        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs September 9, 2014

        JERMAINE CARLTON JORDAN v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                  No. 2006-C-1984    J. Randall Wyatt, Jr., Judge




               No. M2013-02497-CCA-R3-ECN - Filed October 31, 2014




Petitioner, Jermaine Carlton Jordan, pled guilty to one count of attempted first degree murder
and one count of especially aggravated kidnapping in April 2007. Six years later, he filed
a petition for writ of error coram nobis, claiming that he should be granted a new trial based
on newly discovered evidence. The coram nobis court summarily dismissed his petition as
time-barred. Petitioner appealed, arguing that due process considerations require tolling the
statute of limitations. Upon thorough review of the record, we determine that Petitioner has
neither alleged the nature of the evidence nor when it was discovered sufficiently for us to
determine whether it qualifies as a later-arising ground for relief. Therefore, we hold that
due process does not require tolling the statute of limitations. We affirm the decision of the
coram nobis court.


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

T IMOTHY L. E ASTER, J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R. and D. K ELLY T HOMAS, J R., JJ., joined.

Jermaine Carlton Jordan, pro se, Clifton, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Senior Counsel; Victor
S. Johnson III, District Attorney General; and Christopher Buford, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                         OPINION
                            Factual and Procedural Background

       On August 4, 2006, Petitioner was indicted by the Davidson County Grand Jury for
attempted first degree murder, especially aggravated kidnapping, aggravated kidnapping, and
two counts of aggravated assault. On April 27, 2007, Petitioner pled guilty to attempted first
degree murder and especially aggravated kidnapping and received a total effective sentence
of seventeen years, to be served at 100 percent. There was no direct appeal.

        On June 12, 2007, Petitioner filed a pro se petition for post-conviction relief. After
the appointment of counsel, Petitioner filed an amended petition on September 12, 2007.
Petitioner argued that he received ineffective assistance of counsel based on trial counsel’s
failure to adequately interview and investigate witnesses and that his plea was involuntary
and unknowing because counsel erroneously advised him that he would be eligible for
parole. After a hearing, the post-conviction court filed a detailed written order denying relief
because Petitioner failed to prove his claims by clear and convincing evidence. Petitioner
appealed, and this Court affirmed the judgment of the post-conviction court. Jermaine
Jordan v. State, No. M2008-00623-CCA-R3-PC, 2009 WL 1272277 (Tenn. Crim. App. May
6, 2009), perm. app. denied (Tenn. Oct. 19, 2009).

       On May 17, 2013, Petitioner filed a petition for writ of error coram nobis, an amended
petition for writ of error coram nobis, and several motions for production of evidence and
transcripts. On September 17, 2013, the coram nobis court entered an order summarily
dismissing the petition, finding that the petition was time-barred and failed on its face to
allege valid grounds for coram nobis relief. Petitioner filed a motion to reconsider on
October 11, 2013. The coram nobis court denied that motion on October 14, 2013.
Petitioner filed a notice of appeal with this Court on October 29, 2013.

                                           Analysis

        As an initial matter, the State contends that this appeal should be dismissed because
Petitioner did not timely file his notice of appeal. Under Rule 4(a) of the Tennessee Rules
of Appellate Procedure, the notice of appeal must be filed “within 30 days after the date of
entry of the judgment appealed from.” This Court has previously noted that a motion to
rehear or reconsider is not authorized by the Tennessee Rules of Criminal Procedure and,
therefore, does not “suspend the running of the appeal time from the entry of the judgment.”
State v. Lock, 839 S.W.2d 436, 440 (Tenn. Crim. App. 1992) (citing State v. Bilbrey, 816
S.W.2d 71, 74 (Tenn. Crim. App. 1991)); see State v. Turco, 108 S.W.3d 244, 245 n.2 (Tenn.
2003). However, Rule 4(a) also states that “in all criminal cases the ‘notice of appeal’
document is not jurisdictional and the filing of such document may be waived in the interest
of justice.” Therefore, we will excuse Petitioner’s untimely filing of his notice of appeal and

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consider the merits of his contention that due process considerations require tolling the
statute of limitations for filing a petition for writ of error coram nobis.

