        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs June 27, 2012

         ANDREW LEE MOATS, JR. v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Knox County
                          No. 96686 Bob R. McGee, Judge


                No. E2011-02549-CCA-R3-PC - Filed January 22, 2013


The Petitioner, Andrew Lee Moats, Jr., filed a petition for writ of error coram nobis alleging
that newly discovered evidence—a recorded interview with Marlene Walker and the prior
criminal record of Richard Breeden—mandated a new trial. He further argued that he was
entitled to relief because the State failed to disclose this evidence and failed “to reveal all
deals with witnesses.” The Knox County Criminal Court summarily dismissed the petition
concluding that the Petitioner did not state a cognizable claim for coram nobis relief.
Following a review of the record, we conclude that the Petitioner has failed to allege the
existence of subsequently or newly discovered evidence that would warrant relief under a
writ of error coram nobis. The order of summary dismissal is affirmed.

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

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and N ORMA M CG EE O GLE, JJ., joined.

Andrew Lee Moats, Jr., Pikeville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; and Randall E. Nichols, District Attorney General, for the appellee, State
of Tennessee.

                                     OPINION
                               FACTUAL BACKGROUND

       In 1997, the Petitioner was convicted by a Knox County jury of first degree murder.
The trial court imposed a life sentence. The facts upon which the Petitioner was convicted
have previously been summarized by this court as follows:
       The state presented the following proof. Jeffery Mayes testified that he
met the victim, Dallas Walker, at the victim’s home two days prior to the
victim’s murder. Mayes received over five hundred dollars from the victim to
purchase marijuana for the victim and Carl Neer. Mayes gave the [Petitioner]
the money to purchase the marijuana. The [Petitioner] and Mayes attempted
to obtain the marijuana, but they were unsuccessful.

        Richard Breeden testified that the day before the victim’s murder, June
8, 1990, he talked to the victim about the victim’s deal with the [Petitioner].
Breeden had recently traded his Jeep and an Intratec nine millimeter automatic
pistol for the [Petitioner’s] Lincoln Continental. Around dusk that evening,
Breeden, the victim, Marlene Walker, Chuck Walker and Bill Cox went to the
[Petitioner’s] house in Breeden’s Lincoln. The victim, the [Petitioner] and
Mayes talked outside in front of the [Petitioner’s] home. Breeden was unable
to hear this conversation, but he testified that it was a very brief conversation
and he saw no violent gestures. After this conversation, the five of them drove
to Maynardville in search of the [Petitioner’s] Jeep. Four hundred dollars was
still owed on the Lincoln for which Breeden traded the Jeep; therefore,
Breeden was unable to obtain a clear title to the Lincoln. They did not locate
the [Petitioner’s] Jeep, and they returned to Marlene Walker’s home.

        Breeden testified that the following morning, the victim and Carl Neer
came to his house in the victim’s creme-colored Ford Escort. The victim drove
Neer and Breeden to the [Petitioner’s] home to inquire about his money, but
the [Petitioner] was not at home. In the afternoon, Mayes called Breeden and
told him that they had half the victim’s money, and they would obtain the other
half by the end of the day. Mayes testified he told Breeden that the [Petitioner]
had all the victim’s money. Breeden notified the victim of the situation. The
victim returned to Breeden’s house with Carl Neer, and they drove to the
[Petitioner’s] home again. The victim parked his car at a Mrs. Winner’s
restaurant near the [Petitioner’s] home. Mayes exited the [Petitioner’s] home
where he met Breeden near the street. Mayes told Breeden, who was carrying
a .25-caliber gun, it would take another 30-45 minutes to obtain the victim’s
money. The victim and Breeden left, but Breeden returned to the [Petitioner’s]
house later to inquire about the victim’s money. Mayes testified that he saw
a nine millimeter gun laying in the passenger’s seat of Breeden’s Lincoln while
he and Breeden were talking. Breeden testified that Mayes seemed very
nervous during this meeting.




