        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                   June 3, 2014 Session

               TYRONE CHALMERS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                      No. P24965 Don R. Ash, Special Judge




                 No. W2013-02317-CCA-R3-PD - Filed June 30, 2014


The petitioner, Tyrone Chalmers, appeals from the Shelby County Criminal Court’s denial
of his petition for writ of error coram nobis in which he challenged his death sentence
resulting from his 1997 conviction for first degree felony murder. On appeal, the petitioner
contends that he is entitled to coram nobis relief because he is intellectually disabled and,
therefore, ineligible for the death penalty. We affirm the judgment of the trial court.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which C AMILLE R. M CM ULLEN and
R OGER A. P AGE, JJ., joined.

Paul J. Bruno, Nashville, Tennessee, for the appellant, Tyrone Chalmers.

Robert E. Cooper, Jr., Attorney General & Reporter; James E. Gaylord, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Muriel Malone, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

        In 1997, the petitioner was convicted of first degree felony murder and especially
aggravated robbery. The jury sentenced him to death after finding that the evidence of an
aggravating circumstance – that the petitioner was previously convicted of one or more
felonies, other than the present charge, whose statutory elements involved the use of violence
of the person, see Tenn. Code Ann. § 39-13-204(i)(2) (Supp. 1994) – outweighed evidence
of any mitigating circumstances beyond a reasonable doubt. The trial court sentenced the
petitioner to twenty years for the especially aggravated robbery conviction, to run
concurrently with the death sentence but consecutively to sentences previously imposed in
another case. The Tennessee Supreme Court affirmed the petitioner’s convictions and
sentences on direct appeal. See State v. Chalmers, 28 S.W.3d 913, 915 (Tenn. 2000).

        The evidence presented at trial was summarized by the Tennessee Supreme Court on
direct appeal as follows:

               At approximately 5:00 a.m. on August 20, 1994, the body of the
        African-American victim, 28-year-old Randy Allen, was discovered lying face
        down on the sidewalk next to Netherwood Street in Memphis. His pants and
        underwear had been pulled down around his ankles, and he had been shot five
        times. Two of the wounds, one to the head and another to the back, were fatal.

              Ten days after the shooting, the 21-year-old African-American
        defendant admitted to Memphis police that he had killed the victim during a
        robbery. The defendant stated:

                I met up with “Dre” and “Black” on Orleans and So. Parkway
                near the park. “Black” was driving something like a [sic]
                Oldsmobile, “Dre” was in the front passenger seat and I got in
                the back seat. We were just riding around looking for somebody
                to rob. I had some kind of automatic rifle, it had a clip in it,
                black and brown color. “Dre” had a .380 automatic or
                something, look [sic] black to me. I think “Black” had a
                shotgun. “Black” was driving down Netherwood, and me and
                “Dre” jumped out on two boys.1 We tried to rob them. We
                made them strip, then I had hit the one that was killed with the
                rifle and it went off, and I couldn’t let the rifle go. Then me and
                “Dre” jumped in the car and left, with “Black” driving. Then
                “Black” dropped me and “Dre” off near a house, close to
                Southside School.

               The defendant, who robbed Murphy and the victim of $ 3.00, estimated
        that he had fired six times. The defendant concluded his statement by
        remarking, “I’m sorry it ever happened. If I could go through it again, I


       1
         These “two boys” were the victim and his cousin, Marlon Murphy. The defendant was also indicted
for the aggravated robbery of Murphy, but the charge was dismissed due to Murphy’s unavailability as a
witness for the prosecution.

                                                  -2-
wouldn’t.”

       ....

        During the sentencing phase, the State introduced evidence of the
defendant’s previous convictions for attempted especially aggravated robbery
and attempted first degree murder for a criminal episode occurring on the same
date as the present offenses. The Deputy Clerk for the Shelby County
Criminal Court Clerk’s Office testified that, according to the court records,
Tyrone Chalmers was convicted of attempted especially aggravated robbery
and attempted first degree murder on July 8, 1996, for offenses committed
against Joseph Hunter on August 20, 1994. During cross-examination, defense
counsel contested the clerk’s identification of the defendant, asking, “You
have no way of knowing whether or not those documents that you have are in
fact, belong to [sic] Tyrone Chalmers, do you? You have no personal
knowledge yourself, do you?” Hunter, the victim of those prior crimes, then
testified that he was driving home at approximately 2:55 a.m. on August 20,
1994, when the defendant stepped in front of his car, pointed a rifle at him, and
told him to “give it up.” According to Hunter, the defendant fired
approximately fifteen rounds at him as he drove away, striking Hunter in the
leg and arm.