      Relief by petition for writ of error coram nobis is provided for in Tennessee Code
Annotated section 40-26-105. That statute provides, in pertinent part:

        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). The writ of error coram nobis is “an extraordinary procedural
remedy,” designed to fill “only a slight gap into which few cases fall.” State v. Mixon, 983
S.W.2d 661, 672 (Tenn. 1999) (emphasis in original). The “purpose of this remedy ‘is to
bring to the attention of the [trial] court some fact unknown to the court, which if known
would have resulted in a different judgment.’” State v. Hart, 911 S.W.2d 371, 374 (Tenn.
Crim. App. 1995) (quoting State ex rel. Carlson v. State, 407 S.W.2d 165, 167 (Tenn. 1966)).
The decision whether to grant or deny a petition for writ of error coram nobis on its merits
rests within the sound discretion of the trial court. Harris v. State, 301 S.W.3d 141, 144
(Tenn. 2010) (citing State v. Vasques, 221 S.W.3d 514, 527-28 (Tenn. 2007)).

         A petition for writ of error coram nobis must include: (1) the grounds and the nature
of the newly discovered evidence; (2) why the admissibility of the newly discovered evidence
may have resulted in a different judgment had the evidence been admitted at the previous
trial;1 (3) that the petitioner was without fault in failing to present the newly discovered
evidence at the appropriate time; and (4) the relief sought by the petitioner. Freshwater v.
State, 160 S.W.3d 548, 553 (Tenn. Crim. App. 2004); Hart, 911 S.W.2d at 374-75. In
addition, affidavits containing relevant and material information, in which the affiant has
personal knowledge, should be filed in support of the grounds raised in the petition. Hart,
911 S.W.2d at 374. A court must determine “whether a reasonable basis exists for
concluding that had the evidence been presented at trial, the result of the proceedings might
have been different.” Vasques, 221 S.W.3d at 526.




        1
          A guilty plea is considered a trial for purposes of the coram nobis statute. See Wlodarz v. State, 361
S.W.3d 490, 504 (Tenn. 2012). Relief may be available if the newly discovered evidence calls into question
the knowing and voluntary nature of a guilty plea. Id. at 501 (citing Newsome v. State, 955 S.W.2d 129, 134
(Tenn. Crim. App. 1998)).

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        A petition for coram nobis relief must be filed within one year after the judgment
becomes final. T.C.A. § 27-7-103. For the purposes of coram nobis relief, a judgment
becomes final thirty days after the entry of the judgment in the trial court if no post-trial
motion is filed, or upon entry of an order disposing of a timely filed post-trial motion.
Mixon, 983 S.W.2d at 670. Whether a claim is barred by an applicable statute of limitations
is a question of law, which we review de novo. Harris, 301 S.W.3d at 144 (citing Brown v.
Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn. 2007)). The State bears the burden of
raising the statute of limitations as an affirmative defense. Id.; Sands v. State, 903 S.W.2d
297, 299 (Tenn. 1995).

        Petitioner filed his petition for coram nobis relief almost six years after the judgment
in his case became final, and the coram nobis court summarily dismissed the petition on the
ground that it was untimely filed. The record on appeal contains no pleading from the State
asserting the statute of limitations in response to the petition. However, the State’s failure
to plead this affirmative defense in response to a petition does not result in waiver “‘if the
opposing party is given fair notice of the defense and an opportunity to rebut it’ because ‘the
purpose of the specific pleading requirement is to prevent a party from raising a defense at
the last possible moment and thereby prejudicing the opposing party’s opportunity to rebut
the defense.’” Wilson v. State, 367 S.W.3d 229, 234 (Tenn. 2012) (quoting Sands, 903
S.W.2d at 299). In the case at hand, Petitioner acknowledged in his amended petition that
it was filed after the expiration of the one-year statute of limitations. Additionally, Petitioner
argued in both his original petition and amended petition that the statute of limitations should
be tolled. Therefore, it cannot be said Petitioner was prejudiced by the assertion of the
statute of limitations. See Jerome S. Barrett v. State, No. M2012-01778-CCA-R3-CO, 2013
WL 3378318, at *3 (Tenn. Crim. App. July 1, 2013).

