         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                             Assigned on Briefs May 11, 2004

                STATE OF TENNESSEE v. ERIC C. PENDLETON

                Direct Appeal from the Criminal Court for Davidson County
                        No. 87-S-777   J. Randall Wyatt, Jr., Judge



                     No. M2003-01762-CCA-R3-CD - Filed May 20, 2004


The petitioner was convicted of first degree murder and aggravated assault on July 29, 1987. On
January 22, 2003, the petitioner filed a pro se petition for writ of error coram nobis. On May 14,
2003, the State filed a motion to dismiss the petition without a hearing, and this motion was granted
on May 15, 2003. We conclude that the trial court did not err in finding that the petition is time
barred, and the petitioner has not advanced any grounds for which the statute of limitations should
be tolled.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and
THOMAS T. WOODALL, JJ., joined.

Eric C. Pendleton, Nashville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General;
Victor S. (Torry) Johnson, III, District Attorney General; and Kathy Morante, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                            OPINION

        The petitioner, Eric Pendleton, was convicted of first degree murder and aggravated assault
on July 29, 1987. State v. Eric C. Pendleton, No. 87-189-III, 1988 Tenn. Crim. App. LEXIS 586
(Tenn. Crim. App., Sept. 28, 1988). He was sentenced to life imprisonment for the murder
conviction and six years for the aggravated assault conviction. On January 22, 2003, the petitioner
filed a pro se petition for writ of error coram nobis. He then filed a motion to place the writ in
abeyance. On April 22, 2003, he filed a motion to move the petition out of abeyance. On May 14,
2003, the State filed a motion to dismiss the petition without a hearing, and this motion was granted
on May 15, 2003. The defendant filed a motion to rescind and set aside the order of dismissal on
May 27, 2003. The trial court denied this motion on June 18, 2003. The petitioner filed his notice
of appeal on July 10, 2003. He contends on appeal that due process requires tolling of the statute
of limitations in this case. We affirm the judgment of the trial court.

                                                 Analysis

        The petitioner contends on appeal that the trial court erred in dismissing his petition for writ
of error coram nobis. Trial courts may grant a criminal defendant a new trial following a judgment
of conviction under limited circumstances through the extraordinary remedy offered by a writ of
error coram nobis. Tenn. Code Ann. § 40-26-105; State v. Mixon, 983 S.W.2d 661, 666 (Tenn.
1999). A writ of error coram nobis may be granted where the defendant establishes the existence
of newly discovered evidence relating to matters litigated at trial if the defendant shows he was
without fault in failing to present the evidence at the proper time, and if the judge determines the
evidence may have resulted in a different judgment had it been presented to the jury. Tenn. Code
Ann. § 40-26-105; Mixon, 983 S.W.2d at 668. The decision to grant or deny a petition for writ of
error coram nobis based on newly discovered evidence lies within the sound discretion of the trial
court. Tenn. Code Ann § 40-26-105; State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App. 1995).
Therefore, we will not overturn the decision of the trial court absent a showing of abuse of
discretion.

        A petition for writ of error coram nobis is barred by the statute of limitations if it is not tolled.
The appropriate period for filing is one year after the judgment becomes final in the trial court or,
if a post-trial motion is filed, one year from entry of an order disposing of the post-trial motion.
Tenn. Code Ann. § 27-7-103; Mixon, 983 S.W.2d at 670. It is obvious that the petition for writ of
error coram nobis in this case was filed outside of the applicable statute of limitations. It was filed
approximately fifteen years after the judgment became final in the trial court. However, the
petitioner argues that the statute of limitations should be tolled under the authority of Workman v.
State, 41 S.W.3d 100 (Tenn. 2001) and State v. Ratliff, 71 S.W.3d 291 (Tenn. Crim. App. 2001).
In Workman, our supreme court held that the constitutional rights of due process may require tolling
of the statute of limitations in a proceeding where a petition for writ of error coram nobis has been
filed. 41 S.W.3d at 103. Workman involved a capital case wherein the petitioner argued that late-
discovered evidence, including a previously unavailable x-ray and the recanted testimony of a crucial
witness, would show that he was actually innocent of the crime for which he was convicted. The
court concluded that the defendant’s private interest to have a hearing on the grounds of newly
discovered evidence which may have established his actual innocence outweighed the State’s interest
in preventing stale and groundless claims. Id. In Ratliff, this court applied the holding in Workman
to a conviction in a non-capital case. 71 S.W.3d at 298. The defendant in Ratliff was convicted of
rape of a child and sentenced to serve twenty-four years in the Department of Correction. The
judgment became final on December 7, 1998. The defendant filed a petition for writ of error coram
nobis on December 21, 1999, fourteen days outside the applicable statute of limitations. The new
evidence was alleged to be a total recantation of the testimony by the victim. This court noted that
the great weight of evidence against the defendant came from the testimony of the victim at trial.
In November 1999, the victim and her mother had contacted the prosecutor’s office to discuss the
fact that the victim had given false testimony at the defendant’s trial. This court held that, under the


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circumstances, due process precluded a summary dismissal of the petition for writ of error coram
nobis based upon the expiration of the statute of limitations. Id.

        The petitioner contends that the State violated Brady by failing to disclose exculpatory
evidence. This purported “newly discovered evidence” was discovered by the petitioner in 1997 and
1998. Tennessee Code Annotated section 40-26-105 limits relief “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.” The Brady violations alleged by the petitioner are not “newly discovered evidence”
within the parameters for relief provided by the writ of error coram nobis. We conclude that the trial
court did not err in finding that the petition is time barred, and the petitioner has not advanced any
grounds for which the statute of limitations should be tolled. Accordingly, the petitioner is not
entitled to relief on this issue.

        Additionally, the petitioner contends that the trial court erred in failing to allow him time to
respond to the State’s motion to dismiss his petition. The trial court properly dismissed the petition
as being time barred. Therefore, the petitioner was not entitled to have an opportunity to respond
to the State’s motion to dismiss. See Anthony Freeman v. State, No. W2002-01548-CCA-R3-CO,
2003 Tenn. Crim. App. LEXIS 249 (Tenn. Crim. App., at Jackson, Mar. 19, 2003); Raymond Blue
v. State, No. W2001-01872-CCA-R3-PC, 2002 Tenn. Crim. App. LEXIS 285 (Tenn. Crim. App.,
at Jackson, Mar. 27, 2002).

                                             Conclusion

        Based on the foregoing and the record as a whole, we conclude that the trial court did not err
in finding that the petition is time barred, and the petitioner has not advanced any grounds for which
the statute of limitations should be tolled. We affirm the judgment of the trial court.




                                                        ___________________________________
                                                        JOHN EVERETT WILLIAMS, JUDGE




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