       The defendant presented the testimony of his mother and sister. His
mother testified that the defendant was one of seven children, had graduated
from high school, and had never given her any trouble. At the time of these
offenses, the defendant was employed and was caring for his mother who
suffered from diabetes. The defendant’s sister described the defendant as “a
very caring person” and her best friend. She conceded that he had been in
juvenile court once but claimed that the victim of that offense had “actually
committed a crime” against the defendant.

       The last witness was the defendant, who testified that only hours before
he committed these offenses he had been drinking alcohol and had smoked
crack cocaine for the first time. He claimed that he could not remember what
happened but did recall that the gun he used belonged to one of the
accomplices. He admitted having been in juvenile court but asserted that the
only criminal charges he had ever faced were those arising from the events of
the early morning hours of August 20, 1994. The defendant told the victim’s
family that he was sorry and expressed his desire to take the victim’s place if
he could. On cross-examination, the defendant admitted that he tried to rob

                                       -3-
       Hunter before he ever met up with Dre and Black.

Id. at 915-17.

                               Post-Conviction Proceedings

       On April 19, 2001, the petitioner filed a pro se petition for post-conviction relief
claiming that his counsel were ineffective. The petitioner, through counsel, filed an amended
petition in September 2003 claiming that he was intellectually disabled and, therefore,
ineligible for the death penalty.

       During the August 2005 evidentiary hearing, the petitioner presented the testimony
of Dr. Keith Caruso as an expert in general and forensic psychiatry. Dr. Caruso testified that
the petitioner had a verbal I.Q. score of 73, a performance I.Q. score of 85, and a full-scale
I.Q. score of 77. Dr. Caruso further testified that the petitioner fell within the borderline
range of intellectual functioning.

       The petitioner appeared to have abandoned his claim of intellectual disability during
the post-conviction hearing. The post-conviction court did not address the intellectual
disability issue in denying the petitioner post-conviction relief. The petitioner did not raise
the issue in his appeal of the denial of post-conviction relief in this court. On appeal, this
court affirmed the post-conviction court’s judgment. See Tyrone Chalmers v. State, No.
W2006-00424-CCA-R3-PD, 2008 WL 2521224, at *1 (Tenn. Crim. App. June 25, 2008),
perm. app. denied (Tenn. Dec. 22, 2008).

                            Intellectual Disability Proceedings

        On April 10, 2012, the petitioner filed a motion to reopen post-conviction proceedings
in which he alleged that he is intellectually disabled and, therefore, ineligible for the death
penalty. He argued that the Tennessee Supreme Court’s decision in Coleman v. State, 341
S.W.3d 221 (Tenn. 2011), established a new constitutional right that was not recognized at
the time of his trial. He also argued that he has new scientific evidence that he is
intellectually disabled and, therefore, actually innocent of capital murder and the death
penalty.

       The petitioner attached to his motion the April 9, 2012 affidavit of Dr. Daniel Reschly,
a professor of education and psychology at Vanderbilt University. According to Dr. Reschly,
the petitioner was administered the Wechsler Intelligence Scale for Children-Revised
(WISC-R) in 1985, and he received a full-scale I.Q. score of 78. Dr. Reschly applied the
Flynn Effect to adjust the petitioner’s I.Q. score to 73.7. On October 20, 2009, Dr. Reschly

                                              -4-
administered the Wechsler Adult Intelligence Test-IV (WAIS-IV) to the petitioner, and the
petitioner’s full-scale I.Q. score was 76. Dr. Reschly applied the Flynn Effect to adjust the
petitioner’s I.Q. score of 75.

        Dr. Reschly noted issues with the accuracy of the Wechsler Scales norms for both the
children and adult scores at the very high and very low levels of intellectual functioning. As
a result, Dr. Reschly administered the Stanford-Binet Intelligence Scales, Fifth Edition (SB-
V) on March 16, 2012, and the petitioner’s full-scale I.Q. score was 70. Dr. Reschly adjusted
the petitioner’s I.Q. score to 66.4 based upon the Flynn Effect. He concluded that based
upon his clinical judgment and consideration of the Flynn Effect, estimation of error in the
test, practice effect, and cultural differences, the petitioner’s “functional intelligence clearly
is at or below 70.”

