                                                                                                        05/14/2020
            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                                    January 14, 2020 Session

                    RUDOLPH MUNN v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Rutherford County
                        No. 80282, F-35862 Royce Taylor, Judge
                       ___________________________________

                               No. M2018-02240-CCA-R3-ECN
                           ___________________________________

In 1999, a jury convicted the Petitioner, Rudolph Munn, of killing his college roommate,
Andrew Poklemba. State v. Munn, 56 S.W.3d 486, 489 (Tenn. 2001). This court
affirmed his conviction of first-degree premeditated murder, see State v. Rudolph Munn,
No. 01C01-9801-CCA-00007, 1999 WL 177341, at *1 (Tenn. Crim. App. Apr. 1, 1999);
however, a dissenting judge would have remanded the matter for a new sentencing
hearing. Id. (Tipton, dissenting). The Tennessee Supreme Court agreed that a new
sentencing hearing was necessary and held, inter alia, that the Petitioner had a lawful
expectation of privacy, and thus, police secret videotaping of the Petitioner’s
communications with his parents constituted an illegal seizure under the federal and state
constitutions, as well as under the federal and state wiretapping statutes. Munn, 56
S.W.3d 486. Upon remand in 2002, the Petitioner received a sentence of life without
parole.1 Sixteen years later, on November 13, 2018, the Petitioner filed a petition for writ
of error coram nobis, arguing that one of his trial counsel was “slightly biased” based
upon his “unequivocal ties” to the university attended by the Petitioner and the victim at
the time of the offense. The Petitioner further alleged that he was entitled to due process
tolling of the statute of limitations because he became aware of these ties on or about
November 17, 2017. Two days after the petition was filed, it was summarily dismissed
by the coram nobis court as untimely and unsupported by due process considerations to
toll the statute of limitations. The Petitioner now appeals, and upon our review, we
affirm.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and J. ROSS DYER, JJ., joined.

        1
          There is not a judgment in the record on appeal showing the disposition of the Petitioner’s case
following the remand by the Tennessee Supreme Court for a new sentencing hearing. However, the
Petitioner’s brief notes that on July 26, 2002, a Rutherford County jury “returned a sentence of life in
prison without the possibility of parole.”
Cameron L. Hyder, Elizabethton, Tennessee, for the Petitioner, Rudolph Munn.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior
Assistant Attorney General; and Jennings H. Jones, District Attorney General, for the
Appellee, State of Tennessee.

                                         OPINION

        The Petitioner does not contest the untimeliness of the filing of his petition for writ
of error coram nobis and focuses solely upon equitable tolling of the one-year statute of
limitations. See Tenn. Code Ann. § 27-7-103 (“The writ of error coram nobis may be
had within one (1) year after the judgment becomes final by petition presented to the
judge at chambers or in open court, who may order it to operate as a supersedeas or
not.”); Nunley v. State, 552 S.W.3d 800, 826-828 (Tenn. 2018) (A petition for a writ of
error coram nobis may be summarily dismissed if it fails to show on its face that it has
been timely filed because the timely filing requirement in Code section 27-7-103 is an
essential element of a coram nobis claim.). The Petitioner argues that due process
requires tolling of the statute based upon trial counsel’s “strong affiliation” with the
university. Throughout his brief, the Petitioner refers to unspecified “questionable
information,” which he alleges compromised his defense strategy at trial. The Petitioner
also argues that he received “ineffective assistance of counsel as his defense strategy in
this serious case may easily have been biased due to [trial counsel’s] connections with the
university.” Finally, the Petitioner suggests that the coram nobis court did not properly
review “the voluminous and complex argument” in this case because the order dismissing
the matter was issued “a mere two days after the filing.” As such, the Petitioner argues
that, “given additional time [] to file a petition . . . newly discovered evidence and
information, if known, and presented at the time of trial, would have resulted in a
different outcome.”

        In response, the State contends that the Petitioner has “failed to state with
particularity the grounds for due process tolling or his newly-discovered evidence[.]”
The State points out that the Petitioner’s newfound discovery of trial counsel’s affiliation
with the university lacks any specifics and fails to satisfy the requirements of State v.
Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App. 1995) and State v. Nunley, 552 S.W.3d
800, 831, n.26 (Tenn. 2018). The coram nobis petition did not contain an attached
affidavit, an explanation as to why the Petitioner only recently learned of trial counsel’s
alleged affiliation with the university, or how it affected the Petitioner’s case. Moreover,
even assuming that tolling was justified, the State posits that the Petitioner failed to assert
what evidence would have changed the outcome in this case. The State further argues
that the Petitioner was represented by two other attorneys at trial and that the Petitioner is
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essentially seeking to litigate an ineffective assistance of counsel claim in a coram nobis
petition, which is improper. See Dellinger v. State, No. E2013-02094-CCA-R3-ECN,
2015 WL 4931576, at *12 (Tenn. Crim. App. Aug. 18, 2015). Based on these arguments,
the State submits that summary dismissal by the coram nobis court was proper. We agree
with the State.