                                       -2-
        In addition to the meetings for which Breeden testified, Mayes testified
about a meeting in Marlene Walker’s driveway among Mayes, the victim and
the [Petitioner], which occurred on the night before or the day of the victim’s
murder. The victim asked Mayes about his money, and Mayes told the victim
that the [Petitioner] had the money. The victim and the [Petitioner] discussed
something calmly, but Mayes was unable to hear the conversation.

       Carl Neer testified that he arrived at the victim’s house around 8:30
p.m. on the evening of the murder. Neer testified that he was not there in the
morning as Breeden had testified. Neer testified that he, the victim and
Marlene Walker drove to Breeden’s house in the victim’s Ford Escort. The
four of them went to the [Petitioner’s] house, Breeden knocked on the door,
and Breeden returned to the car saying no one was there. They parked across
the street from the [Petitioner’s] house at a fast food restaurant. Neer
described the meeting of Breeden and Mayes consistently with the testimony
of Breeden and Mayes. The victim returned Breeden to his home and drove
Marlene Walker and Neer to the victim’s home.

        Marlene Walker left the victim’s home, but returned ten to fifteen
minutes later. Walker told the victim that the [Petitioner] had returned home
and suggested that the victim should go to the [Petitioner’s] to retrieve his
money. The victim and Neer drove to the [Petitioner’s] home around 11:00
p.m. on June 9, 1990. Because the victim did not see the [Petitioner’s] Jeep
at the [Petitioner’s] home, he decided to park in a parking lot near the
[Petitioner’s] home to watch and wait for the [Petitioner]. Neer testified that
within five minutes a person exited the front door of the [Petitioner’s] home.
One to two minutes later, two more people exited the [Petitioner’s] home.
Neer saw a Jeep exit the [Petitioner’s] home on a side street. The Jeep pulled
in front of their car at an angle with the bright lights shining into the victim’s
car. The bright lights remained on the victim and Neer as they lifted their
hands to cover their eyes. After ten to twelve seconds, the Jeep pulled
door-to-door to the victim’s car. According to Neer, the [Petitioner], the driver
in the Jeep, said the victim’s name and asked the victim if the victim had been
looking for him. Neer did not hear the victim say anything. The [Petitioner]
had a shotgun placed across his lap. The victim and Neer did not have guns
in their hands at this time, but there were two guns in the car which were
visible. Neer testified that the [Petitioner] shot the victim in the face within
seconds or minutes of placing his Jeep door-to-door with the victim’s car.
After bringing himself off the floorboard, Neer exited the vehicle with the



                                       -3-
        .25-caliber gun and attempted to shoot at the Jeep. The gun would not
        discharge, and Neer threw it in a nearby yard.

                Mayes was with the [Petitioner] when the victim was shot. Mayes
        testified that the [Petitioner] never talked about shooting someone that night.
        At first, Mayes testified that he saw the [Petitioner] put the shotgun in the Jeep
        a few minutes prior to the victim’s shooting at the [Petitioner’s] house. Mayes
        testified that the victim said something to the [Petitioner] before the
        [Petitioner] shot him, but Mayes could not hear the conversation. Upon cross
        examination, Mayes testified that the shotgun was already in the Jeep when he,
        the [Petitioner] and the [Petitioner’s] girlfriend entered the Jeep. Additionally,
        Mayes confirmed his testimony in a prior proceeding that the [Petitioner] kept
        the shotgun in his Jeep most of the time. Mayes did not see the victim with a
        gun, but the [Petitioner] said the victim had a gun. Mayes’s view into the
        victim’s car was partially blocked by the [Petitioner] because Mayes was in the
        back seat of the Jeep. After shooting the victim, the [Petitioner] quickly drove
        away from the scene. The [Petitioner] or his girlfriend threw the shotgun out
        of the Jeep. The [Petitioner] drove himself, his girlfriend and Mayes into
        Kentucky, but they returned a couple of days later.

                The [Petitioner] presented no proof.

