        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  January 8, 2013 Session

            GEORGE CAMPBELL, JR. v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Shelby County
                       No. 93-00428-29 James C. Beasley, Jr., Judge



                    No. W2012-00566-CCA-R3-CO - Filed June 25, 2013


Petitioner, George Campbell, Jr., was convicted by a jury in Memphis of felony murder and
aggravated assault and sentenced to life in prison in 1994. See State v. George Campbell,
Jr., No. 02-C-01-9408-CR00165, 1996 WL 368224, at *1 (Tenn. Crim. App., at Jackson,
June 28, 1996), perm. app. denied, (Tenn. Jan. 6, 1997). His convictions and sentence were
affirmed on direct appeal. Id. Petitioner later sought post-conviction relief on the basis of
ineffective assistance of counsel. The post-conviction court denied relief and this Court
affirmed the decision of the post-conviction court. See George Campbell, Jr. v. State, No.
W2002-00703-CCA-R3-PC, 2001 WL 1042112, at *1 (Tenn. Crim. App., at Jackson, Sept.
10, 2001), perm. app. denied, (Tenn. Dec. 27, 2001). Then Petitioner sought relief via the
writ of habeas corpus on the basis that his convictions were void for various reasons. The
trial court denied relief and this Court affirmed the denial of habeas corpus relief on appeal.
See George Campbell, Jr. v. Bruce Westbrooks, No. W2002-02086-CCA-R3-CO, 2003 WL
22309471, at *1 (Tenn. Crim. App., at Jackson, Oct. 6, 2003). Petitioner also sought redress
in the form of a motion of writ of error coram nobis in which he claimed that newly
discovered evidence may have resulted in a different judgment at trial had the evidence been
admitted at the trial. See George Campbell, Jr. v. State, No. W2007-00820-CCA-R3-CO,
2008 WL 2219305, at *1 (Tenn. Crim. App., at Jackson, May 28, 2008). This Court affirmed
the dismissal of the petition for writ of error coram nobis on the basis that it was untimely
and “nothing in the record implicate[d] any due process concerns that would require that the
statute of limitations be tolled.” Id. at *2. Petitioner filed a second petition for writ of error
coram nobis that is the subject of the appeal herein. After a hearing concerning the timeliness
of the petition, the trial court entered an order finding that Petitioner’s claims were barred
by the one-year statute of limitations pertaining to coram nobis petitions and that due process
did not require the rolling of the statute of limitations. After a thorough review of the record,
we agree with the determination made by the trial court. The petition was filed more than
one year after the judgment became final. Further, Petitioner has shown no reason that due
process would require the tolling of the statute. Accordingly, the judgment of the trial court
is affirmed.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS and
D. K ELLY T HOMAS, J R., JJ., Joined.

Lance R. Chism, Memphis, Tennessee, for the appellant, George Campbell, Jr.

Robert E. Cooper, Jr., Attorney General and Reporter, J. Ross Dyer, Assistant Attorney
General; Amy P. Weirich, District Attorney General, and Kirby May, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                    Factual Background

        In 1994, Petitioner was convicted by a Shelby County Jury of felony murder and
aggravated assault for events that occurred in 1991. Petitioner was involved with two other
defendants, Vander Moore and Lontina McGary, in a series of robberies in Memphis and the
surrounding area. Petitioner was described as the mastermind behind the robberies, one of
which resulted in the death of Kevin McConico. See State v. Campbell, 1996 WL 368224,
at *2. At trial, McGary testified as to Petitioner’s involvement in the crimes. Id. at *5-6.
There was also testimony that a truck with an African-American driver, registered to
Petitioner, was sitting at an intersection near the robbery with the motor running. Two
African-Americans were seen running from the scene of the murder to the truck. As a result
of the convictions, Appellant was sentenced to an effective sentence of life in prison. Id. at
*1.

        On direct appeal from the convictions, Petitioner argued that the State withheld co-
defendant McGary’s statement prior to trial in violation of Brady v. Maryland, 373 U.S. 83
(1963) and Rule 16 of the Tennessee Rules of Appellate Procedure. State v. Campbell, 1996
WL 368224, at *2. Additionally, Petitioner complained of preaccusation delay, error in the
admission of photographs of his truck, and the denial of the motion for judgment of acquittal.
Id. at *3-6. This Court denied relief and the supreme court denied permission to appeal.

       On January 5, 1998, Petitioner filed a petition for post-conviction relief. In the
petition, Petitioner alleged ineffective assistance of counsel because trial counsel failed to
contest the admissibility of a photograph of his truck, failed to prepare for trial, and failed
to defend him at trial. Additionally, Petitioner argued that the trial court gave an improper
jury instruction on reasonable doubt. After a hearing, the petition was denied by the post-

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conviction court on March 20, 2000. This Court affirmed the denial of the petition for relief.
See Campbell v. State, 2001 WL 1042112, at *1.

