        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                January 12, 2010 Session

            ARTHUR L. ARMSTRONG v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                     No. C2854      J. Randall Wyatt, Jr., Judge




                  No. M2008-02328-CCA-R3-CO - Filed July 30, 2010


The Petitioner, Arthur L. Armstrong, was convicted in 1978 of robbery, rape, kidnapping,
and two counts of crime against nature and was sentenced to two life sentences, a twenty-
year term, and two indeterminate terms of not less than ten years nor more than fifteen years,
all of which the trial court ordered to be served consecutively. In March 2005, the Petitioner
filed a petition for a writ of error coram nobis, in which he alleged newly discovered
evidence, and the trial court dismissed the petition after a hearing. On appeal, he contends
that the dismissal was an unconstitutional denial of his right to due process. After careful
review, we affirm the trial court’s judgment.

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

R OBERT W. W EDEMEYER, delivered the opinion of the Court, in which D AVID H. W ELLES,
J., and F RANK G. C LEMENT, J R., Sp. J., joined.

Patrick G. Frogge, Nashville, Tennessee, for the appellant, Arthur L. Armstrong.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General;
Mark A. Fulks and Clarence E. Lutz, Assistant Attorney General; Victor S. Johnson, III,
District Attorney General; Amy Eisenbeck, Assistant District Attorney General, for the
Appellee, State of Tennessee.

                                        OPINION
                                          I. Facts
                                      A. Background

      In our opinion on the Petitioner’s previous appeal, we recited the underlying facts and
procedural history as follows:
       This case presents a protracted procedural history. The facts underlying
the convictions at issue in this case were summarized by this Court on direct
appeal as follows:

       [T]he victim was accosted by the [Petitioner] and Ronny Harris
       at about 11:00 o'clock on February 11, 1977, as she was getting
       out of her father’s automobile which she had just parked at Fisk
       University in Nashville. At gunpoint, they took her to a room
       where the [Petitioner] raped her and Harris forced her to
       perform an oral sex act upon him, ejaculating in her mouth and
       forcing her at gunpoint to swallow the semen. Harris also raped
       her at this location.

       They then took her to a large house where Harris left her with
       the [Petitioner] for a time. Pointing the pistol at her and
       threatening to kill her, the [Petitioner] forced her to perform oral
       sex on him, submit to anal intercourse two times and submit to
       normal sexual intercourse two times. While they were there, the
       [Petitioner] forced the victim to give him the .14 K[sic] gold star
       necklace which she was wearing.

       The victim was then forced to go to an apartment complex
       where Earline Harris House resided with the defendant, Ronny
       Harris. Ms. House was the sister of Ronny Harris and the
       girlfriend of the [Petitioner]. The victim stated that she did not
       ask this woman for help because she was convinced that the
       woman already knew of the crimes being committed against her.

       At gunpoint, Harris and the [Petitioner] took the victim’s watch
       and rings, her father’s tennis racket and other items of personal
       property worth approximately $3,000.00.

       The victim was not released until the following morning. After
       being released, the victim reported the outrage to the police.
       She selected the [Petitioner’s] photograph from one stack and
       Ronny Harris’s photograph from another stack.             After
       identifying a photograph of the [Petitioner], she noted that he
       was wearing the gold star necklace which he had taken from her
       at the large house. She identified other photographs of the
       [Petitioner] and made a positive identification of him at trial.

                                       -2-
       Though her eyes were taped a part of the time, she had limited
       vision because the tape became partly unstuck.

       The victim’s 14 k. [sic] gold star necklace and her father’s
       tennis racket were recovered by police from the [Petitioner’s]
       apartment. Other items of property taken from her were
       recovered from the apartment which Harris shared with Earline
       House. The victim testified that the abductor she identified as
       the [Petitioner] told her to call him “Nate.” The [Petitioner]
       owned a T-shirt with the word “Nat” on it and it was established
       that this was one of his nicknames.

Arthur L. Armstrong v. State, No. C-2854, slip op. at 1-3 (Tenn. Crim. App.,
Nashville, Feb. 27, 1980).

       On November 3, 1978, a Davidson County jury convicted the Petitioner
of armed robbery, rape, kidnapping, and two counts of crime against nature.
For these convictions, he received two life sentences for the rape and
kidnapping, twenty years for the armed robbery, and two indeterminate terms
of not less than ten years nor more than fifteen years for the crimes against
nature. Id. at 1. All sentences were to be served consecutively. Id.