        Dr. Reschly concluded that the petitioner has significant deficits in adaptive behavior
due to substantial limitations in the conceptual skills, social skills, and practical skills
domains. He further concluded that the petitioner’s functional intelligence and significant
deficits in adaptive behavior were present prior to the age of eighteen. Dr. Reschly opined
that the petitioner is intellectually disabled.

        On December 20, 2012, the Tennessee Supreme Court released its opinion in Keen
v. State, 398 S.W.3d 594 (Tenn. 2012), in which the court rejected the bases upon which the
petitioner sought to reopen his post-conviction proceedings. According to the trial court’s
order, on February 1, 2013, the petitioner amended his motion to include a petition for writ
of error coram nobis and directly invoked the intellectual disability provisions in Tennessee
Code Annotated section 39-13-203. The trial court’s order states that the State filed a
response seeking summary dismissal and that the petitioner filed a reply brief.2

        On September 19, 2013, the trial court entered an order denying relief. The trial court
found that the grounds asserted by the petitioner in his motion to reopen were precluded by
Keen. The trial court noted that in support of his petition for a writ of error coram nobis, the
petitioner alleged that his 2012 evaluation constituted new evidence that he is ineligible for
the death penalty. The trial court found that information regarding the potential issue of
intellectual disability had been available to the petitioner for many years but that the writ was
not filed until February of 2013, more than fifteen years after the judgment became final and
almost ten years after the petitioner first raised the issue in post-conviction proceedings. The
trial court further found that “[m]erely having an expert perform yet another evaluation like
others [had] done in the past does not satisfy the criteria for tolling the statute.” The trial


       2
         The petitioner’s amended motion, the State’s response, and the petitioner’s reply brief are not
included in the record on appeal.

                                                  -5-
court concluded that the petitioner’s petition for a writ of error coram nobis was barred by
the one-year statute of limitations and that the petitioner failed to establish a sufficient basis
to justify tolling of the limitations period. The trial court also denied the petitioner’s claim
that he should be allowed to directly invoke the provisions of Tennessee Code Annotated
section 39-13-203.

       The petitioner filed in this court an application for permission to appeal the trial
court’s denial of his motion to reopen pursuant to Supreme Court Rule 28. On January 14,
2014, this court entered an order denying the petitioner’s application for permission to appeal
and holding that in Keen, the Tennessee Supreme Court rejected the bases upon which the
petitioner sought to reopen post-conviction proceedings. See Tyrone Chalmers v. State, No.
W2013-02329-CCA-R28-PD (Tenn. Crim. App. Jan. 14, 2014), perm. app. filed (Tenn. Mar.
14, 2014). The petitioner also filed a notice of appeal pursuant to Rule 3, Tennessee Rules
of Appellate Procedure, regarding his claims of coram nobis relief and relief pursuant to
Tennessee Code Annotated section 39-13-203.

                                          ANALYSIS

        The petitioner contends that the post-conviction court erred in denying his petition for
writ of error coram nobis in which he claimed that he is intellectually disabled and, therefore,
ineligible for the death penalty. He also contends that he should be allowed to directly
invoke the provisions of Tennessee Code Annotated section 39-13-203 to establish that he
is intellectually disabled.

                     A. Intellectual Disability and the Death Penalty

        In 1990, Tennessee Code Annotated section 39-13-203 was enacted prohibiting the
execution of defendants who were intellectually disabled at the time that they committed first
degree murder. See Tenn. Code Ann. § 39-13-203(b); State v. Howell, 151 S.W.3d 450, 455
(Tenn. 2004); State v. Van Tran, 66 S.W.3d 790 (Tenn. 2001). Although the statute is not
to be applied retroactively, the execution of intellectually disabled individuals violates
constitutional prohibitions against cruel and unusual punishment. Howell, 151 S.W.3d at 455
(citing Van Tran, 66 S.W.3d at 798-99); see Atkins v. Virginia, 536 U.S. 304, 321 (2002).

       In Tennessee, “intellectual disability” rendering a defendant ineligible for the death
penalty requires:

       (1) Significantly subaverage general intellectual functioning as evidenced by
       a functional intelligent quotient (I.Q.) of seventy (70) or below;



                                               -6-
       (2) Deficits in adaptive behavior; and

       (3) The intellectual disability must have manifested during the developmental period,
       or by eighteen (18) years of age.

Tenn. Code Ann. § 39-13-203(a). All three prongs must be satisfied to establish intellectual
disability.

