           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                        NOVEMBER 1997 SESSION              FILED
                                                               April 24, 1998
JIMMY EISOM,                *      C.C.A. # 02C01-9703-CC-00105
                                                        Cecil Crowson, Jr.
                                                           Appellate C ourt Clerk
      Appellant,            *      LAKE COUNTY

VS.                         *      Hon. Joe G. Riley, Jr., Judge

STATE OF TENNESSEE,         *      (Post-Conviction)

      Appellee.             *




For Appellant:                     For Appellee:

William D. Massey                  John Knox Walkup
3074 East Street                   Attorney General & Reporter
Memphis, TN 38128
                                   Deborah A. Tullis
John E. Herbison                   Assistant Attorney General
2016 Eighth Avenue, South          450 James Robertson Parkway
Nashville, TN 37204                Nashville, TN 37243-0493

                                   C. Phillip Bivens
                                   District Attorney General
                                   P.O. Drawer E
                                   Dyersburg, TN 38024




OPINION FILED:_____________________




AFFIRMED




GARY R. WADE, JUDGE
                                        OPINION

              The petitioner, Jimmy Eisom, appeals the trial court's denial of post-

conviction relief. He was convicted of second degree murder and received a life

sentence. This court affirmed and the supreme court denied review. State v. Jimmy

Eisom and Michael D. Williams, No. 5 (Tenn. Crim. App., at Jackson, Nov. 12,

1986), app. denied, (Tenn., Mar. 9, 1987). In 1989, the petitioner filed his first

petition for post-conviction relief alleging ineffective assistance of counsel. The trial

court denied relief. This court affirmed. Michael W illiams and Jimmy Eisom v.

State, No. 02C01-9107-CC-00154 (Tenn. Crim. App., at Jackson, June 3, 1992).



              In this second petition, filed May 10, 1996, the petitioner claims that his

second degree murder conviction should be set aside and that he should be granted

a new trial because the state failed to correct false testimony and failed to disclose

exculpatory evidence. In denying relief, the trial court determined that the nature of

the testimony at issue did not require either a disclosure or correction. It also ruled

that the claims were barred by the statute of limitations and by the doctrine of

waiver.



              We affirm the judgment of the trial court.



              A brief review of the convicting evidence, as taken from our prior

opinion on direct appeal, is helpful:

              The defendants were both inmates at the Lake County
              Regional Correctional Facility as was the victim, Bruce
              Easley. The defendants were convicted of stabbing
              Easley to death.
                     Both the State and the defendants introduced
              several witnesses who testified that they saw all or part
              of the commission of this homicide. The State's
              witnesses established that the victim, Easley, was in
              back of Guild # 3 (dormitory) when the defendants
              approached him. Eisom approached the victim from the

                                            2
              front and Williams approached the victim from the rear.
              The victim started to walk around Eisom and Eisom
              stopped him. After a brief conversation between Eisom
              and the victim, Eisom commenced stabbing the victim in
              the front of his body. The victim moved backwards and
              Williams proceeded to stab the victim in the back. The
              defendants then wiped their knives in the grass and ran.
              The victim walked toward the clinic and fell.

                                          ***
                     The State's witnesses testified that the victim
              made no assault on either of the defendants.
                     The defense witnesses testified that the victim had
              made homosexual advances toward Williams on
              previous occasions. At the time of the homicide, ... the
              victim pulled a knife and made an assault on Williams.
              Williams drew his knife and began "swinging" it towards
              the victim in self-defense. Eisom attempted to stop the
              fight without success. Eisom had no knife according to
              defense witnesses.
                     The jury resolved the sharp conflict in the
              evidence.

State v. Eisom, slip op. at 2-3.



              Donnie Kirkland, convicted of first-degree murder and serving a life

sentence in the Department of Corrections, was a state witness at the trial. At the

post-conviction hearing, he testified that he was asked whether he had been

promised anything in exchange for his testimony. He recalled that his response was

that he had been "promised protection" and nothing more. He insisted this portion

of his trial testimony was false.



              Kirkland claimed that on the day after the stabbing, he told

investigators that he did not see anything. He contended that he was shown a

statement of two other inmates, Ralph Miller and Michael Nolen, both of whom later

testified at trial, and was asked by officers to write out a statement to resemble

those. He complied with their request. Kirkland testified at the post-conviction

hearing that he did not see the stabbing and that he swore falsely at trial "[b]ecause

they told me that would give me a time cut."