       This Court affirmed the Petitioner’s convictions and sentences on direct
appeal. See id. at 7. In evaluating the sufficiency of the evidence to support
the Petitioner’s convictions, the court reasoned:

       The [Petitioner] did not testify in his own behalf and his
       principal defense was that of identification. Among other
       things, he insists that the victim’s identification evidence was
       invalidated by her failure to mention his two gold front teeth.
       This, and the other discrepancies alleged by the [Petitioner],
       went to the weight of the evidence for consideration of the jury
       along with all of the other proof in the case. After reviewing
       this voluminous record, we find overwhelming and convincing
       evidence upon which a rational trier of fact could be convinced
       beyond a reasonable doubt of the [Petitioner’s] guilt.


Id. at 3-4. No permission to appeal was filed.



                                      -3-
        Nine years later, on October 18, 1989, the Petitioner filed a petition
seeking post-conviction relief raising four allegations of ineffective assistance
of counsel. The trial court denied relief. On appeal, the Petitioner argued that
his trial counsel was ineffective for failing “to file pretrial motions to suppress
the photographic show-up.”               Arthur Armstrong v. State, No.
01C019003CC00069, 1990 WL 160915, at *1 (Tenn. Crim. App., Nashville,
Oct. 25, 1990). This Court affirmed the denial of relief, finding that the
“decision not to contest the photographic identification” was “a reasonable
tactical decision.” Id. Our supreme court denied his application for
permission to appeal on January 22, 1991.

       In June of 1992, the Petitioner filed for habeas corpus relief in the
Federal District Court for the Middle District of Tennessee. The petition was
dismissed without a hearing because the Petitioner “had failed to properly
exhaust three out of his four claims for relief.” Armstrong v. Morgan, 372
F.3d 778, 780 (6th Cir. 2004); see also Arthur L. Armstrong v. State, No.
01C01-9311-CR-0043, 1994 WL 695424, at *1 (Tenn. Crim. App., Nashville,
Dec. 8, 1994).

       On April 21, 1993, the Petitioner “filed a pro se petition for a state writ
of habeas corpus and a delayed appeal to the Supreme Court.” Armstrong,
1994 WL 695424, at *1. The trial court dismissed the habeas corpus petition,
finding that “the issues raised by [the Petitioner] were not grounds for habeas
corpus relief, that if the petition were considered as one seeking
post-conviction relief, it was time barred by the provisions of Tennessee Code
Annotated Section 40-30-102, that the issues were either previously
determined or waived, and that the trial court could not decide whether the
Court of Criminal Appeals would hear a delayed appeal.” Id.

       The Petitioner appealed the dismissal of his petition to this Court and,
for the first time, he alleged a violation of Brady v. Maryland, 373 U.S. 83
(1963). Specifically, the Petitioner alleged:

       [T]he police investigative file contains exculpatory evidence and
       that the prosecution withheld this material from defense counsel.
       [The Petitioner] further alleges that he was unaware of this
       exculpatory material until counsel discovered it shortly after the
       denial of his petition for a writ of habeas corpus. According to
       [the Petitioner’s] brief, the exculpatory material is found in a
       police report in which the investigating officer wrote: “The

                                        -4-
       victim stated that she did not get a good look at her assailants,
       therefore, having her look at mug shots would be useless.”

Armstrong, 1994 WL 695424, at *3. This Court declined to address the Brady
issue; however, we noted that, even though the statute of limitations had
expired, the Petitioner could file a petition for post-conviction relief under the
authority of Burford v. State, 845 S.W.2d 204 (Tenn. 1992). In so concluding,
we stated:

       [The Petitioner] alleges that the prosecution failed to disclose a
       police report that contained information relevant to the validity
       of his identification by the victim, and that the material was
       discovered only recently. On its face, it appears that this is
       precisely the scenario that the Supreme Court was considering
       when it forged the rule in Burford.

Armstrong, 1994 WL 695424, at * 3.

       The Petitioner then “filed a pleading entitled ‘Amended Petition for
Post-Conviction Relief’ asserting that the case had been remanded to the trial
court.” Arthur L. Armstrong, No. 01C01-9608-CR-00331, 1997 WL 602939,
at *1 (Tenn. Crim. App., Nashville, Sept. 30, 1997). Even though the
Petitioner was mistaken about remand on the Brady issue, the trial court held
an evidentiary hearing and dismissed the petition. Id. On appeal, this Court
noted the following facts relevant to the issue:

       The issue regarding Brady material involved two (2) police
       reports which Petitioner claimed were exculpatory and were not
       provided to him by the State. It is apparent from the record that
       Petitioner’s two attorneys at the original trial were both
       deceased by the time the present petition was heard in the trial
       court. However, an attorney in Nashville who formerly was an
       Assistant District Attorney in Davidson County and who
       prosecuted the Petitioner’s case testified at this most recent
       hearing. He stated the reports were provided to defense counsel
       prior to trial. The trial court specifically accredited the
       testimony of the former prosecutor, and found that the police
       reports were indeed provided to Petitioner’s attorneys prior to
       his trial in 1978.