State v. Andrew Lee Moats, Jr., aka, Butch Moats, No. 03C01-9805-CR-00184, 1999 WL
595417, at *1-3 (Tenn. Crim. App. Aug. 10, 1999), perm. appeal denied, (Tenn. Jan. 24,
2000).1

        In his direct appeal to this court, the Petitioner challenged the sufficiency of the
evidence supporting his murder conviction, contending that there was inadequate proof of
intent, deliberation, and premeditation. Id. at *1. This court determined that the jury rejected
the Petitioner’s theory of self-defense and that the evidence was sufficient to support the
conviction. Id. at *3-5. The Tennessee Supreme Court denied the Petitioner’s application
for permission to appeal.



1
   The Petitioner was previously convicted of first degree murder for shooting and killing the victim after a
trial in 1991, but that conviction was reversed on appeal and remanded for a new trial. See State v. Andrew
Lee Moats, No. 03C01-9302-CR-00038, 1994 WL 160154 (Tenn. Crim. App. May 2, 1994), perm. app.
granted, (Tenn. Oct. 3, 1994). On September 11, 1995, the Tennessee Supreme Court affirmed the reversal
by this court. See State v. Moats, 906 S.W.2d 431 (Tenn. 1995). The Petitioner was subsequently retried
and convicted of first degree murder on December 3, 1997.


                                                    -4-
       In 2001, the Petitioner filed a pro se petition for post-conviction relief alleging
numerous theories. Counsel was appointed, and an amended petition was filed. At the
evidentiary hearing, post-conviction counsel made an oral motion to withdraw all allegations
in the petition except for the allegation of ineffective assistance of counsel, which the
post-conviction court granted.           See Andrew Lee M oats v. State, No.
E2003-00402-CCA-R3-PC, 2003 WL 22326976, at *3 (Tenn. Crim. App. Oct. 9, 2003);
perm. app. denied, (Tenn. Jan. 26, 2004). After hearing the evidence, the post-conviction
court denied relief. Id.

       On appeal to this court, the Petitioner argued a single claim of ineffective assistance:

       that Counsel’s statement to the Petitioner following his conviction, “I should
       have put you on,” shows by clear and convincing evidence that it was
       Counsel’s unilateral decision to not have the Petitioner testify “that was the
       reason [the Petitioner] was prevented from testifying, which testimony could
       have changed the outcome of the trial.”

Id. at *6. This court affirmed the judgment of the post-conviction court. Id. at *7. The
Petitioner raised two additional grounds during the post-conviction hearing regarding
ineffective assistance of counsel: “(1) failure of Counsel to call the witness Marlene Walker
to testify; and (2) failure of Counsel to advise the Petitioner of a potential plea bargain with
the State.” Id. at *6 n.2. However, the Petitioner waived these additional claims on appeal
for failing to raise them in his appellate brief. Id. (citing Tenn. R. App. P. 13(b); Nichols v.
State, 90 S.W.3d 576, 607 (Tenn. 2002)). Our supreme court denied the Petitioner’s
application for permission to appeal.

       On March 3, 2011, the Petitioner filed a petition for writ of error coram nobis. He
based his claim for relief on alleged newly discovered evidence, specifically (1) a written
statement of Marlene Walker taken by the Knoxville Police Department shortly after the
murder of which the Petitioner was convicted and (2) the criminal history of Richard
Breeden. The Petitioner further submitted that the State failed to disclose this exculpatory
evidence and that the State failed “to reveal all deals with witnesses.” He attached to the
petition Marlene Walker’s statement and documents reflecting relevant portions of Richard
Breeden’s criminal history.

       The Petitioner provided that “the newly discovered evidence may have resulted in a
different judgment had the evidence been admitted at the previous trial” because “the new
evidence establishe[d] that Petitioner acted in self-defense and . . . is actually innocent of
those charges for which he stands convicted.” The Petitioner further stated that “both the
statement and testimony of [Marlene] Walker may have resulted in a different judgment

                                              -5-
because proof in this regard show[ed] that the alleged victim and his friends were stalking
the Petitioner[,]” serving “to rebut any theory that the alleged unlawful killing was the result
of a premeditated act.” He also contended that this statement “show[ed] that [Marlene]
Walker, who had personal knowledge of those facts leading up to the incident, was very
uncooperative” and “blatantly withheld . . . facts from the investigation.” According to the
Petitioner, this statement “also show[ed] that the alleged victim and his friends both warned
and threatened the witness in this cause” prior to the shooting.

