        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 29, 2012

        EDWARD JEROME HARBISON v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Hamilton County
                 No. 280296    Jon Kerry Blackwood, Senior Judge


                  No. E2011-01711-CCA-R3-PC - Filed May 31, 2012


Petitioner, Edward Jerome Harbison, appeals the Hamilton County Criminal Court’s
summary dismissal of his petition for writ of error coram nobis seeking relief from his 1983
convictions for first degree murder, second degree burglary, and grand larceny. Petitioner
claims that an order of a previous coram nobis court establishes a new predicate for review.
Petitioner also claims that a statement of a prosecutor during a previous hearing constitutes
“new evidence.” Following our review, we affirm the judgment of the error coram nobis
court.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which T HOMAS T. W OODALL, J.,
joined. Jerry L. Smith, J., not participating.

Edward Jerome Harbison, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and James E. Gaylord, Assistant
Attorney General, for the appellee, State of Tennessee.




                                        OPINION

                              I. Facts and Procedural History

       This case involves an extensive procedural history. We begin with the succinct
summary of the chronology of the case and the facts underlying the conviction from this
court’s opinion affirming the previous error coram nobis court’s denial of relief:
        In 1983, a Hamilton County Criminal Court jury convicted the
petitioner, Edward Jerome Harbison, of first degree murder and sentenced him
to death. The supreme court affirmed the conviction on direct appeal. See
State v. Harbison, 704 S.W.2d 314 (Tenn. 1986). Subsequently, the petitioner
filed a post-conviction petition. The trial court denied post-conviction relief,
and this court affirmed. See Edward Jerome Harbison v. State, No.
03C01-9204-CR-00125, 1996 Tenn. Crim. App. LEXIS 307, 1996 WL 266114
(Knoxville, May 20, 1996). Upon alleged discovery of new evidence, the
petitioner moved to reopen his post-conviction petition. The trial court
converted the motion to a petition for writ of error coram nobis and denied
relief.

       ....

         On the night of January 15, 1983, Frank Russell came home to find his
wife dead in their home. The house was in disarray and had been burglarized,
and there were signs of a struggle. After an investigation, the police went to
the home of Janice Duckett, who was the petitioner’s girlfriend and David
Schreane’s sister. There, the police recovered items taken from the Russells’
home. The police questioned David Schreane, who led the police to a marble
vase. Testing on the vase revealed the presence of blood. The police also found
fragments consistent with the vase in the petitioner’s car and questioned the
petitioner, who confessed to killing the victim. According to the confession,
the petitioner and Schreane went to the Russell home, found no one home, and
began putting items from the home into Schreane’s car. The victim returned
home, discovered the two men inside, and struggled with the petitioner. The
petitioner hit the victim several times with the marble vase, breaking all of the
bones in the victim’s head. At trial, the petitioner testified that he did not kill
the victim and was at Janice Duckett’s apartment on the night of the crime. He
stated that he confessed to killing the victim because the police threatened to
arrest Janice Duckett and take away her children. Janice Duckett also testified
at trial that the petitioner was at her home on the night of the murder. The jury
convicted the petitioner.

       The supreme court affirmed the petitioner’s conviction in 1986, and this
court affirmed the denial of post-conviction relief in May 1996. In February
1997, counsel was appointed to represent the petitioner in a petition for habeas
corpus relief in federal district court. In October 1997, the Chattanooga Police
Department sent counsel two hundred six previously undisclosed documents
about its investigation of the case. In March 2001, the district court denied the

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petition for habeas corpus relief. In June 2001, the petitioner’s attorneys filed
a motion to reopen his post-conviction petition in the Hamilton County
Criminal Court, claiming the petitioner was entitled to relief in light of
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
(2000). In December 2001, the petitioner’s attorneys filed an amended petition,
arguing that the petitioner was entitled to relief under Apprendi and that the
petitioner received the ineffective assistance of counsel during the direct
appeal of his convictions because the attorney representing him on direct
appeal also represented Ray Harrison, who the petition claimed had been a
prime suspect in the victim’s murder. The amended petition also raised for the
first time a claim that the state withheld the Chattanooga Police Department
records in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963). According to the amended petition, some of the police
department records were exculpatory because they indicated David Schreane
and Ray Harrison, not the petitioner, broke into the Russells’ home and killed
the victim. On February 13, 2003, the state filed a response to the allegations
in the petition, arguing that the petitioner's Brady claim was time-barred. On
April 22, 2003, the petitioner filed a motion requesting that the trial court treat
his motions to reopen as a writ of error coram nobis.