                                       -5-
       At the evidentiary hearing, the Petitioner also alleged that his
       trial counsel was ineffective for not attacking the credibility of
       the victim, not appealing the apparent Brady violation, and not
       providing the police reports to the Petitioner. The trial court
       found that all of these issues were either previously raised in a
       prior post-conviction hearing, had no merit because no Brady
       violation was found, or failed to show prejudice to Petitioner by
       any alleged ineffective acts of his trial counsel.

Id. at *1-2. We then concluded that “the evidence does not preponderate
against the finding of the trial court.” Id. at *2. On April 13, 1998, permission
to appeal was denied.

In March of 1999, the Petitioner again filed for habeas corpus relief in the
Federal District Court for the Middle District of Tennessee. Armstrong, 372
F.3d at 780. In June 2002, the Petitioner sought leave to amend the petition,
which was granted. Id. In the amended petition, the Petitioner argued that
“the state court erred in concluding that no Brady violation occurred and that
if the district court found that the exculpatory materials were presented to [the
Petitioner’ s] original counsel, then his trial attorneys were constitutionally
ineffective.” Id. On September 30, 2002, the district court “granted summary
judgment in favor of Warden Morgan concluding that [the Petitioner] had
procedurally defaulted his ineffective assistance of counsel claim and that the
state court’s factual determination that [then Assistant District Attorney]
Raybin disclosed the reports to [the Petitioner’s] counsel was entitled to the
statutory presumption of correctness.” Id. at 780-81. The United States Court
of Appeals for the Sixth Circuit affirmed, id. at 783, and the United States
Supreme Court denied certiorari on November 8, 2004, Armstrong v. Morgan,
543 U.S. 982 (2004).

On March 10, 2005, the Petitioner, pro se, filed an “Application for a Writ of
Error Coram Nobis.” The Petitioner again claimed that the State failed to
disclose Brady material, i.e., two medical documents. In the first document,
Physical Examination Progress Notes, it is noted that the victim’s “eyes were
taped so she could not see the men.” In the second document, the Emergency
Room Record, it is stated that the victim’s “eyes were taped, and she never saw
them.” (Emphasis in original). The Petitioner submitted that defense counsel
made a specific request for exculpatory evidence, and the State withheld the
exculpatory medical documents in violation of Brady v. Maryland. The
Petitioner further stated that the documents were subsequently discovered

                                       -6-
        “while conducting investigation for appellate proceedings.” As an alternative
        argument, the Petitioner contended that, if the documents were presented to his
        trial counsel, then trial counsel rendered ineffective assistance by failing to
        impeach the victim with the statements contained in the medical documents.
        By order dated April 12, 2005, the trial court determined that the Petitioner
        failed to file his petition within the one-year statute of limitations and failed
        to demonstrate that due process required tolling of the statute of limitations.

Arthur L. Armstrong v. State, No. M2005-01325–CCA-R3-CD, 2006 WL 1626726, at *1-4
(Tenn. Crim. App., at Nashville, June 8, 2006) (footnote omitted). The Petitioner appealed
the trial court’s dismissal of his petition for writ of error coram nobis to this Court. Upon
review, this Court concluded that if the evidence proved “the State [had] withheld the
evidence, the Petitioner’s ‘allegations of newly discovered evidence are appropriately
addressed in a petition for writ of error coram nobis[.]’” Id. at *8 (citing Freshwater v. State,
160 S.W.3d 548, 555-56 (Tenn. Crim. App. 2004)). We remanded the case for an evidentiary
hearing on the Petitioner’s claim of newly discovered evidence, and we affirmed the trial
court’s dismissal of the Petitioner’s allegation of ineffective assistance of counsel.

