        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs June 12, 2012

               BRENDA HOLLIMAN v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 02-00684-85    W. Otis Higgs, Jr., Judge


               No. W2011-01071-CCA-R3-CO - Filed August 31, 2012


A Shelby County jury convicted petitioner, Brenda Holliman, of first degree murder and
conspiracy to commit first degree murder. The trial court sentenced her to life imprisonment
without the possibility of parole. Subsequently, she filed the instant petition for a writ of
error coram nobis, claiming that a co-defendant recanted statements he made at his guilty
plea hearing and that the recantation constitutes newly discovered evidence. The coram
nobis court summarily dismissed the petition based on the statute of limitations. Following
our review, we reverse the judgment of the coram nobis court and remand the matter for an
evidentiary hearing.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court
                            Reversed and Remanded

R OGER A. P AGE, J., delivered the opinion of the court, in which R OBERT W. W EDEMEYER and
J EFFREY S. B IVINS, JJ., joined.

Paul K. Guibao, Memphis, Tennessee, for the appellant, Brenda Holliman.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Theresa McCusker and Kirby May,
Assistant District Attorneys General, for the appellee, State of Tennessee.


                                        OPINION

                                   I. Procedural History

     Following an unsuccessful direct appeal to this court, State v. Brenda Holliman, No.
W2003-01736-CCA-R3-CD, 2005 WL 819735 (Tenn. Crim. App. April 8, 2005), perm. app.
denied (Tenn. Oct. 24, 2005), petitioner filed a timely petition for post-conviction relief.1
While the post-conviction petition was pending, petitioner filed this petition for a writ of
error coram nobis on March 26, 2010.

       In her petition for a writ of error coram nobis, petitioner raises for the first time a
claim of newly discovered evidence based on the recantation of her co-defendant James
Rodney Mills. On August 24, 2009, a reporter from a Memphis television channel
interviewed Mills. During the interview, Mills recanted statements he made at his guilty plea
hearing implicating petitioner in the first degree murder and conspiracy to commit first
degree murder. He stated that he exaggerated petitioner’s involvement to avoid the death
penalty. Petitioner amended her petition in June 2010 to include a sworn statement from
Mills to that effect.

        In the statement, Mills said that he and co-defendant Faglier met with petitioner and
told her they were going to kill her husband, and they would kill her if she did not “go along”
with their plan. He further stated that after he and Faglier killed petitioner’s husband, they
told her that if she made any mistakes when she spoke with police, one of them would kill
her before police could arrest them both. He said that when he was indicted, members of the
district attorney general’s office and his attorney told him he would receive the death penalty
for his crimes. For that reason, he said whatever “they” wanted him to say. He accused
Faglier of lying about petitioner’s involvement to save himself. Finally, he stated that
petitioner is lucky to be alive because Faglier wanted to kill her when they did not receive
the insurance money.

       The State defended the petition by raising the one-year statute of limitations. The
State argued that the judgment denying petitioner’s motion for new trial was entered on
March 28, 2003; therefore, the one-year statute began to run on April 28, 2003, and expired
on April 28, 2004. Petitioner responded that the statute of limitations should be tolled in the
interest of due process.

       The coram nobis court held a hearing on the petition on August 10, 2010. The sole
issue argued during the hearing was the timeliness of petitioner’s filing, i.e., whether the
court should toll the applicable one-year statute of limitations. The court took the matter
under advisement, during which time petitioner filed a pleading entitled “Statement in
Support of Tolling Statute of Limitations for Petition for Relief Under Writ of Error Coram



        1
        Petitioner’s appeal from the denial of post-conviction relief was resolved unfavorably to petitioner
on August 9, 2012. Brenda Holliman v. State, No. W2011-00201-CCA-R3-PC, 2012 WL 3249606 (Tenn.
Crim. App. Aug. 9, 2012).

                                                    -2-
Nobis” on November 15, 2010. The coram nobis court entered an order dismissing the
petition on April 8, 2011. This appeal follows.