        On October 13, 2003, the trial court held a coram nobis hearing.
According to the trial court’s order denying error coram nobis relief, the
purpose of the hearing was “to allow the parties to present evidence related to
the timeliness of the asserted Brady claims and related matters.” Judge William
B. Mitchell Carter testified that he was one of two attorneys who represented
the petitioner at trial and that his co-counsel for the case was deceased. He
filed many motions in the case, including motions for discovery and
exculpatory evidence, which were granted by the trial court. Judge Carter
stated that the petitioner insisted on using an alibi defense. However, the use
of an alibi defense was “complicated” by the fact that the petitioner had
confessed to killing the victim. At trial, the petitioner denied killing the victim
and stated that his confession was coerced because the police had threatened
to arrest his girlfriend and put her children in foster care. Judge Carter was
aware of allegations that the victim had been involved in selling stolen
property before her death, but he did not pursue the allegations during his
investigation of the petitioner’s case.

      The petitioner introduced into evidence two hundred six documents
provided by the Chattanooga Police Department and had Judge Carter read
some of the police reports into evidence. According to the reports, a man

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named David Boss gave a statement to police about the victim’s murder. In the
statement, Mr. Boss related that the victim had sold stolen property to Charlene
Harrison, Ray Harrison’s wife, and that Ray Harrison had tried to sell the
victim a ring one week before the victim was killed. Mr. Boss also told police
that Charlene Harrison told Mr. Boss that Ray Harrison was in the Russell
house at the time of the murder. However, Mrs. Harrison told David Boss that
Ray Harrison did not kill the victim. Judge Carter testified that he was aware
Ray Harrison was a suspect in the case but he was unable to recall specific
information about Harrison. He acknowledged that the police department
records indicated that a week before the victim's death, Ray Harrison was mad
at the victim over a “ring deal” that had “gone bad.” Judge Carter testified that
he could not remember if he had had the Chattanooga Police Department
records while he was representing the petitioner, that having the records might
have affected his investigation of the case, and that the police department
documents might have been helpful to the defense.

        William Gerald Tidwell, Sr., testified that he was appointed to represent
the petitioner in the post-conviction proceeding. He said that before the
post-conviction evidentiary hearing, he tried to obtain the Chattanooga Police
Department’s records regarding the petitioner’s case but received none. He
said that he only recently had become aware of the police department’s records
for the case and recently had learned that the victim may have been involved
in selling stolen property. He also stated that he had not known while
representing the petitioner that Charlene Harrison placed Ray Harrison at the
scene of the crime. He said that if he had had this information, he would have
brought it up during the petitioner’s post-conviction evidentiary hearing. He
said that he also had been unaware that the petitioner’s codefendant, David
Schreane, had threatened to accuse the petitioner of killing the victim if the
petitioner did not stop contacting Schreane’s girlfriend. Finally, Mr. Tidwell
stated that the police department records showed Ray Harrison had at one time
agreed to take a polygraph examination regarding the victim’s death if
Harrison’s attorney, Rodney Strong, could be present. However, Harrison later
refused to take the polygraph test. He said that Rodney Strong represented the
petitioner on direct appeal. Mr. Tidwell acknowledged that if he had known
Mr. Strong had represented Ray Harrison and if he had known about the
significant role Ray Harrison played in the case, he would have raised a
conflict of interest issue in the post-conviction proceeding.

       On cross-examination, Mr. Tidwell testified that he never received an
indication that the Chattanooga police were trying to conceal evidence in the

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petitioner’s case. He did not recall ever seeing the documents introduced at the
coram nobis hearing. During his representation of the petitioner, he had no
indication that Rodney Strong was biased against the petitioner.