        The defendant has the burden of establishing intellectual disability by a preponderance
of the evidence. See Tenn Code Ann. § 39-13-203(c); Howell, 151 S.W.3d at 465. The issue
of whether a defendant is intellectually disabled and, thus, ineligible for the death penalty is
a mixed question of law and fact. State v. Strode, 232 S.W.3d 1, 8 (Tenn. 2007). A trial
court’s findings of fact are binding on this court unless the evidence preponderates against
those findings. Id. The trial court’s application of the law to those facts is reviewed de novo.
Id.

        The first prong of intellectual disability under section 39-13-203(a)(1) requires
“[s]ignificantly subaverage general intellectual functioning as evidenced by a functional
intelligent quotient (I.Q.) of seventy (70) or below.” In applying this provision, the
Tennessee Supreme Court held in Howell that the demarcation of an I.Q. of 70 was a
“bright-line” rule that must be met. Howell, 151 S.W.3d at 456-59. Following Howell,
Tennessee Supreme Court released its opinion in Coleman v. State, 341 S.W.3d 221, 241
(Tenn. 2011), holding that although an individual’s I.Q. is generally obtained through
standardized intelligence tests, section 39-13-203 does not provide clear direction regarding
how an I.Q. should be determined and does not specify any particular test or testing method
that should be utilized. The court noted that section 39-13-203(a)(1) requires a “functional
intelligence quotient of seventy (70) or below” and does not require a “functional intelligence
quotient test score of seventy (70) or below.” Coleman, 341 S.W.3d at 241 (emphasis in
original). Therefore, “the trial courts may receive and consider any relevant and admissible
evidence regarding whether the defendant’s functional I.Q. at the time of the offense was
seventy (70) or below.” Id.

        The supreme court noted that section 39-13-203(a)(1) differs with clinical practice in
one material respect. Id. at 247. In diagnosing intellectual disability, clinicians generally
report their conclusions regarding an individual’s I.Q. within a range, and section
39-13-201(a)(1) requires more definite testimony. Id. As a result, “an expert’s opinion
regarding a criminal defendant’s I.Q. cannot be expressed within a range (i.e., that the
defendant’s I.Q. falls somewhere between 65 to 75) but must be expressed specifically (i.e.,
that the defendant’s I.Q. is 75 or is ‘seventy (70) or below’ or is above 70).” Id. at 242.



                                              -7-
        In determining whether a defendant’s functional I.Q. is 70 or below, “a trial court
should consider all evidence that is admissible under the rules for expert testimony.” Keen
v. State, 398 S.W.3d 594, 605 (Tenn. 2012). Experts may use relevant and reliable practices,
methods, standards, and data in formulating their opinions. Coleman, 341 S.W.3d at 242.
Moreover,

       if the trial court determines that professionals who assess a person’s I.Q.
       customarily consider a particular test’s standard error of measurement, the
       Flynn Effect, the practice effect, or other factors affecting the accuracy,
       reliability, or fairness of the instrument or instruments used to assess or
       measure the defendant’s I.Q., an expert should be permitted to base his or her
       assessment of the defendant’s “functional intelligence quotient” on a
       consideration of those factors.

Id. at n.55. The emphasis to be placed upon clinical judgment varies depending upon “the
type and amount of information available, the complexity of the issue, and the presence of
ore or more challenging conditions or situations.” Id. at 246. The trial court is not required
to follow any particular expert’s opinion but must fully and fairly consider all evidence
presented, including the results of all I.Q. tests administered to the defendant. Id. at 242.

        Following Coleman, the Tennessee Supreme Court released its opinion in Keen v.
State, 398 S.W.3d 594 (Tenn. 2012), addressing the issue of whether a capital petitioner may
allege intellectual disability as a basis for reopening post-conviction proceedings. The
petitioner in Keen sought to reopen post-conviction proceedings on the ground that he
possessed new scientific evidence of actual innocence. Keen, 398 S.W.3d at 598. The
evidence consisted of a newly-obtained I.Q. score of 67, which the petitioner claimed
established that he was intellectually disabled and, therefore, “actually innocent” of the death
penalty. Id. The petitioner also asserted that Coleman established a new rule of
constitutional criminal law that required retroactive application. Id. at 599. The Tennessee
Supreme Court rejected both of the bases upon which the petitioner sought to reopen post-
conviction proceedings. The court specifically held that Coleman addressed the
interpretation and application of Tennessee Code Annotated section 39-13-203 and was not
a constitutional ruling. Id. at 609. The court further held that “a claim alleging ineligibility
for the death penalty does not qualify as an actual innocence claim.” Id. at 613. While
remaining “committed to the principle that Tennessee has no business executing persons who
are intellectually disabled,” the court held that the petitioner failed to meet the requirements
for reopening post-conviction proceedings. Id.