        Regarding the witness Richard Breeden, the Petitioner submitted that Breeden
“committed several criminal acts against Marlene Walker to prevent further cooperation
regarding the investigation of this case.” According to the Petitioner, following the above-
referenced interview of Marlene Walker, Breeden was charged with committing the
following offenses against Marlene Walker: aggravated burglary; aggravated assault; and
attempted aggravated rape. He was also charged with possession of a weapon during the
commission of those crimes. The Petitioner argued that “[a]ll of these acts were committed
to instill additional fears of retribution within the witness.”

       The Petitioner then stated that “he was not at fault in failing to present any of the
newly discovered evidence at the appropriate time . . . because the newly discovered evidence
was not known to exist at the time of Petitioner’s trial.” The Petitioner averred that he “had
no knowledge that [Marlene] Walker even gave a statement until September of 2010 when
Petitioner received a copy of the statement”2 and that he “thereafter learned that Richard
Breeden had committed various criminal acts against the witness.”

       Regarding the Petitioner’s claim that the State failed to disclose exculpatory evidence,
the Petitioner contended that the State “unlawfully withheld that statement of [Marlene]
Walker which show[ed] that Petitioner is actually innocent of those charges for which he
stands convicted.” According to the Petitioner, the statement showed that “the alleged
victim and his friends were in possession of weapons as they stalked the Petitioner[,]” that
“they monitored police activity through use of a scanner[,]” and that “they warned and
threatened Ms. Walker to silence her regarding the actual facts of this case.” The Petitioner
further asserted that the State “withheld the prior criminal record of Richard Breeden which
would show that he had both a propensity and motivation to make and, in fact, did make false
allegations against the Petitioner.”

       Finally, the Petitioner asserted that the State failed to “reveal all deals with witnesses”
in violation of his due process rights. Specifically, the Petitioner stated, “The State
improperly entered into an unlawful agreement whereby it agreed to offer and promise and,

2
    In his appellate brief, the Petitioner states that he “accessed” the statement “in 2008.”

                                                       -6-
in fact, offered and promised Richard [Breeden] leniency from criminal prosecution in
exchange for his testimony against Petitioner.” He then noted the charges against Richard
Breeden in relation to Marlene Walker—aggravated burglary, aggravated assault, attempted
aggravated rape, and possession of a weapon—and claimed that Richard Breeden was
“granted leniency from criminal prosecution in this matter in return for his testimony against
Petitioner.” According to the Petitioner, “[t]hese charges were actually reduced to a single
charge of attempted burglary.”

       The State did not file a response to the petition. The Petitioner filed a motion for
default judgment.

      In its May 20, 2011 order summarily dismissing the petition, the coram nobis court
determined that the Petitioner did not state a cognizable claim for relief:

               In support for this ground of relief [P]etitioner has attached a transcript
       of a statement of [Marlene] Walker . . . . Petitioner contends that this is newly
       discovered evidence which, if presented during the trial of his case, would
       probably have caused a different result. This court notes first that the evidence
       is not new. It was obviously known to the police, and therefore to the
       prosecution, almost immediately in the investigation. The fact that [P]etitioner
       did not know about the statement, if true, does not make the evidence newly
       discovered. Further, this court has reviewed the statement and finds that, had
       it been introduced at trial, it would not have affected the result. Viewed in the
       light most favorable to [P]etitioner, the statement only reveals that the victim
       and [P]etitioner were having a dispute over money and that on the day of the
       murder, [P]etitioner and some of his friends made arrangements to meet the
       victim and some of his friends over the issue of the money. The statement
       shows clearly that Ms. Walker believed that [P]etitioner “set up” the victim.
       Petitioner argues that Ms. Walker’s reluctance to discuss whether the victim
       and his friends had weapons proves that he, Petitioner, was the victim of
       armed stalkers and that therefore the killing could not have been premeditated.
       In the statement, [the investigator] states to Ms. Walker that he already knew,
       from other sources, that the victim and at least one of his friends were armed.
       Nothing in the statement suggests that Ms. Walker witnessed the shooting or
       had any other information about it. This court concluded therefore that the
       evidence is not newly discovered and, if presented at trial, would not have
       changed the outcome.

