                                                                                        06/14/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 14, 2017

       MICHELLE DAWN SHOEMAKER v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Jackson County
                     No. 02-160 John D. Wootten, Jr., Judge
                     ___________________________________

                           No. M2016-01146-CCA-R3-ECN
                       ___________________________________

A Jackson County Criminal Court Jury convicted the Petitioner, Michelle Dawn
Shoemaker, of first degree premeditated murder, conspiracy to commit first degree
premeditated murder, solicitation of first degree premeditated murder, and tampering
with evidence, and she received an effective life sentence. Subsequently, the Petitioner
filed a petition for a writ of error coram nobis, alleging newly discovered evidence in the
form of an affidavit from a co-conspirator, who was also the Petitioner’s mother, stating
that the Petitioner was not involved in the victim’s death. The coram nobis court
summarily denied the petition, and the Petitioner appeals. Based upon the record and the
parties’ briefs, we affirm the judgment of the coram nobis court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and CAMILLE R. MCMULLEN, JJ., joined.

Michelle Dawn Shoemaker, Pro Se, Memphis, Tennessee.

Herbert H. Slatery III, Attorney General and Reporter; Alexander C. Vey, Assistant
Attorney General; Tom P. Thomspon, Jr., District Attorney General; and Howard L.
Chambers, Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

      This case relates to a conspiracy by the Petitioner; her husband, Dean Shoemaker;
her mother, Carol Kerr; and Robert Foutch, who lived with the Petitioner and her
husband for a period of time, to kill the Petitioner’s stepfather, Jim Kerr, and share
$64,000 in life insurance proceeds received by Mrs. Kerr. At trial, the State presented
four written statements given by the Petitioner to the police after the victim’s death. See
State v. Michelle Shoemaker, No. M2005-02652-CCA-R3-CD, 2006 WL 3095446, at *2
(Tenn. Crim. App. at Nashville, Nov. 2, 2006), perm. to appeal denied, (Tenn. Mar. 12,
2007). In her first statement, the Petitioner claimed that on June 29, 2002, she and Mrs.
Kerr went shopping, returned to Mrs. Kerr’s home, and found the victim deceased. Id.
In her second statement, the Petitioner claimed that after she and Mrs. Kerr returned to
the Petitioner’s home from shopping, Dean Shoemaker told them that Mr. Foutch had
killed the victim. Id. She stated that she went with her husband and Mr. Foutch to
dispose of evidence on July 4, 2002, and that Mrs. Kerr claimed to have hired Mr. Foutch
to kill the victim. See id. In her third statement, the Petitioner said that prior to the
victim’s death, Mrs. Kerr had complained about him and had made statements about
hoping he would get hurt at work or run over by a tractor. See id. at *3. In her final
statement, the Petitioner said that the night before the victim’s death, she, her husband,
Mrs. Kerr, and Mr. Foutch decided that Mr. Shoemaker and Mr. Foutch would go to the
victim’s home the next day and kill the victim while the Petitioner and Mrs. Kerr were
shopping. Id. The Petitioner stated that she “‘never thought they would really go
through with it’” and that she did not tell the truth in her previous statements because she
was afraid of what would happen to her if she did so. Id.

        Dean Shoemaker pled guilty to second degree murder in exchange for a thirty-
five-year sentence to be served as a Range II offender. Id. at *4. He testified at the
Petitioner’s trial and implicated her in conspiring to kill the victim. See id. at *5. Mr.
Foutch also pled guilty to murder in exchange for a thirty-five-year sentence and testified
at the Petitioner’s trial. See id. at *6. During his testimony, he stated that he heard Mrs.
Kerr say she would pay someone to get rid of the victim, that the Petitioner and Dean
Shoemaker approached him about killing the victim, and that the “plan” was for the
Petitioner and Mrs. Kerr to go shopping while Mr. Shoemaker and Mr. Foutch went to
the Kerr home and killed the victim. Id. Mr. Foutch said that on the day of the victim’s
death, the victim was outside near his truck when Mr. Foutch hit him on the back of the
head and shot him three or four times. Id. Mr. Shoemaker then shot the victim one time.
Id.