                    B. Hearing on Petition for Writ of Error Coram Nobis

        After our remand, the State filed a motion to dismiss the petition for writ of error
coram nobis as untimely. The trial court held a hearing where both the Petitioner and the
prosecuting attorney at the Petitioner’s trial testified. Neither of the Petitioner’s defense
attorneys were available to testify as both had passed away by the time of the hearing. At
that hearing, the Petitioner testified that, at the time of the hearing, he had been in prison for
thirty-one years based upon his convictions for armed robbery, kidnapping, rape, and crimes
against nature. His defense attorneys were Dan Garfinkle and Bill Wilson and the
prosecutors were David Raybin and Harold McDonough. The Petitioner described himself
as actively involved in his defense, saying that he was first represented by Pat Kennedy but
that, two weeks before trial, he retained Garfinkle. On the day of trial, Garfinkle arrived with
Wilson and informed the Petitioner that Wilson would be assisting with the trial.

        The Petitioner1 testified about allegedly discovering the existence of medical reports

        1
         Both the Petitioner and the prosecuting attorney, Raybin, testified about the police reports created
by Detective Donzaleigh Heard, which the Petitioner said he was not given before trial. The Petitioner
previously filed a petition for post-conviction relief alleging that the State withheld these two police reports,
violating Brady. Armstrong, 1997 WL 602939, at *1. The post-conviction court held a hearing and
dismissed the petition, finding that Raybin was credible when he testified that the police reports were indeed
provided to the Petitioner’s attorneys prior to his trial in 1978. This Court affirmed that dismissal. Id. at *2.
                                                                                                   (continued...)

                                                      -7-
that he contended were exculpatory. He said he filed a federal habeas corpus petition in the
United States District Court. The habeas court appointed him federal counsel, who hired an
investigator, and the investigator discovered the existence of two medical reports from
General Hospital, where the victim had been treated. The first report stated that the victim
told hospital personnel that she never saw “them,” meaning her assailants. The second
document was authored by medical examiner Dr. Simpkins, who testified at the trial that the
victim stated that she had not been hit, scratched, or cut during the attack and that her eyes
were taped so she could not see the men. The Petitioner said his federal habeas corpus
counsel amended his habeas petition when he learned of the existence of these documents.
He said none of his previous attorneys had shown him these medical reports.

      The Petitioner said that his trial counsel, Garfinkle, testified at the 1989 post-
conviction hearing that he had destroyed the Petitioner’s original file ten years after the trial.

        On cross-examination, the Petitioner testified that defense counsel at his original trial
called Earlene Harris House, with whom he had “social ties,” as an alibi witness. House
testified at trial that the Petitioner was at her house when House’s brother brought the victim
through the door. House also testified that the victim’s necklace was left at her house. The
Petitioner agreed that House testified that the victim in this case did not appear to have been
through any type of “ordeal” and did not mention that the victim’s eyes were taped shut. The
Petitioner agreed that House’s testimony contradicted the victim’s statement that her eyes
were taped shut. The Petitioner maintained that he had not been given the medical records
as part of discovery and did not learn of their existence until after his first post-conviction
hearing.

        On redirect examination, the Petitioner identified the transcript of his 1989 post-
conviction hearing and testified no mention was made in that hearing of either of the medical
reports. The Petitioner then identified a transcript from his 1996 post-conviction hearing and
testified that these transcripts, too, did not contain a reference to the medical reports. The
Petitioner believed no one referred to the medical reports in these hearings because the State
never produced the medical reports to his post-conviction attorney. The Petitioner next
identified a transcript from his original trial and noted that it, too, made no reference to the
medical reports.

      The Petitioner testified that, at his 1996 post-conviction hearing, he learned the
lawyers and the trial judge had held an ex parte meeting without him present. He said he


        1
         (...continued)
Therefore, we will not discuss or recount the testimony offered at the present evidentiary hearing about those
police reports.

                                                     -8-
never received a transcript, recording, or any other documentation about that meeting. He
later learned that the subject of this meeting was discovery and the complete disclosure by
the district attorney of all documentation in this case.

        David Raybin, the assistant district attorney who prosecuted the Petitioner, testified
he worked as a prosecutor for seven years before entering private practice. Raybin testified
that the Petitioner’s two attorneys at his pre-trial and trial proceedings, Wilson and Garfinkle,
were both highly experienced criminal defense attorneys who had since passed away. Raybin
testified he provided “open-file” discovery in this case due to the gravity of the charges and
the amount of evidence that the State had against the Petitioner, in hopes that the Petitioner
would plead guilty. Raybin said he also provided his entire file to the defense as the trial
drew near because he wanted to file a discovery request in order to ascertain how the
Petitioner intended to defend the case. To that end, Raybin invited the defense attorney to
his office, gave the defense attorney a copy of every paper in the file, and allowed him to
view the physical evidence. Raybin clarified that the Petitioner was also a suspect in fourteen
or fifteen other rape cases, but he did not give the Petitioner’s attorney a copy of the
documents involving those investigations, but gave him copies of all of the documents
pertinent to the rape charge involved in this case. Raybin testified that the Petitioner’s
defense attorney, Garfinkle, testified at the Petitioner’s 1989 post-conviction hearing that
Raybin had offered Garfinkle “open-file” discovery in this case.

