                                                                                      06/14/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                         Assigned on Briefs March 13, 2018

               MATTHEW DIXON v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
          Nos. 98-02267, 98-02268, 98-02270   James M. Lammey, Judge
                     ___________________________________

                         No. W2017-00490-CCA-R3-ECN
                      ___________________________________


The pro se Petitioner, Matthew Dixon, appeals the summary dismissal of his petition for
writ of habeas corpus and post-conviction DNA analysis. Following our review, we
affirm the summary dismissal of the petition.


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

ALAN E. GLENN, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR., and TIMOTHY L. EASTER, JJ., joined.

Matthew Dixon, Clifton, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; and Katherine C. Redding,
Assistant Attorney General, for the appellee, State of Tennessee.


                                      OPINION

                      FACTS and PROCEDURAL HISTORY

        The Petitioner was convicted in a Shelby County Criminal Court of premeditated
first degree murder and two counts of especially aggravated kidnapping based on his
participation with a group of fellow Gangster Disciple members in administering a brutal
beating to two other gang members as punishment for their alleged violations of gang
rules. State v. Mickens, 123 S.W.3d 355, 361 (Tenn. Crim. App. 2003), perm. app.
denied (Tenn. 2003). One of the victims, Ricky Aldridge, who received the less severe
punishment of a beating without the use of weapons, survived and testified against the
Petitioner at his trial. Id. at 366-67. Among other things, Mr. Aldridge related how the
Petitioner and his co-defendants held him and the murder victim, Marshall Shipp, by the
backs of their pants before they began beating Mr. Shipp with bats and a tire iron. Mr.
Shipp sustained severe blunt force trauma to his head with swelling and bleeding of the
brain, blunt trauma to the lower legs, and a gunshot wound to the pelvis with extensive
internal bleeding and died of his injuries approximately two days following the incident.
Id.

       Another one of the State’s witnesses at trial was Robert Walker, a “chief of
security” for the Memphis Gangster Disciples, who testified that he was present when
Mr. Shipp’s “violations” were discussed by the Memphis “overseer” of the Gangster
Disciples, Tony Phillips, who gave permission for lower level gang members to kill Mr.
Shipp. Id. at 363-65.

       Following his conviction, the Petitioner filed a petition for post-conviction relief,
which was denied by the post-conviction court after an evidentiary hearing. We affirmed
the judgment of the post-conviction court, and our supreme court denied the Petitioner’s
application for permission to appeal. See Matthew Dixon v. State, No. W2007-01091-
CCA-R3-PC, 2008 WL 2673237, at *1 (Tenn. Crim. App. July 8, 2008), perm. app.
denied (Tenn. Oct. 27, 2008).

        The Petitioner later filed a petition to reopen his petition for post-conviction relief,
alleging as a later-arising claim his having learned that Robert Walker “had a secret deal
with the prosecution for a more favorable plea agreement in exchange for his testimony
against the [P]etitioner.” Matthew Dixon v. State, No. W2015-00130-CCA-R3-PC, 2015
WL 6166604, at *3 (Tenn. Crim. App. Oct. 21, 2015). The post-conviction court
summarily dismissed the petition, finding that it was time-barred and that the Petitioner
had not stated a valid claim for tolling the statute of limitations. Id. at *3-4. The
Petitioner then appealed to this court. In our summary of the facts, we noted that Mr.
Walker testified at the Petitioner’s trial “that there was no deal in place with the State at
that time, although he did hope for consideration in charges against him in exchange for
his testimony.” Id. at *3. We also noted that Mr. Walker testified before a federal grand
jury in 1998 “that there was no specific plea agreement in place, but he had discussed the
matter with the State and hoped for consideration.” Id. Ultimately, however, we
dismissed the appeal for lack of jurisdiction, finding that the Petitioner had failed “to
properly seek review of the post-conviction court’s denial of the motion to reopen[.]” Id.
at *5.

       On September 14, 2016, the Petitioner filed the various pleadings at issue in this
case, including one he styled as an “Amended Petition for Writ of Error Coram Nobis
Relief and DNA Post Conviction Petition.” The Petitioner claimed in his “Amended
Petition” that he had filed an August 28, 2014 petition for post-conviction relief based on
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a later-arising claim and a March 1, 2015 petition for writ of error coram nobis, but had
not heard anything from the courts regarding the status of those petitions. There are no
2014 petitions for error coram nobis or for Post-Conviction DNA analysis included in the
record. However, it appears that the August 28, 2014 petition for post-conviction relief
based on a later-arising claim referenced by the Petitioner is the same petition that was
summarily dismissed by the post-conviction court in 2015. See Matthew Dixon, 2015
WL 6166604, at *3 (noting that the petition for post-conviction relief based on a later-
arising claim was filed on August 25, 2014).

