        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs November 24, 2009

            ARTHUR W. STAMEY, III v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Bradley County
                         No. M-04-418   Amy Reedy, Judge




               No. E2009-00996-CCA-R3-CD - Filed February 11, 2010


The petitioner, Arthur W. Stamey, III, appeals the dismissal of his petition for writ of error
coram nobis. In this appeal, he contends that the coram nobis court erred by permitting two
witnesses to testify for the State and by concluding that those witnesses were more credible
than the petitioner. He also claims that the court erred by concluding that a letter of
recantation written by the victim did not constitute newly discovered evidence. Discerning
no error, we affirm the judgment of the coram nobis court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the court, in which N ORMA M CG EE
O GLE and D. K ELLY T HOMAS, J R., JJ., joined.

David K. Calfee, Cleveland, Tennessee, for the appellant, Arthur W. Stamey, III.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Assistant Attorney
General; R. Steven Bebb, District Attorney General; and Stephen M. Hatchett, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

               On February 3, 2004, the petitioner pleaded guilty to one count of aggravated
sexual battery and one count of failure to appear in exchange for an effective sentence of
nine years to be served at 100 percent by operation of law. See Arthur W. Stamey, III v.
State, No. E2005-02261-CCA-R3-PC, slip op. at 1 (Tenn. Crim. App., Knoxville, Apr. 7,
2006) (Stamey I); see also T.C.A. § 40-35-501(I) (2003). Following his guilty plea, the
petitioner filed an unsuccessful motion to withdraw his plea, see Stamey I, slip op. at 2, and

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a similarly unsuccessful petition for post-conviction relief, id. This court affirmed the denial
of post-conviction relief. Id., slip op. at 7. The petitioner then filed a petition for writ of
habeas corpus, the denial of which this court affirmed on direct appeal. See Arthur W.
Stamey, III v. State, No. E2006-02047-CCA-R3-HC (Tenn. Crim. App., Knoxville, Aug. 17,
2007) (Stamey II).

                On February 29, 2008, the petitioner filed a petition for writ of error coram
nobis, alleging that newly discovered, exculpatory evidence rendered his guilty pleas
unknowing and involuntary and that due process required the tolling of the coram nobis
statute of limitations. See Arthur W. Stamey, III v. State, No. E2008-01061-CCA-R3-PC
(Tenn. Crim. App., Knoxville, Jan. 12, 2009) (Stamey III). At issue were three documents:
a written summary of an interview of the victim at the Children’s Advocacy Center (“CAC”)
on May 31, 2002, during which the victim denied any inappropriate contact with the
petitioner; a written summary of an interview of the victim at the CAC on May 22, 2003,
during which the victim claimed that the petitioner had forced her to rub lotion on his penis;
and Department of Children’s Services (“DCS”) field notes dated May 28, 2002, which
stated that the victim denied touching the petitioner’s penis. The petitioner claimed that the
State withheld these documents until his parents filed a request for information following the
denial of his petition for writ of habeas corpus. Holding that the coram nobis court “should
not have dismissed the petition as time-barred in the absence of any findings regarding the
petitioner’s due process tolling claim,” we reversed the judgment of that court and remanded
the case for a hearing to “determine whether the State withheld the statements at issue as the
petitioner alleges and, if so, whether the bar of the statute of limitations would deprive the
petitioner of the opportunity to present his claims at a meaningful time and in a meaningful
manner.” Id., slip op. at 4.

               Upon remand, the coram nobis court appointed counsel, and counsel filed a
memorandum of law in support of the petitioner’s claim that principles of due process
required the tolling of the coram nobis statute of limitations. Noting that the “State has never
contradicted [the petitioner’s] claim that these interviews were not provided to him prior to
entry of his plea,” the petitioner argued that the State’s withholding of the evidence in
question had prevented him from presenting his claim in a meaningful time and manner. The
petitioner also filed a motion to amend his petition for writ of error coram nobis to include
in his claim of newly discovered evidence a letter of recantation written by the victim. The
hand-written letter, addressed “Dear Judge,” contains allegations that the victim’s father’s
girlfriend, Deanna McCracken, coerced the victim “to tell a story about [the petitioner]
making [her] touch him in the private.” The victim claimed that Ms. McCracken threatened
her and asked the judge to “please let [the petitioner] out.”

              The State noted that the petitioner’s coram nobis claim as it related to the

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recantation letter was barred by the one-year statute of limitations, but it did not oppose the
petitioner’s amendment of his coram nobis petition to encompass the recantation letter. The
coram nobis court conducted an evidentiary hearing, which was split into two separate
hearings, to determine whether due process principles required the tolling of the statute of
limitations with regard to the petitioner’s claims and whether the recantation letter
constituted newly discovered evidence.