        Raybin testified that at the Petitioner’s trial Dr. Simpkins, who was “sort of the
medical examiner” at the time, testified that he had familiarized himself with the reports of
the emergency room doctors before he examined the victim. Raybin said he never would
have allowed the doctor to testify about records that the State had not disclosed to the
defense. Raybin explained that under the rules of discovery, he was obligated to provide the
medical records to the defense before he was allowed to put on an expert witness, reiterating
that this decision was not within his discretion but was mandatory. Raybin said he never
would have held back exculpatory evidence.

        Raybin agreed that the Petitioner’s identity was an important factor in this case and
that the victim’s testimony was an integral part of proving that factor. He said, however, that
additional evidence proved the Petitioner’s identity: the tennis racket stolen from the victim’s
car was found in a search of the Petitioner’s possessions; the victim’s rapists took from her
a star necklace, which the Petitioner later wore in a mug shot taken as a result of his arrest
on an unrelated gun charge; and the police recovered the star worn by the Petitioner, and the
victim identified it.

       Raybin said he examined his file from the Petitioner’s case in preparation for this
hearing. In it, he found multiple copies of the medical reports, and he explained that the

                                               -9-
copies were there because he provided a copy to the defense.

        On cross-examination, Raybin agreed the Petitioner’s case was one of his first trials,
and it was a very important case to him. Raybin agreed that there were documents related
to this case that were not in his file because they were maintained by the police department
or another agency. Raybin said he was aware of one report by Detective Heard that he failed
to provide through open-file discovery, explaining he was unaware of the document that was
maintained by the police department. Before the trial, the defense requested this document,
the trial judge admonished Raybin for not providing it, Raybin retrieved it from the police,
and Raybin then provided it to the Petitioner’s defense attorneys. As to the meeting wherein
the trial judge admonished him, Raybin testified that the Petitioner’s defense attorneys were
present but a court reporter was not.

       Raybin was asked to speculate why the Petitioner’s defense attorneys, who were very
good attorneys, would not have impeached the victim with Detective Heard’s report that the
victim said she could not see her assailant. Raybin explained that the Petitioner’s defense
was based upon Ms. House’s testimony that the victim was with the Petitioner’s co-defendant
willingly. Ms. House testified that she saw the victim at her house with the co-defendant and
nothing seemed abnormal. Raybin recalled that Ms. House was a good witness who had no
prior criminal convictions and whom he could not impeach. He speculated, therefore, that
the defense attorneys did not cross-examine the victim about her inability to identify her
attacker because it would have seemed inconsistent with their defense that the victim was a
willing participant.

       Raybin went on to explain that the defense team introduced a picture of the
Petitioner’s brother, who looked very much like the Petitioner. Raybin opined that the
defense team wanted to commit the victim to her identification of the Petitioner and then
show how similarly the Petitioner looked to his brother and allege that it was the Petitioner’s
brother who was involved in this rape and kidnapping and not the Petitioner.

        Raybin specifically recalled obtaining the victim’s medical records in this case from
General Hospital, and he identified a letter by which he did so. Those documents were part
of his file that he copied and gave to the Petitioner’s defense attorneys.

       On redirect examination, Raybin testified that both of the medical documents the
Petitioner alleged were undisclosed were in his original file in a folder titled “Dr.
Simpkins/medical.”

                                         II. Analysis



                                             -10-
      A writ of error coram nobis is available to a defendant in a criminal prosecution.
T.C.A. § 40-26-105(a) (2006). The decision to grant or to deny a petition for the writ of error
coram nobis on its merits rests within the sound discretion of the trial court. State v. Ricky
Harris, 301 S.W.3d 141, 144 (Tenn. 2010) (hereinafter “Harris II”) (citing State v. Vasques,
221 S.W.3d 514, 527-28 (Tenn. 2007)). Tennessee Code Annotated section 40-26-105(b)
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.

        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);
State v. Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002). As previously noted by our
Court, “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. 1996)).