        Rodney Strong testified that he handled the petitioner’s motion for new
trial and represented the petitioner on direct appeal. He stated that when he
was appointed to the petitioner’s case, he met with the petitioner and reviewed
the trial transcript. Mr. Strong testified that he had no recollection of
representing Ray Harrison. However, he acknowledged that a Chattanooga
Police Department record indicated he had represented Harrison. He said that
during the petitioner’s direct appeal, he had been unaware that Ray Harrison
was connected to the petitioner’s case and had not known that Charlene
Harrison had placed Ray Harrison at the scene of the crime. He said that if he
had been aware that he represented Ray Harrison and that Harrison was
connected to the petitioner’s case, he would not have accepted the appointment
to represent the petitioner. He said that if he represented Ray Harrison, it had
not affected his representation of the petitioner. He related that he did not raise
a Brady issue in the petitioner’s new trial motion because he had been unaware
of the police department records. On cross-examination, Mr. Strong stated that
he did not remember “dealing with Harrison” and that he had never known the
Chattanooga Police Department to hide police records.

        Rosemarie Bryan testified that she was appointed to represent the
petitioner in February 1997 and was currently representing him. She testified
that in September 1997, she sent a letter to the Chattanooga Police
Department, requesting records in the petitioner’s case. In October 1997, the
police department sent her its file. According to Ms. Bryan, the file contained
“things that were fairly astoundingly amazing to us.” In November 1997, Ms.
Bryan filed the petitioner’s petition for habeas corpus relief in federal district
court. On cross-examination, Ms. Bryan testified that she did not file a petition
for writ of error coram nobis in state court right away because the petitioner’s
federal habeas corpus case was still pending. She was unable to recall any
specific discussions regarding whether to proceed in state court after the
receipt of the documents. She stated that she raised a Brady issue in the habeas
corpus petition and that the federal district court granted summary judgment
for the State in March 2001.

       Dana Hansen, Ms. Bryan’s co-counsel in the instant case, testified that
she began working on the petitioner’s federal habeas corpus case in 1998. She
said that at the time she and Ms. Bryan received the police department

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       documents, they could not file another post-conviction petition in state court
       because state law allowed only one post-conviction petition and the petitioner
       had filed a post-conviction petition in 1989. She stated that when the
       Tennessee Supreme Court filed Workman v. State, 41 S.W.3d 100 (Tenn.
       2001), it gave the petitioner an opportunity to seek relief through a petition for
       writ of error coram nobis.

               The trial court denied the petition for writ of error coram nobis. The
       court disagreed with the petitioner’s assertion that he did not have an avenue
       of relief until the Workman decision. The trial court stated that “[t]he statute
       permitting petitions for writs of error coram nobis is not by any means new and
       litigants have continually argued the application of the due process clause to
       various statutes of limitations.”

                     The court noted that the petitioner became aware of the
              alleged exculpatory evidence in October 1997 but waited
              approximately fifty months “before seeking any review in state
              court.” The trial court found that “the time within which the
              petition was filed exceeds the reasonable opportunity afforded
              by due process” and dismissed the petition on the basis that it
              was time-barred.

Edward Jerome Harbison v. State, No. E2004-00885-CCA-R28-PD, 2005 WL 1521910, at
*1-4 (Tenn. Crim. App. June 27, 2005), perm app. denied (Tenn. Dec. 19, 2005) (footnotes
omitted).

        In 2007, petitioner filed a second motion to reopen his post-conviction petition or,
alternatively, a petition for writ of error coram nobis. As grounds, petitioner alleged that he
obtained certified copies of the Chattanooga City Court docket for the day of his arrest that
showed he had been subject to a warrantless arrest. According to petitioner, it followed that
as a result of the alleged warrantless arrest, he was unconstitutionally seized. Petitioner
argued that the error was further compounded by the State’s prosecutorial misconduct in
failing to disclose the absence of a warrant.

        The court held a hearing and subsequently denied relief on May 24, 2010. In doing
so, the court reasoned that petitioner’s pleadings did not satisfy the statutory requirements
for a motion to reopen a petition for post-conviction relief. The court further found that the
issue of probable cause to arrest petitioner had been previously addressed by the courts and
was not properly reviewable by writ of error coram nobis.



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      After initiating an appeal from the previous error coram nobis court’s order, petitioner
dismissed his appeal to this court to pursue his request for executive clemency from the
Governor. On January 22, 2011, the Governor commuted petitioner’s death sentence to life
imprisonment without the possibility of parole.

        Petitioner then filed the instant petition for writ of error coram nobis on May 23, 2011.
He claims to have found new evidence to support his previously litigated argument that the
lack of an arrest warrant, as established by the Chattanooga City Court docket, proved that
he was subjected to a warrantless arrest and was therefore unconstitutionally seized. That
new evidence allegedly consists of statements set forth in the previous coram nobis court’s
May 24, 2010 order denying relief. Petitioner further claims that the State created new
grounds by virtue of a statement made in its argument to the prior coram nobis court. The
instant coram nobis court summarily dismissed the petition that is the subject of this appeal.