       In addressing its holdings in Howell and Coleman, the court noted:



                                              -8-
               Regrettably, several courts misconstrued our holding in Howell that
       Tenn. Code Ann. § 39-13-203(a)(1) established a “bright line rule” for
       determining intellectual disability. They understood this language to mean that
       courts could consider only raw I.Q. scores. Accordingly, these courts tended
       to disregard any evidence suggesting that raw scores could paint an inaccurate
       picture of a defendant’s actual intellectual functioning. This was an inaccurate
       reading of Howell, in which we took pains to say that the trial court should
       “giv[e] full and fair consideration to all tests administered to the petitioner”
       and should “fully analyz[e] and consider[] all evidence presented” concerning
       the petitioner’s I.Q.

Id. at 603 (citations omitted) (emphasis in original). The petitioner requested that the court
remand his case for a new hearing on the issue of intellectual disability, just as the court had
done in Coleman and in Smith v. State. See Smith v. State, 357 S.W.3d 322, 354-55 (Tenn.
2011); Coleman, 341 S.W.3d at 252-53. The court in Keen, however, rejected the
petitioner’s contention noting that Coleman and Smith took advantage of the one-year
window for reopening their petitions following the recognition of the constitutional
prohibition against executing intellectually disabled defendants in Van Tran and Atkins.
Keen, 398 S.W.3d at 613. The petitioner in Keen failed to avail himself of that opportunity.
Id.

                              B. Writ of Error Coram Nobis

        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). Tennessee Code Annotated section 40-26-105(b) provides that coram
nobis relief is available in criminal cases as follows:

       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.

Our supreme court has stated the stand of review as “whether a reasonable basis exists for
concluding that had the evidence been presented at trial, the result of the proceedings might

                                              -9-
have been different.” State v. Vazques, 221 S.W.3d 514, 525-28 (Tenn. 2007) (citation
omitted).

        Unlike the grounds for reopening a post-conviction petition, the grounds for seeking
a petition for writ of error coram nobis are not limited to specific categories. Harris v. State,
102 S.W.3d 587, 592 (Tenn. 2003). Coram nobis claims may be based upon any “newly
discovered evidence relating to matters litigated at the trial” so long as the petitioner
establishes that he or she was “without fault” in failing to present the evidence at the proper
time. Id. Coram nobis claims are “singularly fact-intensive,” are not easily resolved on the
face of the petition, and often require a hearing. Id. at 592-93. The decision to grant or deny
coram nobis relief rests within the sound discretion of the trial court. Vazques, 221 S.W.3d
at 527-28.

        The State asserts that the petitioner’s claim is barred by the statute of limitations.
Coram nobis claims are subject to a one-year statute of limitations. Tenn. Code Ann. § 27-7-
103. The statute of limitations is computed “from the date the judgment of the trial court
becomes final, either thirty days after its entry in the trial court if no post-trial motions are
filed or upon entry of an order disposing of a timely filed, post-trial motion.” Harris v. State,
301 S.W.3d 141, 144 (Tenn. 2010). The issue of whether a claim is barred by an applicable
statute of limitations is a question of law, which this court reviews de novo. See id. We
must construe the coram nobis statute of limitations “consistent with the longstanding rule
that persons seeking relief under the writ must exercise due diligence in presenting the
claim.” Id.

        The one-year statute of limitations may be tolled on due process grounds if the
petitioner seeks relief based upon newly discovered evidence of actual innocence. Wilson,
367 S.W.3d at 234. In determining whether tolling is proper, the court must balance the
petitioner’s interest in having a hearing with the State’s interest in preventing a claim that is
stale and groundless. Harris, 301 S.W.3d at 145 (citing Workman v. State, 41 S.W.3d 100,
102 (Tenn. 2001)). Generally, “before a state may terminate a claim for failure to comply
with . . . statutes of limitations, due process requires that potential litigants be provided an
opportunity for the presentation of claims at a meaningful time and in a meaningful manner.”
Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992). The Burford rule consists of three
steps:

       (1) determine when the limitations period would normally have begun to run;
       (2) determine whether the ground 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

                                              -10-
       opportunity to present the claim.