              At the evidentiary hearing, former Bradley County Assistant District Attorney
General John Williams testified over the petitioner’s objection that at the time the petitioner
was charged in this case, the district attorney general’s office operated an “open file”
discovery policy. He explained that his “files were available for review on appointment and
on even walking into the office if you wanted to take a look at the file.” Mr. Williams
recalled specifically speaking to the petitioner’s trial counsel, District Public Defender
Richard Hughes, regarding discovery in the petitioner’s case. Mr. Williams could not recall
having seen the DCS field notes prior to the evidentiary hearing and explained that as it was
not his general practice to subpoena DCS records, he had no recollection of having requested
the victim’s DCS records in this case.

              During cross-examination, Mr. Williams conceded that he had no “specific
memory of handing [the CAC reports] over personally,” but he reiterated that he utilized an
open file policy “particularly for lawyers who we worked with frequently such as Mr.
Hughes.” Mr. Williams stated that because he did not know “for sure where [the DCS field
notes] came from,” he could not state with any certainty that the DCS field notes had been
disclosed to either the petitioner or his trial counsel.

               Mr. Hughes testified that the case file he maintained while representing the
petitioner contained copies of the DCS field notes and of each written interview summary
from the CAC. Although he could not recall specifically discussing the DCS field notes or
the May 31, 2002 CAC interview with the petitioner, he did recall discussing the May 22,
2003 CAC interview with the petitioner. Mr. Hughes admitted that he did not “have anything
noted in the file as to when [he] received this information but both interviews are in [his]
case file and so [he] received that through the discovery process.” He added, “There’s no
other way I would have received that information.”

              During cross-examination, Mr. Hughes reiterated that he did not “have any
specific notes” that he had shared the information but stated that he “would have certainly
gone over the discovery” with the petitioner. He elaborated, “I have no reason to believe that
I didn’t go over at least that second Child Advocacy Center interview where the child made
a disclosure.” Mr. Hughes conceded that he did not know how he came to be in possession
of the DCS field notes and admitted that he had no “independent recollection of going over

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[the DCS field notes] with [the petitioner].”

               The petitioner testified that he was first charged with the aggravated sexual
battery of the victim in 2004 and that he was represented at that time by Mr. Hughes. The
petitioner maintained that Mr. Hughes had never shown him either CAC interview or the
DCS field notes prior to his pleading guilty in this case. He stated that following the denial
of his petition for writ of habeas corpus, he “decided to see what the [d]istrict [a]ttorney’s
office had on [him] so [he] wrote them a letter and they responded . . . that they were not
obligated to” provide him with the information he had requested. Thereafter, his parents
visited the office of the district attorney at his request, but someone in the office told his
parents that “they couldn’t give [his parents] a copy at that time” because the copy machine
was broken. Approximately two weeks later, his parents “received an envelope” containing,
among other things, the documents at issue in the coram nobis proceeding. The petitioner
insisted that he had never seen the documents until receiving them in 2007. He insisted that
had he been aware of the documents, he would not have pleaded guilty and would have
proceeded to trial.

               Peter Bellavia, the petitioner’s father, testified that at the petitioner’s request,
he contacted the district attorney’s office “[t]o get copies of whatever papers the [d]istrict
[a]ttorney had on this case.” He stated that he telephoned the office “several times” and that
his “wife called once or twice” before they “finally went down there in person.” He recalled
that “about two weeks after that” they received an envelope containing documents that he
then mailed to the petitioner. Mr. Bellavia admitted during cross-examination by the State
that he did not request information from the public defender’s office concerning the
petitioner’s case.

                 At the second hearing, the State argued that the petitioner’s motion to amend
his coram nobis petition did “not make the necessary allegations to toll the statue of
limitations on the writ of error coram nobis” but noted that “because of the history of this
case,” it did not object to the court’s “accepting the amended petition and ruling on it as
written . . . so that this matter is concluded today in its entirety.” The State also argued that
the letter of recantation, which was the subject of the amended petition, could not be newly
discovered evidence “because there’s no proof before the [c]ourt that this letter existed at the
time [the petitioner] plead[ed] guilty” and because the petitioner had consistently maintained
that “this victim is not telling the truth.” The petitioner argued that the recantation letter was
newly discovered evidence and that its recent discovery provided the grounds for tolling the
statute of limitations.