                                         II. Analysis

         The decision to grant or to deny a petition for writ of error coram nobis on its merits
is left to 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 trial court abuses
its discretion when it applies incorrect legal standards, reaches an illogical conclusion, bases
its decision on a clearly erroneous assessment of the evidence, or employs reasoning that
causes an injustice to the complaining party. State v. Ruiz, 204 S.W.3d 772, 778 (Tenn.
2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn. 2006)). The writ of error coram
nobis is an “extraordinary procedural remedy . . . into which few cases fall.” State v. Mixon,
983 S.W.2d 661, 672 (Tenn. 1999). To obtain coram nobis relief, petitioner must show that
the newly discovered evidence could not have been obtained before trial by either the
petitioner or his counsel exercising reasonable diligence. Vasques, 221 S.W.3d at 527-28.
Our legislature has limited the relief available through the writ:

               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 new trial, on appeal in the 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.

Tenn. Code Ann. § 40-26-105(b) (Supp. 2011).

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        We note that petitioner’s claim arguably falls outside of the one year statute of
limitation. Tenn. Code. Ann. § 27-7-103 (2010). However, the State did not raise this issue
in its brief. The State has the burden of raising untimeliness as an affirmative defense.
Harris v. State, 102 S.W.3d 587, 593 (Tenn. 2007). Therefore, we will consider petitioner’s
arguments.

       In support of this petition for writ of error coram nobis, petitioner maintains that a
“new predicate” exists to support issuance of the writ. The “new evidence” to which
petitioner refers is the order of the previous coram nobis court dated May 24, 2010. An order
issued by a trial court is not evidence. Charles Gross v. Michael K. McKenna, No. E2005-
02488-COA-R3-CV, 2007 WL 3171155, at *3 (Tenn. Ct. App. Oct. 30, 2007) (citing State
v. Draper, 800 S.W.2d 489, 493 (Tenn. Crim. App. 1990) (holding that “factual assertions
in orders regarding the underlying dispute are not ‘evidence’”), perm. app. denied (Tenn.
May 5, 2008)), distinguished on other grounds by State v. Alvarado, 961 S.W.2d 136 (Tenn.
Crim. App. 1996); cf. Cyrus Deville Wilson v. State, No. M2009-02241-SC-R11-CO (Tenn.
2012) (district attorney general’s hand-written note in file constitutes work product and is,
therefore, both non-discoverable and inadmissible).

       Petitioner also contends that the statements of a prosecutor during a previous hearing
constitute “new evidence.” This court has previously considered and rejected that argument.
Draper, 800 S.W.2d at 493. Petitioner cannot employ a novel strategy to overcome a
procedural bar and justify our review of a previously decided issue. Petitioner simply has not
raised claims of “new evidence” that required the coram nobis court to conduct an
evidentiary hearing. See Harris v. State, 301 S.W.3d 141, 153-54 (Tenn. 2010) (Koch, J.,
concurring). The coram nobis court did not abuse its discretion in summarily dismissing the
petition without an evidentiary hearing. See Howard J. Atkins v. State, No. W2010-00092-
CCA-R3-C, 2010 WL 4274737, at *2 (Tenn. Crim. App. Oct. 26, 2010), perm. app. denied
(Tenn. Feb. 16, 2011) (applying “abuse of discretion” standard in reviewing coram nobis
court’s summary dismissal of a petition for relief).

         Petitioner has obtained a thorough review of his issues over almost thirty years. In
state court, his claims have been subjected to direct review, one petition for post-conviction
relief, and three petitions for error coram nobis relief. He has also been denied habeas corpus
relief in federal court. Moreover, his death sentence was commuted to life imprisonment
without the possibility of parole by the Governor. All of petitioner’s claims not addressed
in this opinion have been previously litigated and are outside of the parameters of the writ
of error coram nobis. Tenn. Code. Ann. § 40-26-105(b) (Supp. 2011).




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                                      IV. Conclusion

       After a thorough review of the record, we affirm the summary dismissal of the petition
for writ of error coram nobis.


                                                   _________________________________
                                                   ROGER A. PAGE, JUDGE




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