       The Petitioner testified at trial that prior to the victim’s death, her mother had been
saying that she no longer wanted to be with him and that she wished he would have an
accident or that someone would kill him. Id. at *7. The Petitioner, her husband, and Mr.
Foutch discussed killing the victim, but the Petitioner never took the discussions
seriously. Id. The night before the victim’s death, the Petitioner heard her husband, her
mother, and Mr. Foutch talking about how to kill the victim, and the Petitioner told them
that she did not want to hear anymore about it. Id. The next day, the Petitioner and her
mother went on a pre-planned trip to Wal-Mart. Id. While they were gone, the
Petitioner’s husband telephoned her and told her to hurry home. Id. When the Petitioner
and her mother returned to the Petitioner’s residence, the Petitioner’s husband told her


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something that made her think something might have happened to the victim. Id. She
and her mother went to her mother’s home and found the victim. Id.

        On May 6, 2005, a Jackson County Criminal Court Jury convicted the Petitioner
of first degree premeditated murder based upon a theory of criminal responsibility;
conspiracy to commit first degree premeditated murder; solicitation of first degree
premeditated murder; and tampering with evidence. On June 21, 2005, approximately six
weeks after the verdicts, Carol Kerr entered a best interest plea, also known as an Alford
plea, to second degree murder in exchange for a fifteen-year sentence to be served at
100%. According to the facts given by the State during the plea hearing, Mrs. Kerr was
to keep one-half of the insurance proceeds received from the victim’s death, and the
Petitioner, Mr. Shoemaker, and Mr. Foutch were to divide the remaining half. The State
advised the trial court that it spoke with the Petitioner prior to Mrs. Kerr’s plea hearing
and made no promises to the Petitioner about the Petitioner’s sentences. The State also
advised the court that the Petitioner wanted to testify against her mother and planned to
testify at Mrs. Kerr’s trial that Mrs. Kerr helped plan the victim’s death, that Mrs. Kerr
intended to share in the insurance money, and that “all of this between the four of them
resulted in Mr. Kerr’s death.”

        On July 25, 2005, the trial court ordered that the Petitioner serve concurrent
sentences of life for first degree premeditated murder; twenty years for conspiracy to
commit first degree premeditated murder, a Class A felony; eight years for solicitation of
first degree premeditated murder, a Class B felony; and three years for tampering with
evidence, a Class C felony. Id. at *1. The court merged the solicitation conviction into
the murder conviction. Id. On direct appeal of the Petitioner’s convictions, this court
affirmed the judgments of the trial court. Id. at *11.

       The Petitioner filed a timely petition for post-conviction relief, claiming that she
received the ineffective assistance of counsel, in part, because trial counsel failed to
communicate with her about a fifteen-year plea offer from the State. The post-conviction
court held an evidentiary hearing and denied the petition, and this court affirmed the
denial. Michelle Shoemaker v. State, No. M2009-00472-CCA-R3-CD, 2010 WL
1462527, at *5 (Tenn. Crim. App. at Nashville, Apr. 13, 2010), perm. to appeal denied,
(Tenn. Aug. 25, 2010). Subsequently, the Petitioner filed a petition for a writ of habeas
corpus in the United States District Court for the Middle District of Tennessee, again
alleging that counsel was ineffective for failing to advise her adequately about the plea
offer. The district court denied the petition, and the Sixth Circuit Court of Appeals
affirmed the denial. Michelle Shoemaker v. Jones, 600 F. App’x 979, 980 (6th Cir.
2015).

       On June 30, 2015, the Petitioner filed a petition for a writ of error coram nobis,
alleging newly discovered evidence establishing her actual innocence. In support of the
petition, she attached an affidavit, signed by Carol Kerr on March 30, 2015, claiming that

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the Petitioner was not involved in the victim’s death. Specifically, Mrs. Kerr stated as
follows:

              I was never asked to testify at [the Petitioner’s] trial, or I
              would have had no choice but to say the same things that are
              in this affidavit. I only wish that I had come forward before
              now. The only reason I did not was because I felt that
              Michelle had turned on me by stating I wanted my husband
              dead. So instead of telling the truth that she had nothing to do
              with his murder, I allowed her to be charged and convicted
              with his murder and did nothing to prevent this injustice. But
              over the past several years the burden of guilt that I have had
              to carry at allowing my only daughter to be wrongfully
              convicted for crimes of which she is innocent, has become
              more [than] I can bear. Therefore I come now in this affidavit
              with the truth.