             Following argument by the parties, the coram nobis court ruled that it would
not “hear any other proof because the letter speaks for itself and in fact it’s somewhat

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consistent with some of the other exhibits.” The court accredited Mr. Williams’ testimony
that his office practiced open file discovery at the time of the petitioner’s trial and that his
file “indicated that the CAC reports had been handed over.” The court also accredited Mr.
Hughes’ testimony that he had copies of the CAC reports and the DCS field notes in his
possession prior to the petitioner’s pleading guilty and that he had reviewed “the most
incriminating” of the CAC reports with the petitioner. The court specifically concluded that
the petitioner’s testimony was not credible. Based on this evidence, the court ruled that none
of the documents presented in the original petition for writ of error coram nobis was newly
discovered evidence. The court also found that the recantation letter did not qualify as newly
discovered evidence because it was no “different than the interviews that the child was giving
back in 2002 and 2003.” In consequence, the court denied the petition for writ of error
coram nobis.

               In this appeal, the petitioner asserts that the coram nobis court erred by
permitting the State to present the testimony of Mr. Williams and Mr. Hughes at the
evidentiary hearing when the State had previously conceded the petitioner’s version of his
receipt of the CAC records and DCS field notes. The petitioner also asserts that the coram
nobis court erred by concluding that the accredited testimony of Mr. Williams and Mr.
Hughes supported the denial of coram nobis relief when neither Mr. Williams nor Mr.
Hughes testified that the petitioner had personally reviewed the documents prior to pleading
guilty.

                       I. Testimony of Mr. Williams and Mr. Hughes

                The petitioner first contends that the State should not have been allowed to
present proof that the CAC reports and DCS field notes had been disclosed prior to the
petitioner’s trial because the State had previously failed to challenge the petitioner’s assertion
that he received the documents only after his parents requested them from the district
attorney’s office. The State argues that it was entitled to present evidence because it never
conceded that the petitioner had not received the documents in question.

                During the proceeding before the first coram nobis appeal, the State never
asserted that the documents in question had actually been disclosed to the petitioner. Instead,
the State argued for summary dismissal of the petition for writ of error coram nobis as time-
barred and asserted that it was not required to disclose the documents because they were not
exculpatory. See Stamey III, slip op. at 2. Following the summary dismissal of the petition,
the petitioner appealed, and on appeal the State again advocated summary dismissal of the
petition as time-barred and maintained that it was not required to disclose the documents
prior to trial. Id. The State never challenged the petitioner’s assertion that he first received
the documents via an information request filed by his parents. The State’s complete failure

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to challenge the petitioner’s contention led this court in the first coram nobis appeal to the
legal, not factual, conclusion that the State had conceded the point and chosen to rely instead
on an argument that disclosure was not necessary because the documents were not
exculpatory. See generally State v. White, 635 S.W.2d 396, 400 (Tenn. Crim. App. 1982)
(holding that a court may infer concession from the State’s acquiescence).

                Despite our conclusion, at issue in the previous appeal was propriety of the
coram nobis court’s summary dismissal of the petition for writ of error coram nobis. In light
of the State’s failure to challenge the petitioner’s assertion that the documents had been
withheld, we concluded that the lower court had erred by summarily dismissing the petition
without addressing the issue of a due process tolling of the statute of limitations. See Stamey
III, slip op. at 3-4. However, given the summary nature of the proceedings below, we
charged the coram nobis court with determining the veracity of the petitioner’s claims upon
remand, ruling that the court “should determine whether the State withheld the statements
at issue as the petitioner alleges and, if so, whether the bar of the statute of limitations would
deprive the petitioner of the opportunity to present his claims at a meaningful time and in a
meaningful manner.” Id., slip op. at 4. Because this court specifically ordered the coram
nobis court to assess the validity of the petitioner’s claim that the documents had been
withheld by the State, that court did not err by permitting the State to offer evidence on the
issue. See Barger v. Brock, 535 S.W.2d 337, 341 (Tenn. 1976) (“‘It is a controlling principle
that inferior courts must abide the orders, decrees and precedents of higher courts. The
slightest deviation from this rigid rule would disrupt and destroy the sanctity of the judicial
process.’”); see also State v. Irick, 906 S.W.2d 440, 443 (Tenn. 1995).

              The petitioner also contends that the coram nobis court erred by finding the
testimony of Mr. Williams and Mr. Hughes more credible than that of the petitioner when
neither witness provided affirmative testimony that the petitioner saw the documents before
he entered his plea. The State contends that the coram nobis court correctly accredited the
testimony of Mr. Williams and Mr. Hughes.