                                           3
              Kirkland also claimed that the District Attorney's office hinted that they

would seek his transfer to federal prison or to another state prison system. He

contended that on four or five occasions before and after the petitioner's trial, then

Assistant District Attorney General Mack McCoin gave him twenty dollars. He

testified that he was also given special phone privileges in that he "was allowed to

use the phone ... any time [he] wanted to." He claimed that he used the District

Attorney's credit card to make long distance phone calls about ten times.



              Kirkland contended that when he met with prosecutors several days

before trial so that they could go over his testimony, he acknowledged that his

statement was not true. Kirkland testified that he spoke with his own attorney, Don

Reed, about the matter to make sure he "didn't get messed out of [his] time credit."

Kirkland remembered that he contacted the petitioner at his first opportunity in July

of 1996 to advise him that he would be willing to testify at the evidentiary hearing.



              The petitioner, who conceded that he had filed a prior petition for post-

conviction relief which was ruled upon in 1991, testified that he did not learn until

1995 or 1996 that the state might have failed to correct the false testimony and

might have failed to reveal exculpatory evidence. He claimed that his appointed

counsel in the first petition had no knowledge that the inmates had any evidence

helpful to him.



              Mark Fowler, the petitioner's trial counsel, testified that he did not

recall anyone saying that Kirkland may not have been present during the stabbing.

Attorney Fowler specifically recalled asking the state to disclose any deals made

with witnesses who were going to testify at the trial.




                                            4
              Mack McCoin, who at the time of this hearing was in the private

practice of law, participated in the prosecution of the petitioner as an assistant

district attorney general. He testified that Kirkland had never given any indication

that his pretrial statement was false. Attorney McCoin described Kirkland at the time

of trial as a fearful, young, white male serving a life sentence. He remembered that

the homicide "occurred between several blacks in the prison" and he recalled there

was considerable racial polarization in the prison. While McCoin acknowledged that

he offered protection for Kirkland and discussed moving him to a different prison if

necessary, he insisted that he had made no promises of a sentence reduction or

work release. While conceding it was possible that Kirkland had been given small

amounts of money for personal items, McCoin asserted there was never an

agreement that he would be paid for his testimony. He did acknowledge that

Kirkland was allowed to call his mother and his attorney Reed regularly, but denied

that the phone privileges were offered in exchange for testimony. While admitting

that it was likely the state paid for the phone calls, McCoin denied providing Kirkland

with his credit card number.



              Attorney McCoin did acknowledge that the District Attorney's office

wrote a letter, dated January 2, 1986, to Steve Norris, Commissioner of Corrections,

which included the following:

              Before testifying Kirkland was guaranteed that he would
              be taken out of the state system under the interstate
              compact or transferred to a Federal Prison, if accepted.
              His preference is for a federal prison and your
              department, through Ron Bishop, assured Assistant
              District Attorney[s] Ingram and McCoin that every effort
              would be made to effectuate his preference for a federal
              facility. ...
                       With the approval of Ron Bishop, inmate Michael
              Nolan was promised that he would be transported to
              Knoxville work release with a back up of Shelbyville work
              release if there was an incompatible at Knoxville.

(Emphasis in original).

                                           5
              He also admitted that in 1988, while still employed by the District

Attorney's office, he wrote a letter to the Board of Paroles requesting leniency for

Kirkland. McCoin conceded that parole qualified as a form of sentence reduction.

He insisted, however, that the letter to the Parole Board was written only because

he felt Kirkland deserved consideration. He specifically recalled that after the trial

Kirkland spent considerable time in "the hole" because that was the only form of

protection the state could or would offer. He claimed that he tried to help with parole

well after the petitioner's trial because he felt the Department of Corrections had

treated Kirkland badly.



              Attorney William Randolph testified that he had been appointed to

represent the petitioner in the first petition for post-conviction relief. He recalled that

the District Attorney's office maintained an open file policy when he filed the petition,

but he had no recollection of either reviewing the file or seeing copies of the letters

written to the Commissioner of Corrections or the Parole Board. He recalled hearing

rumors that Kirkland had been promised a transfer to the federal system, but he

could never find any proof of that.



              Roger Hughes, an investigator for the TBI, testified that he had

investigated the Easley murder and recalled his interview of Kirkland. Agent Hughes

testified that Kirkland never advised him that he did not witness the stabbing.



