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

          STATE OF TENNESSEE v. FREDERICK LEON TUCKER

                 Appeal from the Criminal Court for Davidson County
                      No. 2003A492     Monte Watkins, Judge


                  No. M2013-01077-CCA-R3-CO - Filed May 14, 2014


Petitioner, Frederick Leon Tucker, sought a writ of error coram nobis. The hearing court
found there were no due process concerns which would entitle petitioner to relief and
dismissed the petition as not being filed within the applicable statute of limitations. Finding
no error, we affirm the judgment of the trial court.




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

J OE H. W ALKER, III, S P.J., delivered the opinion of the Court, in which JOHN E VERETT
W ILLIAMS and R OBERT W. W EDEMEYER, JJ., joined.

Jennifer Jessica Hall, Nashville, Tennessee, for the appellant, Frederick Leon Tucker.

Robert E. Cooper, Jr., Attorney General and Reporter; Michelle Consiglio-Young, Assistant
Attorney General; and Victor S. Johnson, III, District Attorney General, for the appellee,
State of Tennessee.

                                         OPINION

       Petitioner was convicted by jury of rape of a child, a Class A felony. As a result, he

received a sentence of twenty-one years. The conviction was affirmed on appeal. State v.

Frederick Leon Tucker, No. M2005-00839-CCA-R3-CD, 2006 WL 547991 (Tenn. Crim.

App. Mar. 7, 2006). As stated in the opinion:
         At trial, the victim’s testimony clearly established that the defendant penetrated the

         inside of her buttocks with his penis when she was eight years old. The victim clearly

         described the circumstances of the rape and specifically identified the area of physical

         contact between her and the defendant. In addition, the victim’s testimony was

         corroborated by the testimony of the victim’s father and Dr. Sanger. Both witnesses

         testified that the victim told them the defendant placed his private part inside her butt.

         Furthermore, the victim’s testimony concerning her rape was corroborated by DNA

         testing of the defendant’s sperm, which was taken from the victim’s anal region.

         Therefore, the evidence overwhelming supports the defendant’s conviction and this

         issue is without merit.




Id. at *5.




         Petitioner sought post-conviction relief. After a hearing, post-conviction relief was

denied. The finding was affirmed on appeal. See Frederick Tucker v. State, No. M2007-

00681-CCA-R3-PC, 2008 WL 2743644 (Tenn. Crim. App. July 14, 2008). Petitioner has

sought habeas corpus relief, which was denied. See Frederick Leon Tucker v. Michael

Donahue, Warden, No. 3:13-cv-0681, 2013 U.S. Dist. LEXIS 114841 (M.D. Tenn., Aug. 14,

2013).




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       Petitioner filed the instant petition for writ of error coram nobis on November 8, 2012.

Counsel was appointed and, after a hearing, the writ was denied. The hearing court found

there were no due process concerns which would entitle Petitioner to relief and dismissed the

petition as not being filed within the applicable statute of limitations.




                                         ANALYSIS




       Tennessee Code Annotated section 40-26-105 provides as follows regarding the writ

of error coram nobis in criminal proceedings:




       Writ of error coram nobis.(a) There is 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. Notice of the suing out of the

       writ shall be served on the district attorney general. No judge shall have authority to

       order the writ to operate as a supersedeas. The court shall have authority to order the

       person having custody of the petitioner to produce the petitioner in court for the

       hearing of the proceeding.(b) 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



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       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 (2010).




       A petition for writ of error coram nobis must usually be filed within one year after the

judgment becomes final. See Tenn. Code Ann. § 27-7-103; State v. Mixon, 983 S.W.2d 661,

670 (Tenn. 1999). It has been determined that a judgment becomes final, for purposes of

coram nobis relief, 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. The parties do not dispute that the petition for writ of error coram nobis

in the case herein was filed outside of the applicable statute of limitations. Petitioner

contends that due process requires that the statute of limitations for filing his petition for writ

of error coram nobis be tolled. This court finds no due process concerns which would entitle

petitioner to relief.




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       Petitioner alleges that the evidence and testimony of Pamela Scretchen’s forensic

interview with the victim was not presented at trial or at his post-conviction hearing, denying

him due process. At the error coram nobis hearing, Petitioner testified that before trial he

knew about and had access to Ms. Scretchen’s forensic interview of the victim and the report

which he now wishes to introduce. Petitioner discussed with his original trial counsel the

issue of calling Ms. Scretchen at trial. His counsel did cross-examine the victim regarding

the interview with Ms. Scretchen. The petitioner had received a copy of Ms. Scretchen’s

report in the discovery response and was aware of the information prior to both trial and

post-conviction proceedings. He admits that he raised the same issues in the post-conviction

hearing as he is raising in his petition for writ of error coram nobis. Petitioner admitted

before the original trial he was aware of the discrepancies that he claims exist between what

the child said to Ms. Scretchen and what the child testified to at trial.




       It was presented at the error coram nobis hearing that the Ms. Scretchen would testify

contrary to the child about the issue of penetration. As stated in the brief of the petitioner: “It

was alleged by the State and determined by the jury that the petitioner anally penetrated the

victim on the night of December 25, 2002, when his penis went inside her anus. But in direct

contradiction of the occurrence of an anal rape, Ms. Pamela Scretchen of the Nashville Child

Advocacy Center reported that in a February 2003 forensic interview with the victim, the

victim told her that the petitioner’s penis was only ‘on top’ of her buttocks and not ‘inside’



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her buttocks.”




       However, a review of the Forensic Interview of February 12, 2003, shows otherwise.

The 8-year-old victim reported that the petitioner “put the cover off of me and he pull my

pants down and he put his dick in my butt. . . .” When asked where [Petitioner] was when

he put his dick in her butt she wrote “on the couch.” The victim was then asked to show how

Petitioner touched her using anatomical dolls. It was during this demonstration that the

victim used the phrase “on top.” Quoting from the report: “She demonstrated the male doll

pulling the pants and underwear down. [The victim] put the male doll’s penis on top of the

buttock of the female doll. When asked if his ‘dick’ went on top or inside, she said, ‘On

top.’” Later in the report, the victim stated that Petitioner had done the same thing on another

occasion. Quoting from the report: “She reported that [Petitioner] did the ‘same thing.’ When

asked if [Petitioner] touched on top or inside of her ‘butt,’ she said, ‘Inside.’ When asked to

describe what she felt, she wrote, ‘Not good.’”




       As noted by the coram nobis court in its opinion, both trial defense counsel and

assistant district attorney questioned the victim regarding the interview whether the

Petitioner’s private part touched her “inside her butt” or “on top.” Petitioner has failed to

show a due process issue to toll the statute of limitations and has failed to show the proffered



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testimony is newly discovered evidence, or “may have resulted in a different judgment had

the evidence been admitted at the previous trial.” Hart, 911 S.W.2d at 374-75. As stated in

the opinion affirming Petitioner’s rape conviction, the evidence of Petitioner’s guilt was

overwhelming. Therefore, we conclude that there was no error in the judgment of the coram

nobis court.




                                     CONCLUSION




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




                                                  _________________________________

                                                  JOE H. WALKER, III, SPECIAL JUDGE




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