        Petitioner then filed a petition for writ of habeas corpus in May of 2002. The petition
alleged, inter alia, that his convictions were void because the trial court was without
jurisdiction to render the judgment. The trial court summarily dismissed the petition in July
of 2002 and this Court affirmed the dismissal of the petition, finding that the petition was
filed in the improper court and Petitioner’s arguments lacked merit. Campbell v. Westbrooks,
2003 WL 22309471, at *1.

        Petitioner sought further relief through the writ of error coram nobis. In February of
2007, Petitioner filed his first petition for coram nobis relief. He alleged that in August of
2005 he received verbatim “transcripts of the only alleged prosecution witness, Lontina
McGary, during the trial of Vand[e]r Moore (shooter).” Petitioner insisted that the testimony
by McGary at the Vander Moore trial indicated that Petitioner’s indictments were procured
through fraud. Campbell v. State, 2008 WL 2219305, at *1. Petitioner claimed that he was
unable to procure this evidence due to health issues. The trial court dismissed the petition
as untimely. This Court affirmed that decision, determining that Petitioner presented no
evidence of medical impairments that would have prevented his discovery of the evidence
and, after a review of the transcript attached to the application for coram nobis relief and the
direct appeal opinion, there was no evidence of fraud as alleged by Petitioner. Id. at *2.

        Then, on November 16, 2010, Petitioner filed the petition for writ of error coram
nobis which is the subject of this appeal. In the petition, Petitioner argued that the State: (1)
failed to disclose a three-page statement made by McGary after Vander Moore’s trial as well
as a letter the District Attorney General’s office sent to the parole board on her behalf; (2)
witness statements of Tommy Williams and Carol White; and (3) police reports concerning
similar robberies in which McGary was also a suspect. Petitioner claimed that he first
became aware of these items in October of 2010 when he received the documents as part of
a freedom of information request.

        The trial court held a hearing on the timeliness of the petition. At the hearing, the
State argued that Petitioner was aware of and, in fact, litigated the claims he now presented
to the court in his petition either at trial, on appeal, and/or during post-conviction. Thus, the
State alleged, the matters did not constitute newly-discovered evidence for purposes of coram
nobis relief and should therefore be barred by the one-year statute of limitations. Further, the
State insisted that due process concerns did not require tolling of the statute of limitations.

       The trial court essentially agreed with the State’s argument and determined that the
petition for relief was untimely. Specifically, the trial court’s order stated:

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       [Petitioner’s] allegations were raised on direct appeal, were again litigated in
       a Petition for post conviction relief, in a petition for writ of habeas corpus and
       in a prior petition for writ of error coram nobis. The issues have always been
       the same. All of the prior courts have found that the issues have no merit. A
       review of the records in this case indicate that the issues alleged as newly
       discovered evidence were in fact litigated during the trial and at all subsequent
       hearings.

              It is the finding of this Court after a thorough review of all of the prior
       proceedings that the issues in question are not newly discovered but in fact
       have been known to the petitioner since his trial. Further, that there is nothing
       to indicate that there has been any due process violation and as a result there
       is no basis for tolling the statute of limitations in this matter.

       Petitioner filed a timely notice of appeal. On appeal, he insists that the trial court
erred in denying the petition without an evidentiary hearing.

                                           Analysis

        On appeal, Petitioner insists that he is entitled to a hearing on his claims for coram
nobis relief to determine whether the State withheld the documents in question and whether
the bar of the statute of limitations would deprive Petitioner of the opportunity to present his
claims at a meaningful time and in a meaningful manner. The State, on the other hand,
argues that Petitioner does not present proof sufficient to overcome the untimeliness of the
petition.

      Relief by petition for writ of error coram nobis is provided for in Tennessee Code
Annotated section 40-26-105. That statute provides, in pertinent part:


       (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.

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       (c) The issue shall be tried by the court without the intervention of a jury, and
       if the decision be in favor of the petitioner, the judgment complained of shall
       be set aside and the defendant shall be granted a new trial in that cause.

T.C.A. § 40-26-105 (b), (c). The writ of error coram nobis is an “extraordinary procedural
remedy,” filling only a “slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d
661, 672 (Tenn. 1999). The “purpose of this remedy ‘is to bring to the attention of the trial
court some fact unknown to the court which if known would have resulted in a different
judgment.’” State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995) (quoting State ex
rel. Carlson v. State, 407 S.W.2d 165, 167 (Tenn. 1996)). The decision to grant or deny a
petition for writ of error coram nobis rests within the sound discretion of the trial court.
Teague v. State, 772 S.W.2d 915, 921 (Tenn. Crim. App. 1988), overruled on other grounds
by Mixon, 983 S.W.2d at 671 n.13.

