         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs December 2, 2003

              CHAUNCEY R. GORDON v. STATE OF TENNESSEE

                     Direct Appeal from the Circuit Court for Giles County
                          No. 10337    Robert L. Holloway, Jr., Judge



                   No. M2002-02619-CCA-R3-CD - Filed December 31, 2003


The petitioner, who pled guilty to one count of first degree murder and one count of second degree
murder, appeals the denial of his petition for writ of error coram nobis, arguing that the trial court
should have granted him relief based on newly discovered evidence which allegedly showed that his
trial counsel had a conflict of interest at the time he entered his pleas of guilty. Following our
review, we affirm the order of the trial court denying the petition.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JAMES CURWOOD WITT, JR. and
ROBERT W. WEDEMEYER , JJ., joined.

Chauncey R. Gordon, Wartburg, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Kathy D. Aslinger, Assistant Attorney General;
T. Michel Bottoms, District Attorney General; and Patrick S. Butler, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                               OPINION

                                                FACTS

        In October 1989, the petitioner, Chauncey R. Gordon, shot and killed his girlfriend and her
mother in Giles County. See Chauncey R. Gordon v. State, No. 01C01-9710-CC-00483, 1998 WL
881864, at *1 (Tenn. Crim. App. Dec. 18, 1998), perm. to appeal denied (Tenn. May 10, 1999). As
a result, the Giles County Grand Jury indicted the petitioner on two counts of first degree murder.
Id. After extensive negotiations between the petitioner’s trial counsel and the district attorney, the
petitioner pled guilty on January 2, 1991, to one count of first degree murder and one count of
second degree murder in exchange for an agreed sentence of life plus twenty-five years. Id. The
petitioner thereafter filed a petition for post-conviction relief, alleging that his guilty pleas were not
voluntarily, knowingly, and understandingly made. Id. Following an evidentiary hearing, the post-
conviction court denied the petition, finding that the petitioner’s guilty pleas were knowingly and
voluntarily entered. Id. at *3. This court affirmed the post-conviction court’s denial of the petition
on December 18, 1998, and our supreme court denied the petitioner’s application for permission to
appeal on May 10, 1999. Id. at *1.

         On January 22, 2002, the petitioner filed a pro se petition for writ of error coram nobis,
alleging that he had recently discovered a letter sent from his trial counsel to the district attorney
general prior to the entry of his guilty pleas, which revealed that trial counsel knew the victims’
family and therefore had a conflict of interest. The petitioner asserted that, had he known about trial
counsel’s relationship with the victims and their family, he would not have pled guilty. The text of
trial counsel’s undated, handwritten letter to the district attorney general, which the petitioner
attached to his petition, is as follows:

                       Attached please find a copy of the Order requiring the
               appropriate member of the Coleman party to execute medical
               releases. Many times doctors only take originals. Therefore there are
               several.

                      The first set is accepted by local doctors. Please have the
               appropriate member of the Coleman family sign each by the check
               mark as executor or executrix & have someone else witness the
               signature and date same.

                       The second set needs to be signed by the appropriate party
               also in their capacity as executor/executrix of Jacqueline’s estate.
               These two need to be signed as such by each check mark & dated at
               the bottom. The signature should be witnessed by a notary (if one is
               not available, please call my office & we will provide one).

                      Please let me know when I might pick these up as soon as
               possible.

                        Also, since the “finality” of this case has seemed to be a
               concern with certain family members I have spoken too [sic] I would
               like the opportunity to explain to the Coleman’s the 3 tiered appellate
               process should the death penalty result in either case. (i.e. direct
               appeal, post conviction relief in state court, & federal habeas
               corpus/post conviction appeals all of which combined could take as
               long as ten (10) years).

                      For purposes of settlement &/or trial, the defendant will also
               be able to announce at the time of entering the plea the factual



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                circumstances surrounding this tragedy (which has also been a
                question which the Coleman family has wanted answered).

                        I have known most of the Coleman’s for years & would
                appreciate the opportunity to talk with them today if possible. Please
                let me know how I might help if necessary.

        The State answered the petition by asserting, inter alia, that the writ was barred by the one-
year statute of limitations, the letter did not constitute substantive evidence that would have had any
bearing on the State’s evidence against the petitioner, trial counsel did not have a conflict of interest,
and “knowledge of this letter would have in no way affected the rendition of the judgment had the
Court known of it.”