                                         II. Analysis

                                   A. Standard of Review

        The decision to grant or deny a petition for writ of error coram nobis on its merits is
left to the sound discretion of the trial court. Harris v. State, 301 S.W.3d 141, 144 (Tenn.
2010) (citing State v. Vasques, 221 S.W.3d 514, 527-28 (Tenn. 2007)). A trial court abuses
its discretion when it applies incorrect legal standards, reaches an illogical conclusion, bases
its decision on a clearly erroneous assessment of the evidence, or employs reasoning that
causes an injustice to the complaining party. State v. Ruiz, 204 S.W.3d 772, 778 (Tenn.
2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn. 2006)). The writ of error coram
nobis is an “extraordinary procedural remedy . . . into which few cases fall.” State v. Mixon,
983 S.W.2d 661, 672 (Tenn. 1999). Our legislature has limited the relief available through
the writ:

               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 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.

Tenn. Code Ann. § 40-26-105(b) (Supp. 2011). To demonstrate she is entitled to coram
nobis relief, petitioner must clear several procedural hurdles.

         First, the 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. 1995) (citing State v. Hart, 911 S.W.2d 371,
374-75 (Tenn. Crim. App. 1995)). The record reflects that petitioner complied with the
initial requirements in her petition for relief.



                                              -3-
        Next, a petition for writ of error coram nobis must generally be filed within one year
after the judgment becomes final. Tenn. Code Ann. § 27-7-103 (2000). When a petition is
filed outside of the statute of limitations, the coram nobis court must determine whether due
process requires tolling. State v. Harris, 301 S.W.3d 141, 145 (Tenn. 2010). In doing so,
the “court must weigh the petitioner’s interest in obtaining a hearing to present a later-arising
ground for relief against the State’s interest in preventing stale and groundless claims.” Id.
(citing Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001)). A court should utilize the
following three-step analysis to balance the competing interests:

       (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.

Id. (citing Sands v. State, 903 S.W.2d 297, 301 (Tenn.1995)).

       As previously noted, the coram nobis court held a hearing on the sole issue of whether
the statute of limitations should be tolled in this case. The court held that there was an
“unreasonable delay” in petitioner’s filing of her petition for relief and that the period
“exceed[ed] the reasonable opportunity afforded by due process,” thus denying her the
opportunity for a hearing on the merits.

        Our analysis of the coram nobis court’s ruling involves application of the factors set
forth in Harris, supra. It is undisputed that the one-year statute of limitations began on April
28, 2003, and expired on April 28, 2004. Petitioner filed her petition on March 26, 2010, and
argued in the coram nobis court that the statute of limitations should be tolled in the interest
of due process. We find, from our review of the record, that petitioner’s asserted grounds
for relief arose after the limitations period would have commenced. The news reporter did
not interview co-defendant Mills until August 24, 2009. From the information available in
the record, the August 24, 2009 interview was the first statement given by Mills in which he
recanted the testimony he gave at his guilty plea hearing. Petitioner filed her petition for
coram nobis relief on March 26, 2010. Thus, there was no unreasonable delay in filing the
petition after the newly discovered evidence became known. Finally, we conclude that “a
strict application of the limitations period would effectively deny the petitioner a reasonable
opportunity to present the claim.” Id. Accordingly, we reverse the coram nobis court’s

                                               -4-
ruling that petitioner’s later-arising claim is barred by the statute of limitations and remand
for a hearing on the merits of her claim.

        We recognize that co-defendant Mills did not testify at petitioner’s trial and that any
statement or testimony he offers at the coram nobis hearing would be largely impeaching in
nature because it would refute much of the testimony of the State’s primary material witness,
Faglier. However, “whether the testimony qualifies as impeachment evidence may be
relevant in the determination but is not controlling.” Vasques, 221 S.W.3d at 527. Our
supreme court has noted that “a complete restriction on the availability of coram nobis relief
in the case of any newly discovered impeachment evidence would be inconsistent with the
discretion afforded to our trial courts.” Id. Thus, on remand, the ultimate question is the
effect of the newly discovered evidence on the outcome of petitioner’s case when viewed
under the standards set forth by the court in Mixon, Workman, and Vasques. Id.

                                      CONCLUSION

       Upon review of the record and the prevailing legal authorities, we reverse the
judgment of the coram nobis court summarily dismissing the petition and remand for a merits
hearing on the petition for a writ of error coram nobis.

                                                    _________________________________
                                                    ROGER A. PAGE, JUDGE




                                              -5-