                     It is my sworn statement today that Michelle Dawn
              Shoemaker never took part in any planning of Jim’s murder,
              even though she was present at various times when I would
              bring up the subject. Michelle did not conspire with me,
              Dean Shoemaker (my son-in-law) or Robert “Frankie”
              Foutch in this crime. She was never part of the plan to have
              Jim killed, nor did she “hire” Frankie. Michelle did not, nor
              was she going to receive any of the life insurance monies that
              I was supposed to get from Jim’s death. It was never
              intended to [be] split four ways, Frankie was the only person,
              besides myself, that stood to gain any benefit whatsoever
              from Jim’s death. I had no idea that ‘Frankie’ was going to
              do what he did. That was not at all what he and I had
              discussed and agreed upon. The only thing Michelle was
              guilty of was being my daughter and Dean’s wife, and trying
              to protect her children after the murder took place. Michelle
              is the only person that had no involvement in this crime, yet
              she received the harshest penalty.

The Petitioner argued in the petition that she was without fault in presenting the newly
discovered evidence at the proper time, i.e., at trial, because she and her mother, who was
awaiting trial at the time of the Petitioner’s trial, had “completely antagonistic defenses
and conflicting interests” and because her mother would have had to incriminate herself
if she had testified at the Petitioner’s trial. The Petitioner also argued that the one-year
statute of limitations for filing the petition should be tolled.


                                           -4-
       On July 30, 2015, Special Agents Russ Winkler and James Scarboro of the
Tennessee Bureau of Investigation met with Mrs. Kerr in the Mark H. Luttrell Correction
Facility, and she gave another sworn statement in which she said the Petitioner did not
know about the murder until “after the fact and did not plan it.” She also stated that she
did not tell anyone about the Petitioner’s innocence previously because she was mad at
Dean Shoemaker and because a fellow prisoner, since deceased, told her that no one
would believe her. At the conclusion of her statement, she said,

              I am shocked that Michelle would confess to having any
              involvement in Jim’s murder other than tampering with
              evidence. I truly believe as Michelle’s mother that she had
              nothing to do with planning Jim’s murder. I have no proof
              that would show you that Michelle had no involvement in
              planning his murder, but if Dean and Frankie would tell the
              truth then you would know.

        On August 19, 2015, the State responded to the petition, noting that although Mrs.
Kerr claimed the Petitioner was not involved in planning the victim’s death, she
acknowledged that she had no proof the Petitioner was not involved. The State argued
that the coram nobis court should dismiss the petition because the purpose of a petition
for a writ or coram nobis was “to bring to the attention of the Court some facts unknown
at trial [that] if known would have resulted in a different judgment” and because “[a]
statement given to help a daughter and then retracted upon further review is not a fact.”

        In a written order, the coram nobis court summarily denied the petition for a writ
of error coram nobis. First, the court noted that a petition for a writ of error coram nobis
was an extraordinary remedy and that the purpose of the writ was “to bring to the
attention of the court some fact unknown to the Court which, if known, would have
resulted in a different judgment.” The court stated that “after examining the entire record
and all allied papers as well as the record relating to all four defendants involved in the
brutal murder of James Kerr that this petitioner and her mother have mended fences” and
that the petition was “a blatant effort by the petitioner and her mother, Ms. Kerr, to
concoct a means to free the petitioner.” The court found that the evidence was not
“newly discovered evidence” but evidence “just newly disclosed to this court.” Finally,
the court found that the Petitioner filed the petition well-beyond the one-year statute of
limitations and that the three-step “‘Burford Rule’” did not warrant tolling the statute of
limitations.

                                       II. Analysis

        The Petitioner claims that the coram nobis court erred by using the statute of
limitations as a basis for denying the petition when the State did not raise the statute of
limitations as an affirmative defense and that the court erred by concluding that due

                                           -5-
process did not warrant tolling the statute of limitations. She also contends that the court
erred by denying the petition without a hearing because the court “illogically” concluded
that she and her mother had “mended fences” when nothing in Mrs. Kerr’s statement
reflected that they were angry with each other; that the court’s conclusion that the petition
was a “blatant effort . . . to concoct a means to free the petitioner” was an improper
assessment of the evidence in light of Mrs. Kerr’s sworn statement that the Petitioner was
innocent; that the court improperly concluded that Mrs. Kerr’s claim of the Petitioner’s
innocence did not constitute newly discovered evidence; and that the court used an
improper standard in denying the petition. The State argues that the trial court properly
denied the petition without a hearing. We agree with the State.

      The writ of error coram nobis is codified in Tennessee Code Annotated section 40-
26-105 and provides as follows:

              There is hereby made available to convicted defendants in
              criminal cases a proceeding in the nature of a writ of error
              coram nobis, to be governed by the same rules and procedure
              applicable to the writ of error coram nobis in civil cases,
              except insofar as inconsistent herewith . . . . 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(a), (b). Generally, a decision whether to grant a writ of
error coram nobis rests within the sound discretion of the trial court. See State v. Hart,
911 S.W.2d 371, 375 (Tenn. Crim. App. 1995).