Regarding the failure to disclose exculpatory evidence, the coram nobis court ruled that “the
Brady issue . . . was raised and litigated in [P]etitioner’s petition for post-conviction relief.”

                                               -7-
Thus, “the issue was litigated via another review procedure and therefore cannot be the basis
for a writ of error coram nobis.” The coram nobis court also characterized the Petitioner’s
issue of failure to reveal all deals with witnesses as a Brady issue: “The state’s Brady
obligation is to reveal exculpatory evidence helpful to impeach the state’s witnesses.” The
court again ruled that the Brady issue was previously litigated “in the post-conviction relief
procedure and therefore cannot be the basis for the writ of error coram nobis.” 3

        The Petitioner attempted, unsuccessfully, through motions to persuade the coram
nobis court to reconsider and amend its findings and conclusions supporting summary
dismissal of the petition. We thereafter granted the Petitioner’s motion to waive the untimely
filing of his notice of appeal document. The case is now before us for our review.

                                      ANALYSIS
      A writ of error coram nobis is available to a defendant in a criminal prosecution.
Tennessee Code Annotated section 40-26-105 provides, in pertinent part, as follows:

                (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.

                (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.

Tenn. Code Ann. § 40-26-105(b), (c).

        A 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)
(citation omitted). “The purpose of this remedy is to bring to the attention of the court some
fact unknown to the court which if known would have resulted in a different judgment.”


3
  Because the coram nobis court relied on the post-conviction proceedings in rendering its decision, we take
judicial notice of those proceedings.

                                                    -8-
Freshwater v. State, 160 S.W.3d 548, 553 (Tenn. Crim. App. 2004) (quoting State v. Hart,
911 S.W.2d 371, 374 (Tenn. Crim. App. 1995)). The decision to grant or deny a petition for
writ of error coram nobis rests within the sound discretion of the trial court. Tenn. Code
Ann. § 40-26-105; Hart, 911 S.W.2d at 375.

        To establish that he is entitled to a new trial, the Petitioner must show the following:
(a) the grounds and the nature of the newly discovered evidence; (b) why the admissibility
of the newly discovered evidence may have resulted in a different judgment if the evidence
had been admitted at the previous trial; (c) that the Petitioner was without fault in failing to
present the newly discovered evidence at the appropriate time; and (d) the relief sought.
Hart, 911 S.W.2d at 374-75.

              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.

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

        In State v. Vasques, our supreme court noted that “Tennessee courts have struggled
with the proper standard to be applied in the determination of whether and when coram nobis
relief is appropriate in a criminal case.” 221 S.W.3d 514, 525 (Tenn. 2007). The court
further explained that some courts had looked at whether new evidence “would have”
resulted in a different judgment and some courts had used a “may have” standard. Id. Our
high court reasoned that “the ‘may have’ standard, if interpreted literally, is too lenient in the
common law context of writ of error coram nobis.” Id. at 527. Thus, in Vasques, the
Tennessee Supreme Court clarified the standard that should be used, explaining as follows:

       [W]e hold that in a coram nobis proceeding, the trial judge must first consider
       the newly discovered evidence and be “reasonably well satisfied” with its
       veracity. If the defendant is “without fault” in the sense that the exercise of
       reasonable diligence would not have led to a timely discovery of the new
       information, the trial judge must then consider both the evidence at trial and
       that offered at the coram nobis proceeding in order to determine whether the
       new evidence may have led to a different result. In the Court of Criminal
       Appeals opinion in this case, Judge Joseph M. Tipton described the analysis

                                               -9-
        as follows: “whether a reasonable basis exists for concluding that had the
        evidence been presented at trial, the result of the proceedings might have been
        different.” Although imprecise, our standard, which requires determination of
        both the relevance and the credibility of the discovered information, offers a
        balance between the position of the State and that of the defense. In our view,
        this interpretation upholds the traditional, discretionary authority of our trial
        judges to consider the new evidence in the context of the trial, to assess its
        veracity and its impact upon the testimony of the other witnesses, and to
        determine the potential effect, if any, on the outcome.