              Inmate Michael Nolen did not testify at the evidentiary hearing. At trial,

however, he testified that he was to be "put in protection somewhere" by the state

and that he would be "transferred for [his] own protection." The letter from the

District Attorney's office to the Department of Corrections confirmed that Nolen was

guaranteed he would receive work release.


                                             6
              At the conclusion of the evidentiary hearing, the trial court made the

following findings of fact:

              Donnie Kirkland's testimony
              Petitioner alleges the state failed to disclose the full
              extent of promises made to witness Donnie Kirkland and
              failed to correct his false testimony. In response to trial
              counsel's request for "the nature of any preferential
              treatment or other general consideration" promised state
              witnesses, the state responded that the only promise was
              one of protection which could include transfers. Kirkland
              indicated in his testimony that he had been guaranteed
              protection.

                      Prior to trial there had been discussions by state
              officials with Kirkland about the possibilities of
              transferring him to another state under the Interstate
              Compact Act or perhaps being transferred to a federal
              prison. The failure of the state to disclose these possible
              locations is not a failure to disclose exculpatory evidence.
              There has been no showing that there is a reasonable
              probability the result would have been any different if
              these details had been disclosed. Furthermore,
              Kirkland's testimony stating that the only promise was
              one of protection was not such that would require the
              state to correct this testimony by giving further details of
              possible locations of transfers.

                      Petitioner also alleges there were various other
              promises made to Kirkland, including clemency, time
              cuts, monetary payments, phone privileges, etc.
              Although there may have been phone privileges
              extended to Kirkland to speak with his attorney, this
              information would not be required to be revealed as
              exculpatory evidence. Other allegations concerning
              promises made to Kirkland are not supported by clear
              and convincing evidence. Likewise, the allegation that
              the prosecuting attorneys had been told that Kirkland's
              pretrial statement was false is not supported by clear and
              convincing evidence.

                             Accordingly, the allegations as to the state's
              failure to disclose exculpatory evidence relating to
              Kirkland are without merit.

                      Furthermore, this issue has been waived by the
              failure to raise the issue in the first post-conviction relief
              hearing. The district attorney maintained an open-file
              policy at the time of the first post-conviction relief
              hearing. The file contained the 1986 letter from the
              district attorney general relating to possible transfers of
              Kirkland. The file also contained the 1988 letter from the
              assistant district attorney general recommending parole

                                            7
              consideration. This issue has been waived pursuant to
              T.C.A. § 40-30-206(g). Furthermore, the three-year
              statute of limitations expired prior to 1995.

(Emphasis added).



              The trial court made almost identical findings regarding allegations

about Michael Nolen.



                                            I

              The petitioner's first issue is that the state should have corrected the

false testimony of trial witnesses Donnie Kirkland and Michael Nolen. See Giglio v.

United States, 405 U.S. 150 (1972). He claims that both witnesses testified at trial

that they had merely been promised "protection." He claims their testimony was

misleading and contends that the evidence at the post-conviction hearing

established that Kirkland had been "guaranteed that he would be taken out of the

state system ... or transferred to a Federal Prison" and that Nolen had been

"promised that he would be transported to Knoxville work release" (citing the letters

written by the District Attorney's office post-trial). He argues that the prosecutors

failed to correct this misleading testimony and, in consequence, that he should

receive a new trial.



              Under our statutory law, the petitioner bears the burden of proving his

allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210(f). On

appeal, the findings of fact made by the trial court are conclusive and will not be

disturbed unless the evidence contained in the record preponderates against them.

Brooks v. State, 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on

the petitioner to show that the evidence preponderates against those findings.

Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).


                                            8
              "[T]he state's knowing use of false testimony to convict an accused is

violative of the right to a fair and impartial trial as embodied in the Due Process

Clause of the Fourteenth Amendment to the United States Constitution and Article I,

§§ 8 and 9 of the Tennessee Constitution." State v. Spurlock, 874 S.W.2d 602, 617

(Tenn. Crim. App. 1993). When a state witness gives false testimony either on

direct or during cross-examination, the state has the absolute duty to correct that

testimony. Giglio, 405 U.S. 150; Napue v. Illinois, 360 U.S. 264 (1959). In our view,

the evidence did not preponderate against the trial court's conclusion that any

specifics relating to the promises of protection did not need to be corrected or the

determination that the phone privileges did not need to be reported.