       To establish that he is entitled to a new trial, the Petitioner must show: (a) the grounds
and the nature of the newly discovered evidence, (b) why the admissibility of the newly
discovered evidence may have resulted in a different judgment if the evidence had been
admitted at the previous trial, (c) that the Petitioner was without fault in failing to present the
newly discovered evidence at the appropriate time, and (d) the relief sought. Hart, 911
S.W.2d at 374-75. Affidavits should be filed in support of the petition or at some point in
time prior to the hearing. Id. at 375.

              The grounds for seeking a petition for writ of error coram nobis are not
       limited to specific categories, as are the grounds for reopening a
       post-conviction petition. Coram nobis claims may be based upon any “newly
       discovered evidence relating to matters litigated at the trial” so long as the
       petitioner also establishes that the petitioner was “without fault” in failing to
       present the evidence at the proper time. Coram nobis claims therefore are
       singularly fact-intensive. Unlike motions to reopen, coram nobis claims are
       not easily resolved on the face of the petition and often require a hearing.

Harris v. State, 102 S.W.3d 587, 592-93 (Tenn. 2003) (hereinafter “Harris I”).

                                               -11-
        The statute of limitations for seeking a writ of error coram nobis is one year from the
date the judgment becomes final in the trial court. T.C.A. § 27-7-103; Harris II, 301 S.W.3d
at 144; Mixon, 983 S.W.2d at 671. 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. Harris II, 301 S.W.3d at 144 (citing 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. Id. (citing Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn. 2007)). We
construe the coram nobis statute of limitations consistently with the longstanding rule that
persons seeking relief under the writ must exercise due diligence in presenting the claim. Id.
(citing Mixon, 983 S.W.2d at 670). The State bears the burden of raising the bar of the
statute of limitations as an affirmative defense. Id. (citing Harris I, 102 S.W.3d at 593).

       In this case, the Petitioner was convicted by a jury in November of 1978. This Court
affirmed the convictions on February 27, 1980. The Petitioner filed the petition for writ of
error coram nobis that is the subject of this appeal on March 10, 2005. The parties do not
dispute that the statute of limitations, if not tolled, expired many years before the filing of the
instant petition.

       In this case, the State appropriately raised the statute of limitations in the trial court.
The trial court originally ruled that the petition was time-barred and dismissed the petition.
On appeal, this Court concluded that if the evidence proved “the State [had] withheld the
evidence, the Petitioner’s ‘allegations of newly discovered evidence are appropriately
addressed in a petition for writ of error coram nobis[.]’” Arthur L. Armstrong v. State, 2006
WL 1626726, at *8. We remanded the case for an evidentiary hearing on the Petitioner’s
claim of newly discovered evidence. At the evidentiary hearing, the State again contended
that due process considerations did not require the tolling of the statute of limitations and
also that the petition should be dismissed on its merits.

        The Petitioner contends in his reply brief that his petition was timely filed because this
Court specifically held that the statute of limitations was waived in its remand order. The
landscape of the law on a writ of error coram nobis has changed, however, since we reversed
this case for a hearing to determine the validity of the Petitioner’s claims of newly discovered
evidence. We will, therefore, first address whether due process considerations require a
tolling of the statute of limitations before we address the issues contained in the petition on
their merits.

       Since our decision in the Petitioner’s first appeal, the Tennessee Supreme Court
released a case we find instructive, Harris v. State, 301 S.W.3d 141 (Tenn. 2010) (hereinafter

                                               -12-
“Harris II”). In Harris II, the Court noted that, when a petitioner seeks a writ of error coram
nobis based on newly discovered evidence of actual innocence, due process considerations
may require tolling of the statute of limitations. Id. at 145 (emphasis added) (citing
Workman, 41 S.W.3d at 101). These due process considerations are based upon the principle
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.”
Id. (citing 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. Id. (citing Vaughn v. State,
202 S.W.3d 106, 115 (Tenn. 2006)).

        The Harris II decision instructs that, in order to determine whether due process
requires tolling, a court must weigh a petitioner’s interest in obtaining a hearing to present
a later-arising ground for relief against the State’s interest in preventing stale and groundless
claims. Harris II, 301 S.W.3d at 145 (citing Workman, 41 S.W.3d at 103). In balancing
these interests, a court should utilize 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 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)).

        In conducting the first part of this three-part analysis in this case, we have judicially
noticed the record from the Petitioner’s first direct appeal, which was contained in our
archives, and that record evinces that the trial court overruled the Petitioner’s motion for new
trial on February 15, 1979. Therefore, the limitations period normally would have begun to
run on March 17, 1979, thirty days after the trial court denied the Petitioner’s motion for new
trial. The statue of limitations would have expired on March 18, 1980, almost twenty-five
years before the Petitioner filed his first petition for writ of error coram nobis in 2005.