Id. at 527-28.

        The statute of limitations for seeking a writ of error coram nobis is one year from the
date the judgment becomes final in the trial court. Tenn. Code Ann. §§ 27-7-103, 40-26-105;
Mixon, 983 S.W.2d at 671. The one-year statute of limitations may be tolled only when
necessary so as not to offend due process requirements. Workman v. State, 41 S.W.3d 100,
103 (Tenn. 2001). The State bears the burden of raising the bar of the statute of limitations
as an affirmative defense. Harris, 102 S.W.3d at 593 (citing Sands v. State, 903 S.W.2d 297,
299 (Tenn. 1995)).

        Based on the record, it is clear that the petition was filed many years after the statute
of limitations had expired. The record contains no pleading filed by the State in response to
the petition,4 and “the statute of limitations [applicable to writs of error coram nobis] is an
affirmative defense which must be specifically plead or is deemed waived.” Harris, 102
S.W.3d at 593; Newsome v. State, 995 S.W.2d 129, 133 n.5 (Tenn. Crim. App. 1998).
However, the failure of the State to specifically plead the affirmative defense of statute of
limitations does not result in waiver of the issue when the petitioner has asked that the statute
of limitations be tolled on due process grounds. Wilson v. State, 367 S.W.3d 229, 234 (Tenn.
2012). In such circumstances, the petitioner cannot reasonably claim a lack of notice or an
opportunity to rebut the defense. Id.

      While the coram nobis court in this case did not summarily dismiss the petition as
time-barred, the State takes the position on appeal that summary dismissal was proper
because the petition was filed outside the one-year limitations period. The State does not
now dispute that it failed to raise the statute of limitations below, but citing to Wilson, 367
S.W.3d at 234, it contends that “the petition reflects that the [P]etitioner was on notice that


4
  We note that the coram nobis court’s order of summary dismissal was filed almost two and half months
after the petition was filed. No responsive pleading had been filed by the State, and the Petitioner had filed
a motion for default judgment due to the State’s failure to file any response.

                                                    -10-
his issues were not raised ‘at the appropriate time.’” The State relies on the portion of the
coram nobis petition where the Petitioner stated that “he was not at fault in failing to present
any of the newly discovered evidence at the appropriate time . . . because the newly
discovered evidence was not known to exist at the time of Petitioner’s trial.” We disagree
with the State that this language is sufficient for us to conclude that the Petitioner was on
notice of the statute of limitations. The language used by the Petitioner simply references
the standard for seeking coram nobis relief and does not mention or imply knowledge of the
one-year statute of limitations or make any argument for tolling based on principles of due
process. Under the circumstances presented here, because the statute of limitations was not
raised as an affirmative defense below, the State is precluded from raising the statute of
limitations on appeal. We will proceed to examine the Petitioner’s claims.5

         The Petitioner raises numerous challenges to the findings of the coram nobis court
on appeal: (1) the coram nobis court abused its discretion “by finding the [Marlene] Walker
statement [was] not newly discovered evidence,” regardless of whether “the Petitioner did
not know about the statement”; (2) the coram nobis court abused its discretion “by finding
the [Marlene] Walker evidence would not have affected the verdict”; and (3) the coram
nobis court abused its discretion by determining that the Brady issue “was raised and litigated
in Petitioner’s post-conviction relief.” We will address the issues in turn.