        Despite the one-year statute of limitations, when a petitioner seeks a writ of error
coram nobis based on newly discovered evidence, due process considerations may require
tolling the statute of limitations. Harris, 301 S.W.3d at 145 (citing Workman v. State, 41
S.W.3d 100, 103 (Tenn. 2001). Our supreme court has held that, “before a state may
terminate a claim for failure to comply with procedural requirements such as 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.” Workman, 41
S.W.3d at 102 (quoting Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992)). 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.

       To determine whether due process principles require tolling the statute of limitations,
a court must balance the State’s interest in preventing stale and groundless claims with the

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petitioner’s interest in obtaining a hearing to present a later-arising ground for relief. Id.
(citing Workman, 41 S.W.3d at 103). In balancing these interests, the court must apply a
three-step analysis:

       (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 for relief 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, 903 S.W.3d at 301).

        In this case, Petitioner entered his guilty plea on April 27, 2007. There were no post-
trial motions; therefore, the statute of limitations period began to run on May 27, 2007.
Because Petitioner filed his petition for writ of error coram nobis almost five years after the
statute of limitations expired in May 2008, we must consider the second step in the analysis
and determine whether his asserted grounds for relief “actually arose after the limitations
period would normally have commenced.” Id.

       Petitioner claims that the State withheld exculpatory evidence that should have been
disclosed under Brady v. Maryland, 373 U.S. 83 (1963). Petitioner describes this evidence
as “four DVDs” containing what is variously described as either video-recorded interviews
of State witnesses or recordings of conversations with the victim. However, Petitioner
neither explains in his present pleadings when he discovered the existence of this evidence,
nor describes with any particularity what the evidence is, whether the evidence would have
been admissible at trial, or how the evidence would have affected the outcome of his case
(other than asserting that he might not have pled guilty). As has been so eloquently
explained:

       The sufficiency of the contents of a petition for writ of error coram nobis . . .
       is of utmost importance. Judges anticipate that the petition itself embodies the
       best case the petitioner has for relief from the challenged judgment. Thus, the
       fate of the petitioner’s case rests on the ability of the petition to demonstrate
       that the petitioner is entitled to the extraordinary relief that the writ provides.

Harris, 301 S.W.3d at 150 (Koch, J., concurring in part and concurring in result) (internal
citations omitted). Petitioner bears the burden of “fully and particularly set[ting] forth the

                                               -5-
legal and factual grounds upon which relief is sought.” Id.

        The State asserts that the DVDs Petitioner refers to may be recordings of phone
conversations between Petitioner and the victim that occurred while Petitioner was in jail
awaiting trial on the current charges. If that is the case, then Petitioner, as a party to the
phone call, would have known of the existence of this evidence prior to the expiration of the
statute of limitations period. Additionally, reference is made to “four DVD interviews” in
Petitioner’s appellate brief from his earlier post-conviction proceedings, submitted in June
2008.2 Thus, regardless of the nature of the evidence in question, Petitioner was aware of
the existence of this evidence long before he filed his petition for coram nobis relief, and no
valid reason has been given for the delay in filing.3 See Harris, 301 S.W.3d at 146-47
(finding that a six-year delay after learning of new evidence did not require tolling of the
statute of limitations on due process grounds). Therefore, we find that Petitioner’s claims
are time-barred and that due process does not require tolling the statute of limitations.

       In addition to the supposedly newly discovered evidence, Petitioner claims that his
sentence is illegal because his sentence for attempted first degree murder should be served
at 100%, but the judgment form reflects a release eligibility of 30%. However, this type of
sentencing issue does not involve newly discovered evidence and is, therefore, not a
cognizable ground for relief under the writ of error coram nobis. See T.C.A. § 40-26-105.
Petitioner is not entitled to relief on this ground.

                                                  Conclusion

        Based upon the foregoing reasons, we affirm the judgment of the coram nobis court.




                                                             _________________________________
                                                             TIMOTHY L. EASTER, JUDGE




        2
        This Court may take judicial notice of court records in earlier proceedings of the same case. See
Delbridge v. State, 742 S.W.2d 266, 267 (Tenn.1987).

        3
          Petitioner asserts in his petition that the statute of limitations should be tolled because he was unable
to research relevant case law until March 2012. This is not a valid reason to toll the statute of limitations.

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