       The second step in the analysis requires a determination of whether the Petitioner’s
grounds for relief, the alleged non-disclosure of medical records, arose after the limitations
period normally would have commenced. As in Harris II, the factual allegations relevant to
whether these grounds are later-arising are subject to considerable dispute. Harris II, 314
S.W.3d at 145 (citing Harris I, 102 S.W.3d at 596 (observing that the factual allegations

                                              -13-
relevant to the tolling issue were subject to considerable dispute) (Holder, J., concurring)).
In fact, the State contends that the disputed evidence was in the Petitioner’s defense
attorney’s possession and that they did not use the evidence for strategic reasons. The
Supreme Court in Harris II stated, however, that “[i]f tolling depended only on whether the
grounds were later-arising, we would agree with the Court of Criminal Appeals that an
evidentiary hearing would be necessary to resolve the issue.” Id. at 145-46 (noting that the
Harris I Court was divided about whether Harris presented a “later-arising” claim). For the
sake of thoroughness, we will assume that the Petitioner’s claim herein is “later-arising” and
move on to the third part of the analysis.

       The third step in the analysis requires a determination of whether the Petitioner was
given a reasonable opportunity to present his claims. The Tennessee Supreme Court has
addressed this issue on three prior occasions. Most recently, in Harris II, the Court
concluded that due process did not require a tolling of the statute of limitations where a
petitioner’s delay is “unreasonable under the circumstances of the case”:

       The time within which Mr. Harris filed his petition for writ of error coram
       nobis exceeds the reasonable opportunity afforded by due process. Mr.
       Harris’s delay in seeking coram nobis relief–six years with respect to the alibi
       evidence and twenty-one months with respect to the third-party confession–is
       unreasonable under the circumstances of this case.

Harris II, 301 S.W.3d at 147.

        Similarly, in Workman, a capital murder case, the petition for writ of error coram
nobis was filed approximately thirteen months after the petitioner obtained the evidence at
issue. The Court concluded that the time within which the petition was filed did not exceed
the reasonable opportunity afforded by due process and, thus, tolled the statute of limitations
for the petitioner. Workman, 41 S.W.3d at 103. In Sample v. State, 82 S.W.3d 267 (Tenn.
2002), our highest Court dealt with this issue in the context of a post-conviction capital case
and declined to hold that the petitioner’s delay of sixteen months after he obtained the
evidence at issue was “in and of itself unreasonable.” Id. at 276.

       Turning to address the reasonableness of the delay in this case, we note that on March
3, 2009, the Petitioner filed an affidavit in support of his petition for writ of error coram
nobis. In that affidavit, the Petitioner swore that he filed a habeas corpus petition in the
United States District Court in 1999. In his original affidavit dated August 22, 2006, which
supported his original writ of error coram nobis, the Petitioner swore that his appointed
counsel’s investigator, Ms. King, discovered the two medical reports in response to a
discovery request filed June 23, 2000. In 2002, the Petitioner amended his petition to include

                                             -14-
those two reports. The Petitioner did not file his petition for a writ of error coram nobis until
2005, at least three years after he allegedly discovered the existence of the medical reports.
We could conclude then that the Petitioner’s delay in seeking coram nobis appears, on its
face, to be unreasonable under the circumstances of this case.

        Our analysis, however, does not end here. The Harris II Court clearly stated that the
Harris II case presented “an opportunity to clarify when delay in seeking coram nobis relief
may be unreasonable as a matter of law, keeping in mind that each case must stand on its
own facts.” Harris II, 301 S.W.3d at 146. Further, the Court stated in a footnote that “[i]f
there is a reasonable doubt as to the applicability of the procedural bar and the surrounding
circumstances are not adequately developed, prudence may warrant an evidentiary hearing.”
Id. at n.3.

