, for which execution may issue if necessary.




         9
           (...continued)
alter motion to reopen proceedings. For example, to avoid a remand, trial courts likely would evaluate the merits of
every possible alternative claim, even where, as here, the petitioner does not actively pursue the alternative claim. The
State would also likely respond to the alternative claims to raise any applicable affirmative defenses, transforming the
summary motion to reopen proceeding into lengthy litigation. Given the fundamental differences betwe en mo tions to
reopen and petitions for writ of error coram nobis, a petitioner who is seeking to have the trial court consider both of
these avenues for relief must be required to actively p ursue b oth in the trial court. When a petitioner does not do so,
he or she should not be heard to complain on appeal about the trial court’s failure to evaluate the merits of the alternative
claim fo r relief.

          10
             W hile we reserve this question for another day, we feel comp elled to point out in response to the dissenting
opinion that the threshold inquiry in the Burford due process analysis is whether a petitioner has alleged a “later-arising”
prima facie claim which will be preclud ed by strict app lication o f the statute o f limitations. See, e.g., Burford, 845
S.W.2d at 209; Sand s v. State, 903 S.W.2d 297, 301 (T enn. 1995). In this case, the evidence upon which Harris relies
does not appear to be “newly discovered” nor does Harris appear to be “without fault” in failing to previously present
it. As the State points out, if the allegations are true, at 8:30 a.m. on the day the victim disappeared, Harris stopped along
the road side an d rendered assistance to a strand ed m otorist. Harris apparently searche d his trunk for the ap propriate
tools, tightened the fan belt on the m otorist’s car, and started the car. T hrougho ut these activities, the motorist
accompanied Harris, allegedly observing his actions as well as the trunk and interior of his car. Therefore, if the
allegations are true, Harris was acutely aware of the existence o f the strand ed motorist prior to his initial trial. Mo reover,
Harris appears to be at fa ult in failing to previously present this evidence prior to trial since he failed to disclose her
existenc e and gave a stateme nt to po lice indicating that he dro ve dire ctly from the victim’s home to his work place on
the morning of the victim’s disappearance. Thus, the evidence upon which H arris relies does not appear to be
subsequently or newly disco vered , and H arris do es not appear to be “without fault” in failing to previously present this
evidence. Therefore, accepting for the sake of argument the dissent’s proposition that the Burford due pro cess analysis
applies in this case, Harris would not be entitled to relief from the one-year statute of limitations. Indeed, it would not
be necessary for a court to engage in the balancing portion of the analysis because the proof upon which Harris relies
does not appear to state a prima facie later-arising claim under the writ of error coram nobis statute.

                                                              -8-
___________________________________
FRANK F. DROWOTA, III,
CHIEF JUSTICE




 -9-