        The writ of error coram nobis is a post-conviction mechanism that has a long
history in the common law and the State of Tennessee. See, e.g., State v. Vasques, 221
S.W.3d 514, 524-26 (Tenn. 2007). The writ “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).

       Our supreme court has outlined the procedure that a court considering a petition
for a writ of error coram nobis is to follow:

              [T]he trial judge must first consider the newly discovered
              evidence and be “reasonably well satisfied” with its veracity.
              If the defendant is “without fault” in the sense that the

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              exercise of reasonable diligence would not have led to a
              timely discovery of the new information, the trial judge must
              then consider both the evidence at trial and that offered at the
              coram nobis proceeding in order to determine whether the
              new evidence may have led to a different result.

Vasques, 221 S.W.3d at 527. In determining whether the new information may have led
to a different result, the question before the court is “‘whether a reasonable basis exists
for concluding that had the evidence been presented at trial, the result of the proceeding
might have been different.’” Id. (quoting State v. Roberto Vasques, No. M2004-00166-
CCA-R3-CD, 2005 WL 2477530, at *13 (Tenn. Crim. App. at Nashville, Oct. 7, 2005)).
A petition for a writ of error coram nobis “‘may be dismissed without a hearing, and
without the appointment of counsel for a hearing’ if the petition does not allege facts
showing that the petitioner is entitled to relief.” Richard Hale Austin v. State, No.
W2005-02591-CCA-R3-CO, 2006 WL 3626332, at *4 (Tenn. Crim. App. at Jackson,
Dec. 13, 2006) (quoting State ex rel. Edmondson v. Henderson, 421 S.W.2d 635, 636
(Tenn. 1967)).

        First, we will address the Petitioner’s claims that the coram nobis court erred by
using the statute of limitations as a basis for denying the petition when the State did not
raise the statute of limitations as an affirmative defense and that the court erred by
concluding due process did not warrant tolling the statute of limitations. A writ of error
coram nobis must be filed within one year after the judgment becomes final in the trial
court. 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.” State v. Harris, 301 S.W.3d 141, 145 (Tenn. 2010). The statute
of limitations is an affirmative defense that is waived if not raised by the State. See
Harris v. State, 102 S.W.3d 587, 593 (Tenn. 2003). However, the issue is not waived if
the Petitioner raises the issue in his or her own pleadings, as in this case. Smith v. State,
873 S.W.2d 5, 6 (Tenn. Crim. App. 1993). Moreover, a coram nobis court does not err
by raising the issue sua sponte. Id. at 7.

       Here, the judgments became final on September 22, 2005, when the trial court
held a hearing on the Petitioner’s motion for new trial and denied the motion. Thus, the
one-year statute of limitations expired on September 22, 2006, and the Petitioner filed the
instant petition almost nine years late. Nevertheless, the statute of limitations may be
tolled on due process grounds if a petition seeks relief based upon newly discovered
evidence of actual innocence. Wilson v. State, 367 S.W.3d 229, 234 (Tenn. 2012).

       Our supreme court has stated that “[i]n determining whether tolling of the statute
is proper, the court is required to balance the petitioner’s interest in having a hearing with
the interest of the State in preventing a claim that is stale and groundless.” Id. In

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general, “‘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.’” Id. (quoting
Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992)). Our supreme court described the
three steps of the “Burford rule” as follows:

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

        Turning to the instant case, the Petitioner has failed to demonstrate how her claim
of newly discovered evidence arose after the limitations period expired or why she was
effectively denied a reasonable opportunity to present her claim due to the expiration of
the statute of limitations. The Petitioner obviously knew whether or not she was involved
in the planning of the victim’s murder and that her mother could testify favorably for her.
See Joseph Stinnett v. State, No. M2007-02123-CCA-R3-CO, 2008 WL 4367462, at *6
(Tenn. Crim. App. at Nashville, Sept. 18, 2008). Although the Petitioner alleged in her
petition for coram nobis relief that she could not raise the exculpatory evidence earlier
because her mother would have had to incriminate herself at the Petitioner’s trial, Mrs.
Kerr stated in her first affidavit that she “would have had no choice but to say the same
things that are in this affidavit” if called to testify. In any event, assuming Mrs. Kerr
would have asserted her Fifth Amendment privilege against compulsory self-
incrimination at the Petitioner’s trial, Mrs. Kerr waived the privilege by entering an
Alford plea.1 See Boykin v. Alabama, 395 U.S. 238, 243 (1969); see also Alford v.
North Carolina, 400 U.S. 25, 37 (1970) (finding no “material difference” between a
guilty plea and a best interest plea when a defendant pleads guilty intelligently and the
record before the trial court contains strong evidence of the defendant’s guilt). As noted
by the State, Mrs. Kerr entered her plea on June 21, 2005, her judgment of conviction
became final on July 21, 2005, the one-year statute of limitations for the Petitioner’s
petition for a writ of error coram nobis began to run on September 22, 2005, and the
statute of limitations expired on September 22, 2006. Therefore, the Petitioner could