       The Petitioner’s case was pending in federal court on a federal habeas corpus petition
when he says he “discovered” the existence of the medical reports. While he could have
simultaneously filed a petition for a writ of error coram nobis, he swore in his affidavit
supporting his original writ of error coram nobis,“On my attorney’s advice I was told that I
had to wait until the federal courts had ruled on the matter before it already, or the Petition
for Habeas Corpus would be dismissed.” The Sixth Circuit Court of Appeals decision on the
Petitioner’s federal habeas corpus petition indicates that he filed his federal habeas corpus
petition in March 1999 and amended the petition in 2002 to include Brady allegations based
upon the two police reports and the two medical reports. Armstrong v. Morgan, 372 F.3d
778, 781 (6th Cir. 2004). The Sixth Circuit concluded that the Petitioner had not proven that
the State suppressed either the two police reports or the two medical reports. Addressing the
two medical reports, the Sixth Circuit stated:

       [W]e find no evidence to indicate that the medical reports were withheld
       during the initial trial. Rather, our review of the record indicates that the
       defense was fully aware of such reports; indeed, these reports were repeatedly
       referred to during the trial. See Joint Appendix (“J.A.”) at 6127 (“The staff
       hospital emergency room record was available to me . . . .”); J.A. at 628
       (referring to the second report taken by the staff physician three hours after the
       initial report).

       Therefore, in light of our Supreme Court’s recent decision in Harris II, the findings
of the Sixth Circuit, and our own review of the record from the Petitioner’s initial trial and
record on appeal, we refrain from tolling the statute of limitations in this case. That being
said, however, an evidentiary hearing took place and is part of the record in this case.
Therefore, in the interest of justice and in the event of further review, we will examine the
Petitioner’s claim on its merits.

                                              -15-
        Under Brady v. Maryland, “suppression by the prosecution of evidence favorable to
an accused upon request violates due process where the evidence is material either to guilt
or to punishment.” Brady, 373 U.S. at 87. Evidence that is favorable to an accused includes
proof which may be used to impeach the prosecution’s witnesses. State v. Copeland, 983
S.W.2d 703, 706 (Tenn. Crim. App. 1998) (citing Giglio v. United States, 405 U.S. 150
(1972)). However, “the evidence is material only if there is a reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have been
different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in
the outcome.” United States v. Bagley, 473 U.S. 667, 682 (1985).

     Thus, a criminal defendant must satisfy the following four prerequisites in order to
demonstrate a due process violation under Brady v. Maryland:

       1. The defendant must have requested the information (unless the evidence is
       obviously exculpatory, in which case the State is bound to release the
       information whether requested or not);

       2. The State must have suppressed the information;

       3. The information must have been favorable to the accused; and

       4. The information must have been material.

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). The defendant has the burden of proving
a Brady violation by a preponderance of the evidence. Id. “The key to proving a
constitutional violation is to show that the omission is of such significance as to deny the
defendant the right to a fair trial.” Id.

         The Petitioner has not met his burden of proving a Brady violation because he has not
shown, by a preponderance of the evidence, that the State suppressed the two medical reports
at issue. The Petitioner testified at the evidentiary hearing that an investigator hired by the
attorney appointed to represent him in his federal habeas corpus petition discovered the
existence of two medical reports from General Hospital. The Petitioner said none of his
previous attorneys had shown him these medical reports. He conceded, however, that his
trial attorney had previously testified that he destroyed his copy of the Petitioner’s file.

        Raybin, who prosecuted the Petitioner, testified that he personally wrote a letter to
General Hospital requesting all the victim’s medical records, and he identified a copy of that
letter at the evidentiary hearing. Raybin stated he located in his file from the Petitioner’s
trial, under a sub-folder titled “Dr. Simpkins/medical,” copies of both of the medical reports

                                             -16-
the Petitioner complained he never received. He explained that the folder contained copies
because he gave a copy to the Petitioner’s defense attorneys as part of his open file discovery.
Raybin expressed certainty that he provided the defense team a copy of these two medical
records. He opined that the Petitioner’s defense attorneys did not cross-examine the victim
about this evidence because their theory of defense was based upon House’s testimony that
the victim was with the Petitioner’s co-defendant willingly and did not seem in distress.
Raybin also stated that the defense team introduced a photograph of the Petitioner’s brother,
who closely resembled the Petitioner, in support of a secondary theory that the victim saw
the Petitioner’s brother and not the Petitioner himself. Further, as the Sixth Circuit noted
when it reviewed this case, there was mention at the Petitioner’s original trial about these two
medical reports. We conclude, as did the trial court, that this testimony does not support the
Petitioner’s assertion that the State suppressed the two medical reports at issue. He has not,
therefore, proven a Brady violation. As such, he is not entitled to relief pursuant to a writ of
error coram nobis.

                                       III. Conclusion

       After a thorough review of the record and the applicable law, we conclude the
Petitioner has not proven that the State suppressed evidence in violation of Brady, and,
therefore, the Petitioner is not entitled to relief pursuant to a writ of error coram nobis.


                                                     _________________________________
                                                     ROBERT W. WEDEMEYER, JUDGE




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