               Although we agree with the State that the assessment of witness credibility lies
solely within the purview of, in this instance, the coram nobis court, we cannot agree that the
coram nobis court could have relied solely on the credibility of Mr. Williams and Mr. Hughes
to conclude that the petitioner had personally seen the documents at issue. Neither Mr.
Williams nor Mr. Hughes offered affirmative testimony that each of the documents had been
disclosed to the petitioner personally. Mr. Williams’ testimony established that the State had
disclosed the CAC reports to Mr. Hughes, and Mr. Hughes’s testimony established that his
file contained both CAC reports and the DCS field notes prior to the petitioner’s entering his
guilty plea. Additionally, Mr. Hughes testified that he recalled discussing the May 22, 2003
CAC report with the petitioner while the petitioner was free on bond. With regard to the

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May 31, 2002 CAC report and the May 28, 2002 DCS field notes, however, the only
affirmative testimony offered on the issue of personal disclosure to the petitioner was that
of the petitioner, who steadfastly denied seeing any of the documents in question.

                That being said, however, the proof offered by the State overwhelmingly
established that the State had not, as the petitioner alleged, withheld the exculpatory
documents. Indeed, the documents had been disclosed to Mr. Hughes prior to the petitioner’s
pleading guilty, as established by their presence in Mr. Hughes’s file. The State fulfilled its
requirement to disclose exculpatory evidence by providing the documents to the petitioner’s
counsel, an action which, for our purposes, operated as a disclosure to the petitioner himself.
Because the petitioner failed to establish that the State withheld the documents as he alleged
in his original petition for writ of error coram nobis, he has failed to establish that principles
of due process require the tolling of the coram nobis statute of limitations in his case.

                Moreover, the fact that the documents had indeed been disclosed to the defense
prior to the petitioner’s guilty plea establishes that the documents are not newly discovered
evidence. See, e.g., Paul Welcome v. State, No. E2006-02022-CCA-R3-PC, slip op. at 8
(Tenn. Crim. App., Knoxville, Nov. 28, 2007) (holding that third party confession did not
constitute newly discovered evidence where defense counsel was aware of confession prior
to trial); see also State v. Vasques, 221 S.W.3d 514, 527-28 (Tenn. 2007). The petitioner’s
claim that he never personally reviewed the documents, even if true, would not entitle him
to coram nobis relief. Any relief would be available only via a claim that his counsel
performed deficiently by failing to provide him with the documents prior to his pleading
guilty, a claim that is not cognizable in a proceeding for a writ of error coram nobis.

                Because the petitioner has failed to demonstrate that due process requires the
tolling of the statute of limitations and because he cannot establish a viable claim for coram
nobis relief, the coram nobis court did not err by denying his petition for writ of error coram
nobis.

                                       II. Victim’s Letter

              In his final claim, the petitioner asserts that the coram nobis court erred by
concluding that the victim’s letter recanting her earlier statement to the CAC that the
petitioner had forced her to touch his penis did not constitute newly discovered evidence.
He also claims that the coram nobis court should have allowed him to present live testimony
from the victim at the evidentiary hearing. The State contends that the coram nobis court
correctly concluded that the letter was not newly discovered evidence because it was
consistent with the May 31, 2002 CAC interview.



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               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). Coram nobis relief is provided for in criminal cases by statute:

              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.

T.C.A. § 40-26-105(b) (2006); see Vasques, 221 S.W.3d at 525. In our view, the plain
language of the coram nobis statute and its historical use belie its application to a guilty-
pleaded conviction. The statute’s repeated reference to matters litigated “at the trial” and its
reference to “evidence” appear to limit its application to those cases that actually proceeded
to trial. This conclusion is bolstered by our supreme court’s command to test any “newly
discovered evidence” proffered by the coram nobis petitioner “in the context of the trial, to
assess its veracity and its impact upon the testimony of the other witnesses, and to determine
the potential effect, if any, on the outcome.” Vasques, 221 S.W.3d at 528. When there has
been a guilty plea, there exists no evidence against which the petitioner’s proffered evidence
may be considered. The petitioner, by virtue of his guilty plea, has admitted both his guilt
and the version of the facts as tendered by the State.