        1
           During Mrs. Kerr’s guilty plea hearing, the trial court asked if she understood she was waiving
her right against self-incrimination, and she answered, “Yes, sir.”
                                                  -8-
have asserted her claim of newly discovered evidence well-before the expiration of the
statute of limitations, and Mrs. Kerr could have been compelled to testify at a hearing on
the petition. See State v. Billy Ray Sanlin, No. W2004-00841-CCA-R3-CD, 2005 WL
1105227, at *4 (Tenn. Crim. App. at Jackson, May 6, 2005) (citing Mitchell v. United
States, 526 U.S. 314, 326 (1999)). Instead, the Petitioner took no action until Mrs. Kerr
proclaimed the Petitioner’s innocence. Conspicuously, Mrs. Kerr did not proclaim the
Petitioner’s innocence until Mrs. Kerr had served almost her entire fifteen-year sentence.

        Moreover, Mrs. Kerr’s affidavit that the Petitioner was not involved in the victim’s
death only contradicted Mr. Shoemaker’s and Mr. Foutch’s testimony that the Petitioner
was involved and the Petitioner’s own final statement that she helped plan the victim’s
death the night before he was killed. Newly discovered evidence that merely contradicts
evidence at trial generally does not justify coram nobis relief. Hawkins v. State, 417
S.W. 2d 774, 778 (Tenn. 1967); see Jacob Edward Campbell v. State, No. M2013-02664-
CCA-R3-ECN, 2014 WL 1259125, at *2 (Tenn. Crim. App. at Nashville, Mar. 26, 2014)
(citing Hawkins and stating that “[t]he affidavit submitted by the Petitioner merely serves
to contradict overwhelming evidence at trial that the Petitioner committed this offense,
including testimony of the Petitioner’s own admission to the crime from the Petitioner’s
cellmate”). Thus, she has failed to show that her interest in having a hearing outweighs
the State’s interest in preventing a stale and groundless claim. See Jacob Edward
Campbell v. State, No. M2013-02664-CCA-R3-ECN, 2014 WL 1259125, at *2. In sum,
the Petitioner’s petition is untimely, and she has failed to show that due process requires
tolling the statute of limitations.

       As to the Petitioner’s contention that the coram nobis court improperly concluded
that Mrs. Kerr’s affidavit did not constitute newly discovered evidence, our supreme
court has stated that newly available evidence is newly discovered for purposes of the
coram nobis statute. Taylor v. State, 171 S.W.2d 403, 405 (Tenn. 1943). Furthermore,
testimony from a witness, who previously refused to testify by asserting the constitutional
privilege against self-incrimination, is considered newly available evidence when the
witness can no longer assert the privilege. See David G. Housler, Jr. v. State, No.
M2010-02183-CCA-R3-PC, 2013 WL 5232344, at *44 (Tenn. Crim. App. at Nashville,
Sept. 17, 2013). For the reasons explained above, though, the evidence in this case was
available prior to the expiration of the statute of limitations. As to the Petitioner’s
contention that the coram nobis court used the wrong standard to deny the petition, we
note that both the State and the coram nobis court cited the incorrect standard to be
applied to the resolution of coram nobis claims. The proper standard is whether the jury
“may have” reached a different result, not whether the jury “would have” reached a
different result. Regardless, the coram nobis court dismissed the petition based upon its
findings that the petition did not allege newly discovered evidence, that the petition was
filed outside the one-year statute of limitations, and that the statute of limitations should
not be tolled. The court did not assess whether newly discovered evidence would have
caused the jury to reach a different result.

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                                    III. Conclusion

       Based upon the record and the parties’ briefs, we affirm the judgment of the coram
nobis court.



                                                  _________________________________
                                                  NORMA MCGEE OGLE, JUDGE




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