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

         The limitations period normally would have begun to run following the petitioner’s
trial in 1997. The petitioner filed his petition for writ of error coram nobis on February 1,
2013, approximately fifteen years after the one-year statute of limitations expired.

        In 1990, Tennessee Code Annotated section 39-13-203, prohibiting the execution of
intellectually disabled defendants, was enacted. The petitioner, however, did not raise the
issue of intellectual disability during his 1997 trial. In 2001, our supreme court recognized
that the execution of intellectually disabled defendants is constitutionally prohibited. See
Van Tran, 66 S.W.3d at 798-99. The petitioner raised a claim of intellectual disability in his
amended petition for post-conviction relief. However, he abandoned the issue after his
expert, Dr. Caruso, testified during the evidentiary hearing that the petitioner fell within the
borderline range of intellectual functioning.

        The petitioner contends that Dr. Reschly’s report is “newly available” evidence or
evidence that did not become available for presentation until after the trial concluded. While
the petitioner acknowledges that his intellectual disability existed before trial, he argues that
circumstances beyond his control prevented him from presenting such evidence. He submits
that his intellectual disability first became available for presentation following our supreme
court’s opinion in Coleman.

        Generally, to qualify as newly discovered evidence, the evidence must not have been
known to the defendant at the time of trial. Wlodarz v. State, 361 S.W.3d 490, 506 (Tenn.
2012). A narrow exception, however, exists where “‘although not newly discovered
evidence, in the usual sense of the term,’” the “‘availability’” of the evidence “‘is newly
discovered.’” Harris v. State, 301 S.W.3d at 160-61 (Koch, J., concurring) (quoting Taylor
v. State, 171 S.W.2d 403, 405 (Tenn. 1943)); see David G. Housler, Jr. v. State, No. M2010-
02183-CCA-R3-PC, 2013 WL 5232344, at *44 (Tenn. Crim. App. Sept. 17, 2013).

        Courts have applied this narrow exception where previously unavailable evidence
became available following a change in factual circumstances. See, e.g., Taylor, 171 S.W.2d
at 405 (applying the exception when at the time of trial, one witness was hospitalized and one
witness was working outside the state and they later became available to testify); Misty Jane
Brunelle v. State, No. E2010-00662-CCA-R3-PC, 2011 WL 2436545, at *10 (Tenn. Crim.
App. June 16, 2011), perm. app. denied (Tenn. Oct. 18, 2011) (noting that the petitioner
should have sought coram nobis relief when a DCS report that was known to the petitioner
but sealed at the time of trial later became available). Many of these cases involve testimony

                                              -11-
of a co-defendant or a witness who previously refused to testify by asserting the
constitutional privilege against self-incrimination. See, e.g., David G. Housler, Jr., 2013 WL
5232344, at *44; United States v. Guillette, 404 F. Supp. 1360, 1372-74 (D. Conn. 1975);
Brantley v. State, 912 So. 2d 342, 343 (Fla. App. 2005); State v. Williams, 246 So. 2d 4, 6
(La. 1971); Commonwealth v. Brown, 431 A.2d 343, 344 (Pa. Super. Ct. 1981); State v.
Gerdes, 258 N.W.2d 839, 843 (S.D. 1977).

       The petitioner has failed to cite to any authority applying this narrow unavailability
exception based upon a change in the law. Issues regarding whether a change in the law
should apply post-trial relate to retroactivity and are more properly addressed in post-
conviction proceedings or a motion to reopen post-conviction proceedings. Even if the
unavailability exception applies to a change in law, the petitioner is not entitled to relief.

       The petitioner argues that prior to Coleman, courts only could consider raw I.Q. scores
in determining intellectual disability pursuant to Tennessee Code Annotated section 39-13-
203(a)(1). The Tennessee Supreme Court in Keen, however, stated that Howell did not
provide for such a limitation. Keen, 398 S.W.3d at 603. Rather, the court in Howell
instructed trial courts to “‘giv[e] full and fair consideration to all tests administered to the
petitioner’” and to “‘fully analyz[e] and consider[] all evidence presented’” concerning the
petitioner’s I.Q. Id. (quoting Howell, 151 S.W.3d at 459).