         A petition for writ of error coram nobis must relate: (1) the grounds and the nature of
the newly discovered evidence; (2) why the admissibility of the newly discovered evidence
may have resulted in a different judgment had the evidence been admitted at the previous
trial; (3) the petitioner was without fault in failing to present the newly discovered evidence
at the appropriate time; and (4) the relief sought by the petitioner. Freshwater v. State, 160
S.W.3d 548, 553 (Tenn. Crim. App. 2004); Hart, 911 S.W.2d at 374-75. Our supreme court
has held that the following analysis applies to the determination of whether a petition can be
successful on a petition for a writ of error coram nobis, “‘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 (Tenn. 2007) (quoting
State v. Vasques, No. M2004-00166-CCA-R3-CD, 2005 WL 2477530 at *13 (Tenn. Crim.
App. at Nashville, Oct. 7, 2005), aff’d, Vasques, 221 S.W.3d 526.

        A petition for writ of error coram nobis must usually be filed within one year after the
judgment becomes final. See T.C.A. § 27-7-103; Mixon, 983 S.W.2d at 670; Freshwater,160
S.W.3d at 553. It has been determined that a judgment becomes final, for purposes of coram
nobis relief, 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 explained that:

       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-

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       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 . . . . Although coram nobis claims also are governed by a
       one-year statute of limitations, 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).

Harris v. State, 102 S.W.3d 587, 592-93 (Tenn. 2003).

        Despite the statute of limitations, a trial court can consider an untimely petition if
applying the statute of limitations would result in the denial of due process. See Workman
v. State, 41 S.W.3d 100, 103 (Tenn. 2001); Burford v. State, 845 S.W.2d 204, 209-10 (Tenn.
1992). The court should examine: (1) when the limitations period would normally have
begun to run; (2) whether the grounds for relief arose after the limitations period normally
would have commenced; and (3) if the grounds are later-arising, would a strict application
of the limitations period deny the petitioner a reasonable opportunity to present the claim.
Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995).

       In the case herein, we agree with the trial court’s assessment that the petition for writ
of error coram nobis is untimely and that Petitioner does not present a due process violation
that would toll the statute of limitations. The trial court commented:

       [A]ll of these issues have been previously litigated on multiple occasions and
       there’s no due process violation which would toll the statute of limitations. I
       feel the statute has run and I further feel that there’s no valid basis for the writ.
       I don’t find that the evidence that he’s arguing is newly discovered - - A, is
       newly discovered or is in fact new that it’s all old and so I’m of the opinion
       that he’s not entitled to an evidentiary hearing.




Petitioner’s convictions was affirmed on direct appeal on June 28, 1996, and the supreme
court denied permission to appeal on January 6, 1997. Petitioner then sought post-conviction
relief, the denial of which was affirmed by this Court on September 11, 2001. The supreme
court denied permission to appeal on December 27, 2001. Petitioner sought habeas corpus
relief; it was denied by the trial court and affirmed by this Court on October 6, 2003.
Petitioner then sought coram nobis relief in February of 2007, almost four years later. Coram
nobis relief was denied in May of 2008 and the petition for coram nobis relief at issue herein
was not filed until November of 2010, clearly outside the one-year statute of limitations.

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Further, we agree with the coram nobis court that Petitioner does not present sufficient
evidence to establish that either he is entitled to relief or that the statute of limitations should
be tolled to permit the late filing of his petition as he has not shown that he was “without
fault” in failing to previously present this evidence or that the evidence was even newly
discovered as there were references to McGary’s identification of Petitioner as the
perpetrator and her statement both in the direct appeal and post-conviction appeal. T.C.A.
§ 40-26-105; Mixon, 983 S.W.2d at 668. Petitioner was not only aware of McGary’s second
statement to police and potential receipt of a letter to the parole board, but utilized the
knowledge of these items to try to impeach McGary’s testimony at trial. As to Petitioner’s
claims that the State failed to provide him with statements of Tommy Williams and Carol
White concerning the description of the getaway car, both Williams and White were
questioned at trial about their identification of the truck. Finally, Petitioner has failed to
show how evidence of other robberies would have been relevant and/or admissible at his own
trial. Moreover, Petitioner has failed to demonstrate that the newly-discovered evidence may
have resulted in a different judgment had the evidence been presented at trial. Petitioner is
not entitled to relief.

                                           Conclusion

       For the foregoing reasons, the judgment of the coram nobis court is affirmed.




                                              ___________________________________
                                              JERRY L. SMITH, JUDGE




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