        A writ of error coram nobis is available to convicted defendants based on
subsequently or newly discovered evidence. Tenn. Code Ann. § 40-26-105(a), (b). It is
an “extraordinary procedural remedy” that “fills only a slight gap into which few cases
fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999) (citing Penn v. State, 670
S.W.2d 426, 428 (Ark. 1984)); State v. Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App.
2002)). The decision to grant or deny a petition for writ of error coram nobis rests within
the sound discretion of the trial court. State v. Hall, 461 S.W.3d 469, 496 (Tenn. 2015).
If a petition for coram nobis relief is granted, the judgment of conviction will be set aside
and a new trial will be granted. Payne v. State, 493 S.W.3d 478, 485 (Tenn. 2016).

       Petitions for writ of error coram nobis must satisfy rigorous standards regarding
specificity:

       The motion or petition must be in writing and (1) must describe with
       particularity the nature and substance of the newly discovered evidence and
       (2) must demonstrate that this evidence qualifies as “newly discovered
       evidence.” In order to be considered “newly discovered evidence,” the
       proffered evidence must be (a) evidence of facts existing, but not yet
       ascertained, at the time of the original trial, (b) admissible, and (c) credible.
       In addition to describing the form and substance of the evidence and
       demonstrating that it qualifies as “newly discovered evidence,” the prisoner
       must also demonstrate with particularity (3) why the newly discovered
       evidence could not have been discovered in a more timely manner with the
       exercise of reasonable diligence; and (4) how the newly discovered
       evidence, had it been admitted at trial, may have resulted in a different
       judgment.

Harris v. State, 301 S.W.3d 141, 152 (Tenn. 2010) (Koch, J., concurring in part and
concurring in result) (footnotes omitted), overruled on other grounds by Nunley v. State,
552 S.W.3d 800 (Tenn. 2018).

       Summary dismissal, without discovery or an evidentiary hearing, is permissible
when a petition is insufficient on its face. Nunley, 552 S.W.3d at 829. As the Nunley
court reiterated:

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       “The sufficiency of the contents of a petition for writ of error coram nobis
       filed pursuant to T[enn.] C[ode] A[nn]. § 40-26-105 is of utmost
       importance. Judges anticipate that the petition itself embodies the best case
       the petitioner has for relief from the challenged judgment. Thus, the fate of
       the petitioner’s case rests on the ability of the petition to demonstrate that
       the petitioner is entitled to the extraordinary relief that the writ provides.”

Id. at 826 (quoting Harris, 301 S.W.3d at 150 (Koch, J., concurring in part and concurring
in result)).

        Additionally, petitions for coram nobis relief must be supported by affidavits that
are “relevant, material, and germane to the grounds raised in the petition,” and “the
affiant must have personal knowledge of the statements contained in the affidavit.” State
v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App. 1995). “Affidavits which fail to meet
these criteria will not justify the granting of an evidentiary hearing since the information
contained in the affidavits, taken as true, would not entitle the petitioner to relief.” Id.
(citing State v. Todd, 631 S.W.2d 464, 466-67 (Tenn. Crim. App. 1981)).

        Finally, due process considerations may toll the one-year statute of limitations
when a petitioner seeks a writ of error coram nobis. Workman, 41 S.W.3d at 101-102.
Due process requires the tolling of a statute of limitations period when a petitioner would
otherwise be denied “‘an opportunity for the presentation of claims at a meaningful time
and in a meaningful manner.’” Id. at 102 (quoting Burford v. State, 845 S.W.2d 204, 208
(Tenn. 1992)). “To accommodate due process concerns, the one-year statute of
limitations may be tolled if a petition for a writ of error coram nobis seeks relief based
upon new evidence of actual innocence discovered after expiration of the limitations
period.” Nunley, 552 S.W.3d at 828-29 (citing Wilson, 367 S.W.3d at 234).