        Moreover, the Tennessee Supreme Court noted in Coleman that its review of all cases
involving the application of section 39-13-203 reflected that “the parties and the courts have
not been limiting their consideration of whether a criminal defendant has a ‘functional
intelligence quotient of seventy (70) of below’ to the defendant’s raw I.Q. test scores.”
Coleman, 341 S.W.3d at 247. The court explained:

              For example, in Cribbs v. State, both the State and Mr. Cribbs presented
       evidence that his raw I.Q. test scores did not accurately reflect his actual I.Q.
       On behalf of the State, Dr. Wyatt Nichols stated that Mr. Cribbs’s intellectual
       level was actually higher than the I.Q. test score of 73 and was “[m]ore like the
       mid to high 80s.” Cribbs v. State, 2009 WL 1905454, at *22, 32. Dr. Pamela
       Auble, appearing for Mr. Cribbs, stated in her initial report that his I.Q. was
       between 71 and 84. Cribbs v. State, 2009 WL 1905454, at *17. However, Dr.
       Auble later revised her opinion based on information obtained after her first
       report and concluded that Mr. Cribbs’s I.Q. was below seventy. Cribbs v.
       State, 2009 WL 1905454, at *17. Based on all the evidence, the trial court
       concluded that the I.Q. test that produced the score of 73 was the most reliable.
       The trial court found that Dr. Auble’s explanation for the change in her
       opinion was not credible and that Dr. Nichols’s testimony was persuasive.

                                              -12-
       Cribbs v. State, 2009 WL 1905454, at *32.

               The consideration of I.Q. test scores in Cribbs v. State is but one
       example of cases in which the State has argued and presented evidence that
       scores on I.Q. tests should not be considered on their face value. See also
       State v. Strode, 232 S.W.3d at 5 (the State presented evidence challenging the
       score on the basis that the defendant had been malingering); Smith v. State,
       2010 WL 3638033, at *30 (the State presented evidence that the defendant’s
       I.Q. test score should be discounted because of malingering); Van Tran v.
       State, 2006 WL 3327828, at 4-6 (the State argued that the Vietnamese-born
       defendant’s low I.Q. test score reflected cultural and linguistic bias).

Id. The Tennessee Supreme Court concluded that these cases reflected “the parties’ and the
courts’ existing awareness that, as a practical matter, a criminal defendant’s ‘functional
intelligence quotient’ cannot be ascertained based only on raw I.Q. scores.” Id. The court
further concluded that the cases also reflected “the parties’ conclusion that Tenn. Code Ann.
§ 39-13-203(a) does not prevent them from presenting relevant and competent evidence,
other than the defendant’s raw I.Q. test scores, either to prove or to disprove that the
defendant’s ‘functional intelligence quotient’ when the crime was committed was ‘seventy
(70) or below.’” Id. at 247-48.

       We note that recently in Hall v. Florida, __ U.S. __, 134 S. Ct. 1986 (2014), the
United States Supreme Court held that Florida courts’ interpretation of the significantly
subaverage intellectual functioning provision in Florida’s intellectual disability statute is
unconstitutional. Florida courts interpreted the statute as requiring a strict I.Q. raw test score
of 70 without consideration of the standard error of measurement. Hall, __ U.S. at __, 134
S. Ct. at 1995-2000. The Supreme Court agreed “with medical experts that when a
defendant’s I.Q. test score falls within the test’s acknowledged and inherent margin of error,
the defendant must be able to present additional evidence of intellectual disability, including
testimony regarding adaptive deficits.” Id. Unlike the defendant in Hall, however, the
petitioner has not been precluded during his original trial or during post-conviction
proceedings from presenting evidence, other than his raw I.Q. test scores, to establish that
his “functional intelligence quotient” when he committed the murder was 70 or below.

       Accordingly, contrary to the petitioner’s claims, the information in Dr. Reschly’s
report regarding the issue of intellectual disability was available for presentation prior to
Coleman. Dr. Caruso testified during post-conviction proceedings on August 16, 2005,
following the Tennessee Supreme Court’s release of Howell on November 16, 2004.
Nothing prevented the petitioner from presenting during post-conviction proceedings
relevant and competent evidence, other than his raw I.Q. test scores, to prove that his

                                              -13-
“functional intelligence quotient” when the crime was committed was “seventy (70) or
below.”