                              I. Statement of Marlene Walker.
       We agree with the rationale provided by the coram nobis court regarding the statement
of Marlene Walker, i.e, the Petitioner has failed to establish that the evidence was newly
discovered or that it might have resulted in a different judgment had it been presented at trial.
Marlene Walker did not testify at the Petitioner’s trial.6 Even if it is true that the Petitioner
only recently received the written statement, the Petitioner was aware at the time of trial of
what the substance of Ms. Walker’s testimony would have been. In the post-conviction
appeal, this court summarized the Petitioner’s testimony, in relevant part, at the post-
conviction hearing as follows:

        [The Petitioner] stated that he knew of a witness, Marlene Walker, who “was
        a very important person on this case and could have testified in my behalf.”
        The Petitioner testified that “[s]he was a hostile witness, yes, but she was one


5
 Because the statute of limitations was not raised an affirmative defense, we do not have to address whether
due process requires the limitations period to be tolled pursuant to the analysis in Workman.
6
  The State argues that the statement is inadmissible hearsay because Marlene Walker was not called as a
witness at trial. Although true, the Petitioner is using the statement as evidence of what Marlene Walker’s
testimony would have been had she been presented as a witness at his trial.

                                                   -11-
          that could prove that them people had plotted and planned to kill me before
          [the shooting] ever happened.” The Petitioner stated that Counsel knew about
          this witness but never called her to testify. The Petitioner testified that “I
          looked around the courtroom two or three times when we was going through
          trial, and I never s[aw] her.”

Moats, 2003 WL 22326976, at *3. Trial counsel responded to this allegation:

          Counsel testified that he could remember the name Marlene Walker but could
          not remember who she was or what her relationship was to the Petitioner’s
          case. Counsel stated that Marlene Walker “would not have been anyone that
          I would have subpoenaed to testify.”

Id. at *5. This new statement only provides a more complete description of her possible
testimony. Moreover, the post-conviction court considered the issue of trial counsel’s failure
to call Marlene Walker as a witness.7 The Petitioner then appealed to this court raising only
one issue of ineffective assistance of counsel. Therefore, this court treated his allegation as
waived. Id. at *6 n.2.

        It is fundamental that “[t]he [coram nobis] proceeding is confined to errors outside the
record and to matters which were not and could not have been litigated at trial, the motion
for new trial, appeal, or upon post-conviction petition.” Kenneth C. Stomm v. State, No.
03C01-9110-CR-00342, 1992 WL 97081, at *1 (Tenn. Crim. App. May 12, 1992); see also
Tenn. Code Ann. § 40-26-105; Wlodarz v. State, 361 S.W.3d 490, 506 (Tenn. 2012). The
fact that the Petitioner may not have received the statement until 2010 is inconsequential; the
issue of Marlene Walker’s possible testimony was known at trial and raised at the post-
conviction level.

      We agree with the coram nobis court that the statement or the proposed testimony of
Marlene Walker does little to enhance the Petitioner’s argument of self-defense or actual
innocence, i.e., it would not have affected the verdict. In reviewing the sufficiency of the
evidence on direct appeal, this court summarized the evidence as follows:

          Neer testified that during the encounter with the [Petitioner], there were two
          guns in the victim’s car. Mayes testified that the [Petitioner] had a shotgun
          across his lap when he was talking to the victim.




7
    The Petitioner did not call Marlene Walker as a witness at the post-conviction hearing.

                                                    -12-
               When the [Petitioner] approached the victim’s car, he first parked
       directly facing the car with his bright lights shining on the victim and Neer for
       ten to twelve seconds. This time interval gave the [Petitioner] adequate time
       to decide what action he wanted to take next. He pulled his Jeep door-to-door
       with the victim’s car so that he and the victim were in close proximity and
       conversed with the victim while holding a shotgun across his lap. Without any
       evidence of provocation or threatening conduct by the victim, the [Petitioner]
       shot the victim in the face at near point blank range.

               ....

               Based upon the fact that one of the two pistols which were laying on the
       floorboard hump prior to the shooting was found in the floor beneath the
       victim’s body, the [Petitioner] argues that the victim had grabbed the weapon
       and that this circumstance supports his theory of self-defense. Quite possibly
       it does, but the jury has declined to attach any significance to this equivocal
       physical fact of the gun’s discovered position, and no one testified that the
       victim reached for or used the weapon. As pointed out above, the appellate
       court may not reweigh nor reevaluate the evidence.