        In accordance with the extraordinary nature of the writ, petitioners must plead
specific facts demonstrating why they are entitled to equitable tolling of the statute of
limitations:

       To be entitled to equitable tolling, a prisoner must demonstrate with
       particularity in the petition: (1) that the ground or grounds upon which the
       prisoner is seeking relief are “later arising” grounds, that is grounds that
       arose after the point in time when the applicable statute of limitations
       normally would have started to run; [and] (2) that, based on the facts of the
       case, the strict application of the statute of limitations would effectively
       deny the prisoner a reasonable opportunity to present his or her claims . . .
       . A prisoner is not entitled to equitable tolling to pursue a patently non-
       meritorious ground for relief.
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Id. at 829.

        “If a petition for a writ of error coram nobis fails to show on its face either that it
has been timely filed in accordance with Tennessee Code section 27-7-103 or specific
facts showing why the petitioner is entitled to equitable tolling of the statute of
limitations, the trial court is within its discretion to summarily dismiss it.” Id. A trial
court is not required to conduct an evidentiary hearing prior to dismissing a coram nobis
petition if the petition fails to meet the necessary prerequisites for granting coram nobis
relief. Id. (citation and internal quotation marks omitted). Moreover, “[i]f the averments
in the petition are insufficient to warrant relief, the petition may be dismissed prior to any
response from the state and without a hearing.” Id. (citation and internal quotation marks
omitted). “Whether due process considerations require tolling of a statute of limitations
is a mixed question of law and fact, which we review de novo with no presumption of
correctness.” Harris, 301 S.W.3d at 145 (citing Vaughn v. State, 202 S.W.3d 106, 115
(Tenn. 2006)).

        Based upon the above authority, we conclude that summary dismissal of the
petition for coram nobis relief was proper. The record shows that the petition was
untimely, that the Petitioner failed to establish equitable tolling of the statute of
limitations, and, even assuming due process tolling, that the petition was substantively
inadequate. As noted by the State, the petition failed to articulate with particularity the
grounds upon which the Petitioner claimed he was entitled to equitable tolling of the
statute of limitations. Although the Petitioner generally alleged that he was entitled to
due process tolling based upon trial counsel’s affiliation or “unequivocal ties” with the
university, the petition failed to specify trial counsel’s alleged affiliation or explain how it
impacted the Petitioner’s defense at trial. At most, the petition alleges a bare, nonspecific
conflict of interest, see generally Tenn. Sup. Ct. R. 8, RPC 1.7, which, even if true, does
not provide a cognizable claim for coram nobis relief. See State v. David B. Gardner,
No. M2018-00289-CCA-R3-CD, 2019 WL 3946100, at *3 (Tenn. Crim. App. Aug. 21,
2019), appeal denied (Dec. 5, 2019) (quoting Dennis Cedric Woodard v. State, No.
M2015-02002-CCA-R3-ECN, 2016 WL 6599604, at *17 (Tenn. Crim. App., Nov. 8,
2016)(“Evidence of a conflict of interest[ ] does not qualify as newly discovered evidence
as contemplated by our [coram nobis] statutes.”)); State v. Glenn Bernard Mann, No.
W2006-01867-CCA-R3-CO, 2007 WL 2247237, at *4 (Tenn. Crim. App. Aug. 6,
2007)(noting that the petitioner’s claim that his co-counsel operated under a conflict of
interest during his trial is not cognizable in a petition for writ of error coram nobis
because, if proved, it would constitute ineffective assistance of counsel which the writ of
error coram nobis is not designed to remedy); Kenneth C. Stomm v. State, No. 03C01-
9110-CR-00342, 1992 WL 97081, at *1 (Tenn. Crim. App., at Knoxville, May 12, 1992)
(“The [coram nobis] proceeding is confined to errors outside the record and to matters
                                             -5-
which were not and could not have been litigated at trial, the motion for new trial, appeal,
or upon post-conviction petition.”).

        The petition in this case is further devoid of any attempt to establish “(1) that the
ground or grounds upon which the prisoner is seeking relief are ‘later arising’ grounds,
that is grounds that arose after the point in time when the applicable statute of limitations
normally would have started to run; [and] (2) that, based on the facts of the case, the strict
application of the statute of limitations would effectively deny the prisoner a reasonable
opportunity to present his or her claims....” Nunley, 552 S.W.3d at 829. Instead, the
petition is comprised of conclusory statements that conflate the doctrines of error coram
nobis and post-conviction relief. Because the record shows that the petition is not timely
and that the Petitioner has failed to demonstrate that he is entitled to relief from the
statute of limitations, our “inquiry ends.” Id. at 831. Accordingly, the Petitioner is not
entitled to relief.
                                       CONCLUSION

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




                                              ____________________________________
                                              CAMILLE R. MCMULLEN, JUDGE




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