               Citing Newsome v. State, 995 S.W.2d 129, 134 (Tenn. Crim. App. 1998), the
petitioner challenges the State’s perceived position that the writ of error coram nobis is not
available to challenge a guilty-plea-based conviction, and he asserts that “a guilty plea may
be set aside if it can be shown that the plea was not voluntarily or knowingly entered.”
Indeed, citing Antonio Demonte Lyons, No. 01C01-9508-CR-00263 (Tenn. Crim. App.,
Nashville, Aug. 15, 1997), Newsome did outline two situations permitting withdrawal of a
guilty plea pursuant to Tennessee Rule of Criminal Procedure 32(f) and a third situation for
attacking the guilty plea when “the judgment is final” and when “the plea was not entered
voluntarily, intelligently, and knowingly, or was obtained through the abridgement of any
right guaranteed by the United States or Tennessee Constitutions.” Newsome, 995 S.W.2d
at 133. As part of this analysis, the Newsome court said in a footnote that, “should ‘newly
discovered evidence’ [a]ffect the voluntariness of a guilty plea, a writ [of error coram nobis]

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may properly lie.” Id. at 134 n. 6. Newsome’s truncated reference to the post-judgment,
constitution-based means of attacking a guilty plea, however, did not acknowledge that the
third rubric described a challenge mounted pursuant to the Post-Conviction Procedure Act
rather than a challenge mounted via a petition for writ of error coram nobis. See Antonio
Demonte Lyons, slip op. at 13 (stating that the third, constitutional basis for challenging a
guilty plea must be presented procedurally through a petition for post-conviction relief); see
also T.C.A. §§ 40-30-101 to 122. The implication is that the court in Newsome,
acknowledging that a post-judgment challenge to the voluntariness or knowingness of a
guilty plea could be mounted, suggested in dicta that a writ of error coram nobis “may
properly lie” to present such a challenge. Thus, the claim that Newsome denotes a holding
that the writ of error coram nobis will lie to challenge the voluntariness or knowingness of
a guilty plea is unavailing, especially when the statute promulgating the use of the writ refers
to the newly discovered evidence not being available “on the trial of the case.” T.C.A. § 40-
26-105(b) (emphasis added).

              We need not concern ourselves with whether Newsome binds us to permit the
suing out of the writ in this case, however, because the record supports the ruling of the
coram nobis court that the letter of recantation written by the victim does not qualify as
newly discovered evidence. First, we agree with the trial court that the information in the
letter had been previously provided to the petitioner via the May 31, 2002 CAC report and
the May 28, 2002 DCS field notes wherein the victim denied any inappropriate contact with
the petitioner and only provided incriminating statements in the presence of Deanna
McCracken. Although the letter certainly provides more detail with regard to Ms.
McCracken’s alleged coercion of the witness, the gist of the information provided is the
same.

              In addition, a new trial may be granted on the basis of a recantation only when:

              (1) the trial court is reasonably well satisfied that the testimony
              given by the material witness was false and the new testimony
              is true; (2) the defendant was reasonably diligent in discovering
              the new evidence, or was surprised by the false testimony, or
              was unable to know of the falsity of the testimony until after the
              trial; and (3) the jury might have reached a different conclusion
              had the truth been told.

Id. at 673 n.17. Here, because there was no trial, the victim has yet to offer any sworn
testimony on the issue of the petitioner’s guilt. Moreover, the petitioner has consistently
maintained that the single incriminating statement given by the victim was false and still
chose to plead guilty to the offense. In consequence, he cannot claim that he was “surprised

                                               9
by the falsity, or was unable to know of the falsity” until after he pleaded guilty.

               Finally, the victim’s letter of recantation does not qualify as “newly discovered
evidence” because it is inadmissible hearsay. The rule requiring a coram nobis petitioner to
establish that newly discovered evidence may have resulted in a different outcome
“presupposes that the evidence (a) would be admissible pursuant to the applicable rules of
evidence, and (b) is material to the issues or grounds raised in the petition.” State v. Hart,
911 S.W.2d 371, 375 (Tenn. Crim. App. 1995). The petitioner offered only the letter as
“newly discovered evidence,” did not object when the coram nobis court indicated that it
would not hear live testimony, and did not seek to make an offer of proof regarding the
victim’s testimony. See State v. Galmore, 994 S.W.2d 120, 125 (Tenn. 1999); see also Tenn.
R. Evid. 103 (“Error may not be predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected, and . . . [i]n case the ruling is one excluding
evidence, the substance of the evidence and the specific evidentiary basis supporting
admission were made known to the court by offer or were apparent from the context.”). As
such, he has failed to demonstrate that the coram nobis court erred by denying his petition
for writ of error coram nobis.

               Accordingly, the judgment of the coram nobis court is affirmed.


                                                     ___________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




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