Moats, 1999 WL 595417, at *4. Here, the jury was presented with evidence that the victim
was armed and rejected the Petitioner’s claim of self-defense, as was their prerogative. In
this regard, the Petitioner has failed to allege the existence of subsequently or newly
discovered evidence that would warrant relief under a writ of error coram nobis.8

                           II. Richard Breeden’s Criminal History
        The Petitioner also alleges that the State violated his constitutional rights under Brady
v. Maryland entitling him to coram nobis relief, by failing to provide Richard Breeden’s
criminal record, which would have disclosed a deal with Richard Breeden in exchange for
his testimony against the Petitioner.

       A petition for a writ of error coram nobis may be an appropriate remedy by which to
seek relief from constitutional errors such as that asserted under Brady v. Maryland.
Freshwater, 160 S.W.3d at 555-56. Under Brady v. Maryland, “suppression by the
prosecution of evidence favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment.” Brady, 373 U.S. at 87. Evidence that
is favorable to an accused includes proof which may be used to impeach the prosecution’s


8
  Based upon the above rationale, we see no need in discuss Marlene Walker’s statement further under a
Brady v. Maryland analysis.

                                                -13-
witnesses. State v. Copeland, 983 S.W.2d 703, 706 (Tenn. Crim. App. 1998) (citing Giglio
v. United States, 405 U.S. 150 (1972)). However, “the evidence is material only if there is
a reasonable probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A ‘reasonable probability’ is a probability sufficient
to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682
(1985).

     Thus, a criminal defendant must satisfy the following four prerequisites in order to
demonstrate a due process violation under Brady v. Maryland:

       1. The defendant must have requested the information (unless the evidence is
       obviously exculpatory, in which case the State is bound to release the
       information whether requested or not);
       2. The State must have suppressed the information;
       3. The information must have been favorable to the accused; and
       4. The information must have been material.

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). The defendant has the burden of proving
a Brady violation by a preponderance of the evidence. Id. “The key to proving a
constitutional violation is to show that the omission is of such significance as to deny the
defendant the right to a fair trial.” Id.

         Again, we agree with the rationale provided by the coram nobis court that the
Petitioner’s Brady claim was previously raised in the post-conviction proceedings. While
it is true that post-conviction counsel waived all issues other than ineffective assistance of
counsel at the post-conviction hearing, the Brady claim was raised in the Petitioner’s pro se
petition for post-conviction relief. In his pro se petition, the Petitioner raised as issues the
failure of the State to disclose exculpatory evidence and the State’s “failure to reveal all deal
with witnesses.” The Petitioner asserted that the State “withheld the prior criminal records
of the State’s witnesses, which would reveal that the witnesses had both a propensity and a
motivation to make and, in fact, did make false allegations against Petitioner, in exchange
for favorable treatment being rendered to them by virtue of the deals.” Although the
Petitioner is more specific in his coram nobis petition, specifically naming Richard Breeden,
this is the same claim as raised in the pro se petition for post-conviction relief.

        The issue is not whether the claim was actually litigated at the post-conviction level,
but when the Petitioner, through the exercise of reasonable diligence, actually discovered the
information. The Petitioner was clearly aware by the time he filed his pro se petition for
post-conviction relief in 2001of any deal Richard Breeden made with the State in exchange
for his testimony.

                                              -14-
        Again, we note that “[t]he [coram nobis] proceeding is confined to errors outside the
record and to matters which were not and could not have been litigated at trial, the motion
for new trial, appeal, or upon post-conviction petition.” Kenneth C. Stomm v. State, No.
03C01-9110-CR-00342, 1992 WL 97081, at *1 (Tenn. Crim. App. May 12, 1992); see also
Tenn. Code Ann. § 40-26-105; Wlodarz, 361 S.W.3d at 506. The coram nobis court properly
denied relief where the coram nobis petition was based, in part, on an issue that was included
in the Petitioner’s post-conviction petition. The Petitioner cannot show that he was without
fault in failing to present the evidence at the proper time as required by Hart. 911 S.W.2d
at 374-75.

                                       CONCLUSION
       Based on the foregoing authorities and reasoning, we affirm the summary dismissal
of the petition for writ of error coram nobis.




                                                    _________________________________
                                                    D. KELLY THOMAS, JR., JUDGE




                                             -15-