              Also, the doctrine of waiver would bar the claim. So would the statute

of limitations. The trial judge made the specific finding that the letter detailing the

promises of transfer was in the District Attorney's case file when the first post-

conviction petition was filed. He also found as fact that the District Attorney's office

maintained an open file policy. The evidence does not preponderate otherwise.

Brooks, 756 S.W .2d at 289. Thus, these claims were available and could have

been presented in the first petition.



              The post-conviction statute in effect when the petition was filed defines

waiver:

              (g) A ground for relief is waived if the petitioner
              personally or through an attorney failed to present it for
              determination in any proceeding before a court of
              competent jurisdiction in which the ground could have
              been presented unless:

              (1) The claim for relief is based upon a constitutional
              right not recognized as existing at the time of trial if either
              the federal or state constitution requires retroactive
              application of that right; or

              (2) The failure to present the ground was the result of

                                            9
              state action in violation of the federal or state
              constitution.

Tenn. Code Ann. § 40-30-206(g). Our supreme court has held that "the rebuttable

presumption of waiver is not overcome by an allegation that the petitioner did not

personally, knowingly, and understandingly fail to raise a ground for relief." House

v. State, 911 S.W.2d 705, 714 (Tenn. 1995). The court continued, "[w]aiver in the

post-conviction context is to be determined by an objective standard under which a

petitioner is bound by the action or inaction of his attorney." Id. Clearly, because

the prosecutor maintained an open file policy during the time the first petition was

filed, this claim was available at that time. There was no state action which

impermissibly barred the petitioner from previously asserting this claim during his

first petition. See Tenn. Code Ann. § 40-30-206(g)(2).



              The new Post-Conviction Procedure Act provides that the petitioner

"must petition for post-conviction relief under this part within one (1) year of the date

of the final action of the highest state appellate court to which an appeal is taken or,

if no appeal is taken, within one (1) year of the date on which the judgment became

final." Tenn. Code Ann. § 40-30-202(a). The supreme court denied review in this

case on March 9, 1987. Thus, this petition, filed in 1996, was not timely.



              Originally, the Post-Conviction Procedure Act of 1967 did not include a

statute of limitations. Effective July 1, 1986, the General Assembly adopted a

three-year statute of limitations. Tenn. Code Ann. § 40-30-102 (repealed 1995). In

consequence, any petitioner whose judgment had become final before July 1, 1986,

had only three years thereafter to file a petition for post-conviction relief. State v.

Masucci, 754 S.W.2d 90 (Tenn. Crim. App. 1988).



              Here, the petitioner was subject to that three-year statute of limitations

                                            10
beginning "the date of the final action of the highest state appellate court to which

an appeal [was] taken...." Tenn. Code Ann. § 40-30-102 (repealed 1995). The

1995 amendment did not enlarge the time within which this petitioner could file, as

"the enabling provision ... is not intended to revive claims that were barred by the

previous [three-year] statute of limitations." Carter v. State, 952 S.W.2d 417, 420

(Tenn. 1997).



              In Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992), our supreme

court held that in certain situations application of the statute of limitations in a

post-conviction proceeding would violate due process. In determining whether there

has been a violation of due process, the essential question is whether the time

period allowed by law provides petitioner a fair and reasonable opportunity to file

suit. Id. In Burford, the petitioner could not file within the three-year limitation

absent a determination on his prior post-conviction petition. Our supreme court

ruled that Burford was "caught in a procedural trap and unable to initiate litigation ...

despite the approach of the three-year limitation." Id. There was no such trap here.



              In Sands v. State, 903 S.W.2d 297 (Tenn. 1995), our supreme court

further defined how to apply the Burford test. Courts must:

              (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 (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. In making this final determination, courts
              should carefully weigh the petitioner's liberty interest in
              "collaterally attacking constitutional violations occurring
              during the conviction process," against the state's
              interest in preventing the litigation of "stale and
              fraudulent claims."

Sands, 903 S.W.2d at 301 (citations omitted) (quoting Burford, 845 S.W.2d at 207,


                                            11
208).



              By the use of these guidelines, we have first determined that the

limitations period for this petitioner's convictions began in March, 1987, when the

supreme court denied the application for permission to appeal. Second, the

petitioner's Giglio claim was based on evidence available in the District Attorney's

file when the petitioner filed his first post-conviction petition in 1989. The petitioner,

through his attorney, had access to this file. Thus, the violations could not qualify as

late arising grounds. The record indicates that nothing prevented the petitioner from

raising the issue before the three-year period of opportunity expired.