       In the “Amended Petition” that is the subject of this appeal, the Petitioner alleged
he was entitled to error coram nobis relief based on newly discovered exculpatory
evidence consisting of non-prosecution agreements between the State and Ricky Aldridge
and the State and Robert Walker that were “purposely and knowingly suppressed and
withheld prior to [the Petitioner’s] August 1999 trial,” as well as “[e]vidence of a history
of violent murders involving both State star witnesses Ricky Aldridge and Robert
Walker,” which was also “purposefully and knowingly suppressed” by the State prior to
the Petitioner’s trial. He further alleged that new DNA analysis techniques, specifically,
“[t]ouch DNA,” could be used to exclude him as the DNA donor of “DNA profiles that
may have been transferred to either the [b]elt of Ricky Aldridge or samples taken from
the physical person of . . . Mr. Shipp on the night of the murders [sic].” The Petitioner
asserted that such DNA analysis excluding him as the contributor of touch DNA from the
belt of Mr. Aldridge or the person of Mr. Shipp could be used to impeach the testimony
of the State’s star witness, Mr. Aldridge.

        On November 7, 2016, the State responded with a motion to dismiss on the bases
that the petition for writ of error coram nobis was filed outside the one-year statute of
limitations and that the Petitioner failed to allege any new evidence relating to matters
actually litigated at trial. With respect to the request for DNA analysis, the State argued
that the Petitioner failed to establish that a “reasonable probability exist[ed] that the
[P]etitioner would not have been prosecuted or convicted if exculpatory [evidence were]
obtained through DNA analysis.”

        On November 7, 2016, the trial court entered an order granting the State’s motion
to dismiss. Among other things, the court noted that there was no evidence of an actual
deal or promise between the State’s witnesses and the State prior to trial and that the
Petitioner had failed to show how lack of his DNA on the victim would have resulted in
his not being prosecuted or convicted. This court granted the Petitioner’s request to late-
file his notice of appeal, and the matter is now before us on appeal.




                                           -3-
                                        ANALYSIS

      A writ of error coram nobis is an extraordinary remedy by which the court may
provide relief from a judgment under only narrow and limited circumstances. State v.
Mixon, 983 S.W.2d 661, 666 (Tenn. 1999). Tennessee Code Annotated section 40-26-
105 provides this remedy to criminal defendants:

                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. The issue shall be tried by the court without the intervention of a
       jury, and if the decision be in favor of the petitioner, the judgment
       complained of shall be set aside and the defendant shall be granted a new
       trial in that cause.

Tenn. Code Ann. § 40-26-105(b), (c) (2012).

       Our supreme court has stated the standard of review as “whether a reasonable
basis exists for concluding that had the evidence been presented at trial, the result of the
proceedings might have been different.” State v. Vasques, 221 S.W.3d 514, 525-28
(Tenn. 2007) (citation omitted).

       Coram nobis claims are subject to a one-year statute of limitations. Tenn. Code
Ann. § 27-7-103. The one-year statute of limitations, may, however, be tolled on due
process grounds if the petitioner seeks relief based upon newly discovered evidence of
actual innocence. Wilson v. State, 367 S.W.3d 229, 234 (Tenn. 2012). 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 conclude that the trial court properly dismissed the error coram nobis petition
on the basis of the statute of limitations. The petition was filed well beyond the one-year
statute of limitations, and, thus, is untimely. The Petitioner’s claim that he has recently
discovered evidence of alleged pretrial non prosecution agreements between the State and
the State’s key witnesses does not constitute “newly discovered evidence of actual
innocence” that would warrant the tolling of the statute of limitations on due process
grounds. Moreover, as the trial court noted, the Petitioner failed to present anything,
other than his bare assertions, in support of his claim that there were any pretrial
agreements between the State and its witnesses. We, therefore, affirm the summary
dismissal of the petition as time-barred.
                                            -4-
       We further conclude that the trial court properly dismissed the Petitioner’s Motion
for Post-Conviction DNA analysis. Under the Post-Conviction DNA Analysis Act of
2001, the court shall order DNA analysis of “any evidence that is in the possession or
control of the prosecution . . . . , and that is related to the investigation or prosecution that
resulted in the judgment of conviction and that may contain biological evidence,” Tenn.
Code Ann. § 40-30-303 (2012), if the court finds:

             (1) A reasonable probability exists that the petitioner would not have
       been prosecuted or convicted if exculpatory results had been obtained
       through DNA analysis;

            (2) The evidence is still in existence and in such a condition that
       DNA analysis may be conducted;

              (3) The evidence was never previously subjected to DNA analysis or
       was not subjected to the analysis that is now requested which could resolve
       an issue not resolved by previous analysis; and

             (4) The application for analysis is made for the purpose of
       demonstrating innocence and not to unreasonably delay the execution of
       sentence or administration of justice.

Id. § 40-30-304.

       The post-conviction court is granted considerable discretion in its decision about
whether to grant a Petitioner relief under the Post-Conviction DNA Analysis Act, and this
court will not reverse its judgment unless it is unsupported by substantial evidence. See
Sedley Alley v. State, No. W2004-01204-CCA-R3-PD, 2004 WL 1196095, at *3 (Tenn.
Crim. App. May 26, 2004). We agree with the trial court that the evidence the Petitioner
sought to have analyzed would not have prevented his prosecution or established his
innocence of the offenses. Accordingly, we affirm the judgment of the trial court
denying the Petitioner’s request for DNA analysis.

                                       CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgment of the
trial court summarily dismissing the petition for writ of error coram nobis and post-
conviction DNA analysis.

                                                ____________________________________
                                                ALAN E. GLENN, JUDGE
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