        During the post-conviction hearing, Dr. Caruso testified regarding the petitioner’s
poor grades in school and his enrollment in special education classes. Dr. Caruso noted that
the petitioner had a verbal I.Q. score of 73, a performance I.Q. score of 85, and a full-scale
I.Q. score of 77. Dr. Caruso further noted that the petitioner was very limited in his verbal
ability. Neuropsychological testing was conducted, and Dr. Caruso found evidence of “a
mixed receptive and expressive language disorder” and attention deficit hyperactivity
disorder. Dr. Caruso referred to the petitioner’s “intellectual deficits” throughout his
testimony. Dr. Caruso, however, concluded that the petitioner’s intellectual functioning was
borderline.

        More than seven years after Dr. Caruso testified, the petitioner filed his petition
seeking to present testimony from a mental health expert who reached a conclusion that
differed from the conclusion reached by Dr. Caruso during post-conviction proceedings. The
information upon which Dr. Reschly relied was available to the petitioner at the time of the
trial and the post-conviction hearing. Nothing prevented the petitioner from undergoing
additional I.Q. testing prior to the trial or post-conviction proceedings. The new I.Q. testing
in 2009 and 2012 is merely cumulative to the evidence previously available to the petitioner.
See Wlodarz, 361 S.W.3d at 499 (noting that newly discovered evidence that is merely
cumulative does not warrant the issuance of a writ). Because the petitioner’s claim could
have been litigated at trial or during post-conviction proceedings, the grounds are not “later-
arising,” justifying the tolling of the one-year statute of limitations. See Tenn. Code Ann.
§ 40-26-105(b) (confining coram nobis relief 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” and requiring the
defendant to show that he was without fault in failing to present the evidence at the proper
time).

        Even if Coleman provides new grounds for relief, the petitioner did not file his
petition for writ of error coram nobis until February 2013, almost twenty-two months
following the issuance of Coleman. The petitioner asserts that the coram nobis petition
should relate back to his motion to reopen his post-conviction petition filed in April 2012.
“No statute in Tennessee nor tolling rule developed at common law provides that the time
for filing a cause of action is tolled during the period in which a litigant pursues a related but
independent cause of action.” Harris, 301 S.W.3d at 146. When the petitioner filed his
motion to reopen, he chose not to file a petition for writ of error coram nobis. It was not until
after our supreme court released its opinion in Keen rejecting the bases upon which the
petitioner relied in filing his motion to reopen that the petitioner filed a petition for writ of

                                              -14-
error coram nobis. A petitioner may not delay presenting a coram nobis claim until “every
other avenue of relief ha[s] been exhausted.” Billy Ray Irick v. State, No. E2010-02385-
CCA-R3-PD, 2011 WL 1991671, at *18 (Tenn. Crim. App., at Knoxville, May 23, 2011),
perm. app. denied (Tenn. Aug. 25, 2011). Therefore, we conclude that under the
circumstances of this case, the delay in seeking coram nobis relief is unreasonable.

       We conclude that the trial court properly found that the petitioner’s petition was
barred by the one-year statute of limitations. Accordingly, the petitioner is not entitled to
coram nobis relief.

                             C. Intellectual Disability Statute

        The petitioner asserts that the intellectual disability provisions in Tennessee Code
Annotated section 39-13-203 provide an independent cause of action allowing him to
challenge his eligibility for the death penalty. In construing a statute, we must ascertain and
give effect to the legislative intent without unduly restricting or expanding a statute’s
coverage beyond its intended scope. State v. Strode, 232 S.W.3d 1, 9 (Tenn. 2007). We
must give the words in the statute their natural and ordinary meaning in light of their
statutory context. Keen, 398 S.W.3d at 610. We must avoid any “forced or subtle
construction that would limit or extend the meaning of the language.” Id. (citation omitted).
“If the statutory language is clear and unambiguous, we apply the statute’s plain language
in its normal and accepted use.” Id.

        Tennessee Code Annotated section 39-13-203 lists the requirements of intellectual
disability, the burden of proof, and the procedure when the issue is raised at trial. The plain
language of the statute does not create an independent cause of action allowing a defendant
to challenge his or her eligibility for the death penalty. Had the General Assembly intended
to create a separate and independent cause of action in which to allege intellectual disability,
they would have stated so in the statute. See, e.g., Tenn. Code Ann. § 40-30-301, et seq.
(creating a cause of action to allow certain defendants to request DNA testing of evidence).
The petitioner is not entitled to relief with regard to this issue.

                                       CONCLUSION

       For the foregoing reasons, we affirm the judgment of the trial court.


                                            ________________________________________
                                            ALAN E. GLENN, JUDGE



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