              This court has held that the state's suppression of evidence may

qualify as a Burford exception to the statute of limitations. Wooden v. State, 898

S.W.2d 752 (Tenn. Crim. App. 1994). Even if the state had failed to disclose certain

of the relevant evidence before trial, it maintained an open file policy during the time

the first post-conviction petition was filed and this information was available to the

petitioner or his counsel in 1989.



                                            II

              The petitioner also argues that the state suppressed exculpatory

information. See Brady v. Maryland, 373 U.S. 83 (1963). He specifically contends

that the following exculpatory material should have been disclosed:

              (a) that the state had promised its witnesses transfers to
              more comfortable prison facilities;

              (b) that Kirkland was furnished cash before and after
              trial;

              (c) that Kirkland received special phone privileges; and

              (d) that Kirkland initially stated he did not witness the
              stabbing and that he was advised to write a statement

                                            12
              similar to those given by other witnesses.



              In Brady, the United States Supreme Court ruled that the prosecutor

has a duty to furnish exculpatory evidence to the defendant. Exculpatory evidence

may pertain to the guilt or innocence of the accused and/or the punishment which

may be imposed if the accused is convicted of the crime. State v. Marshall, 845

S.W.2d 228 (Tenn. Crim. App. 1992).



              Any "suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is material either to

guilt or punishment, irrespective of the good faith or bad faith of the prosecution."

Brady, 373 U.S. at 87. This duty to disclose extends to all favorable information

irrespective of whether the evidence is admissible. Branch v. State, 469 S.W.2d

533 (Tenn. Crim. App. 1969). And, while Brady does not require the state to make

an investigation for the defendant, it does burden the prosecution with the

responsibility of disclosing statements of witnesses favorable to the defense. State

v. Reynolds, 671 S.W.2d 854, 856 (Tenn. Crim. App. 1984). The duty does not

extend to information that the defense already possesses or is able to obtain or to

information not in the possession or control of the prosecution. Banks v. State, 556

S.W.2d 88, 90 (Tenn. Crim. App. 1977).



              Before this court may find a due process violation under Brady, the

following elements must be established:

              (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

                                           13
                  accused; and

                  (4) the information must have been material.

State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995) (as amended on rehearing); see

also Kyles v. Whitley, 514 U.S. 419 (1995) (setting forth the standard for

determining materiality).



                 As previously indicated, any claim based on promises of transfers to

different prison facilities has been waived and is also barred by the statute of

limitations. The trial court, which characterized the phone privileges as merely

allowing Kirkland to talk to his attorney, ruled that this information would not qualify

as exculpatory evidence. We tend to agree. That Kirkland was allowed to speak

with his attorney or his mother is not exculpatory evidence. See Edgin, 902 S.W.2d

at 390. As for the remaining allegations, the trial court, after hearing testimony pro

and con, found the particular claims were not established by clear and convincing

evidence. Because the trial judge who sees and hears the witnesses is in a better

position to determine their credibility, his factual findings are binding on this court

unless the evidence preponderates otherwise. Brooks, 756 S.W.2d at 289. It does

not.1



                  Accordingly, the judgment of the trial court is affirmed.




        1
           This pe tition was filed u nder the new Ac t, which allow s for only on e petition. Th e appro priate
proced ure wou ld be to file a m otion to reo pen. See Tenn. Code Ann. § 40-30-202(c). The grounds
for filing a motion to reopen are very limited. One may be filed only if one of the following conditions
are established: a new constitutional rule is established; new scientific evidence shows actual
innocence; or an enhanced sentence is no longer valid because a prior conviction has been found
invalid. Tenn. Code Ann. § 40-30-217(a). The petitioner filed a previous petition which was resolved
on the merits. Under Tenn. Code Ann. § 40-30-202(c), the trial court could have summarily dismissed
this seco nd petition. See gene rally Fletche r v. State , 951 S.W.2d 378 (Tenn. 1997) (discussing the
approp riate proc edure fo r filing a mo tion to reop en and ruling the su prem e court h as jurisdic tion to
review the trial court's dismissal of a motion to reopen). No grounds are alleged in this petition which
would m eet the stric t requirem ents for a motion to reope n.

                                                      14
                                 __________________________________
                                 Gary R. Wade, Judge

CONCUR:



______________________________
Paul G. Summers, Judge



______________________________
David G. Hayes, Judge




                                 15
