         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                              Assigned on Briefs June 2, 2009

              TIMOTHY CASTERLOW v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                          No. 98-14186    W. Otis Higgs, Jr., Judge



                 No. W2008-02683-CCA-R3-CO - Filed September 18, 2009


The petitioner, Timothy Casterlow, pro se, appeals the summary dismissal of his writ of error coram
nobis as being filed outside the one-year statute of limitations. He contends due process principles
should toll the running of the statute of limitations because the newly discovered evidence was not
timely sent to him by his attorney. After review of this record, we conclude that due process does
not require the tolling of the statute of limitations.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which JERRY L. SMITH , J., joined.
CAMILLE R. MCMULLEN , J., not participating.

Timothy Casterlow, Henning, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Nicole C. Germain, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

        On November 15, 1999, the petitioner was found guilty of rape of a child, a Class A felony.
This court affirmed the petitioner’s conviction on August 8, 2002. State v. Timothy Casterlow, No.
W2001-0311-CCA-R3-CD, 202 WL 1869420 (Tenn. Crim. App. Aug. 8, 2002), perm. to appeal
denied (Dec. 23, 2002). The petitioner sought no post-conviction relief; rather, he filed the instant
petition for writ of error coram nobis on September 12, 2008. The trial court summarily dismissed
the petition as time-barred without a hearing on October 29, 2008. This appeal followed.

                                             Analysis

        The petitioner alleges that he has found two items of newly discovered evidence in his file
that he obtained from his attorney. One is an affidavit and the other a medical report, both from a
Memphis nurse practitioner, in which the victim denies ever having sex. The nurse’s findings
conclude that “it appeared the child was not sexually active nor had ever been sexually active.” It
appears the affidavit was sworn to on October 27, 2000. The medical reports were compiled on
September 5, 2000. This evidence stands in sharp contrast with the conclusion of a panel of this
court on direct appeal, which stated:

        The record in the instant case reveals that the victim, under the age of thirteen years,
        testified at trial that the [petitioner] penetrated her vaginally on virtually a daily basis
        from June 1, 1996, until August 26, 1998. She also told staff at the sexual assault
        center that the [petitioner] penetrated her anus. A registered nurse at the Memphis
        Sexual Assault Resource Center testified that the victim had redness and swelling in
        the vaginal area as well as anal scarring and dilation. These injuries are consistent
        with sexual abuse.

        Further, the petitioner acknowledges that his petition was filed outside the one year statute
of limitations for error coram nobis. See T.C.A. 40-26-105 (2006). However, he alleges that due
process principles should toll the running of the statute of limitations. The due process principle he
relies upon is that it is unfair to allow the statute of limitations to run when his attorney did not send
him his file as soon as he was required. The petitioner maintains that Rule 8 of the Supreme Court
and the Rules of Professional Conduct require an attorney to promptly surrender any work product
prepared by the attorney for the client. This petitioner received the attorney’s work file on July 9,
2008, nearly five and one-half years after the petitioner’s case became final.

        We are mindful that the Tennessee Supreme Court has recognized that principles of due
process may toll the writ of error coram nobis statute of limitations or the post-conviction statute of
limitations where the petitioner’s liberty interest in raising a later arising issue outweighs the State’s
finality interest embodied in the statute. Workman v. State, 41 S.W.3d 100, 101-02 (Tenn. 2001);
see also Williams v. State, 44 S.W.3d 464 (Tenn. 2001); Seals v. State, 23 S.W.3d 272 (Tenn. 2000);
Burford v. State, 845 S.W.2d 204 (Tenn. 1992). We are also cognizant of the admonition contained
in Harris v. State, 102 S.W.3d 587, 592-93 (Tenn. 2003), warning of the dangers of summarily
dismissing a petition for writ of error coram nobis, saying,

        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.

        However, we agree with the State that due process principles are not invoked in the instant
case such to toll the running of the statute of limitations. First, the evidence was found in his own
attorney’s case file and not the State’s file. Second, it appears that his attorney was working on his
case after it became final in that the file contained the disclosed information obtained in the year
2000. Third, it appears that the petitioner did not request his case file until long after the statute of

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limitations had run. Without any request from the petitioner for his case file, we know of no
authority, and the petitioner cites to none, requiring an attorney to forward all work products to the
client unless requested. We are unable to conclude the petitioner’s attorney violated any portion of
his professional obligation to the petitioner.




                                                       ___________________________________
                                                         JOHN EVERETT WILLIAMS, JUDGE




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