         The trial court appointed counsel and held a hearing on the petition on September 23, 2002.
The petitioner testified he had first seen the letter approximately three months previously, after the
district attorney’s office had responded to his request for a copy of his file. An inmate legal clerk
at the prison, who was assisting him with his case, had directed his attention to the letter. The
petitioner said he had not known that trial counsel was acquainted with the victims’ family, and that
trial counsel had never informed him of his relationship with them. On cross-examination, the
petitioner acknowledged that, as a result of his guilty pleas, the State did not seek the death penalty
for the two murders. He further acknowledged that trial counsel’s expressed motivation for talking
with the victims’ family was to attempt to get them to consent to the plea bargain, and conceded that
trial counsel was trying to save his life.

        Trial counsel testified that his ultimate purpose in writing the letter was to convince the State
not to seek the death penalty and to agree to a plea bargain. He explained:

                        I wrote the letter because the first priority I had as [the
                petitioner’s] lawyer was to do whatever I could to try to convince the
                State that this was not a case where I felt like they needed to be
                seeking the death penalty.

                       And by obtaining medical information about the victims and
                meeting with the victims’ families - - or family- - to make sure they
                understood the judicial process, and the time involved, and things
                along those lines.

                        I felt that their knowledge of those issues, in conjunction with
                the facts, that I would be getting into some medical history with
                regard to their family, might cause the D.A.’s office to reevaluate the
                penalty they saw [sic], and/or offer a plea agreement that [the
                petitioner] might considering [sic] taking.



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Trial counsel agreed he had been successful in his efforts to get the State to agree to a plea bargain
whereby the defendant could escape facing the death penalty.

        Trial counsel testified he knew both victims by sight, having seen them around town, but did
not know them personally. He said there was a “brother or somebody in the family,” “a good athlete
at Giles County High School,” with whom he at one point in time had “a little bit of rapport,” but
he never had any close personal friendships or ties with anyone in the victims’ family which would
have prevented him from zealously representing the petitioner. Although trial counsel could not
recall, he said it was possible he had sent the letter to the district attorney without informing the
petitioner. However, he said he felt that the letter needed to be sent because the petitioner was
charged with capital crimes and the State was seeking the death penalty.

        At the conclusion of the hearing, the trial court concluded that the letter offered by the
petitioner failed to show that there had been a conflict of interest on the part of trial counsel.
Specifically, the trial court found the following:

                       Now, all the letter says to me is let me try to talk the victims’
               family into allowing the State to offer something other than the death
               penalty. This is a small town; a fairly rural area. You know a lot of
               people. [Trial counsel] has explained how he knew of them.

                       None of it sounds like a close relationship. Just a passing
               relationship. One of the brothers, who was an athlete, perhaps he
               knew well enough to have a conversation with.

               ....

                       But it’s clear to this Court, having been involved in death
               penalty cases as a defense counsel and as a judge, what’s going on
               here. It may not be to [the petitioner] or to the [inmate legal clerk]
               who read the letter, but it’s clear to the Court that [trial counsel] is
               simply trying to work out a plea agreement with the State of
               Tennessee for something where [the petitioner’s] life will not be put
               at jeopardy.

         Consequently, on September 23, 2002, the trial court entered a written order denying the
petition for writ of error coram nobis. Because the trial court ruled on the merits of the petition, it
did not consider whether the writ was barred by the one-year statute of limitations.

                                            ANALYSIS

       The petitioner contends due process bars the application of the one-year statute of limitations,
and that the trial court erred in denying his writ of error coram nobis on the basis of his newly


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discovered evidence. Specifically, the petitioner asserts that the letter from his trial counsel, which
stated that counsel had known most of the Colemans for years and had already talked to some of
them, contradicts counsel’s claim that he did not have a personal relationship with the victims’
family. The petitioner argues that counsel’s relationship with the victims’ family calls into question
whether counsel provided adequate representation of the petitioner and renders his guilty pleas
unknowing and involuntary. The State argues that the petition should have been dismissed by the
trial court because it was filed outside the statute of limitations. Notwithstanding the court’s failure
to dismiss on the basis of the statue of limitations, the State argues that the trial court properly
determined that the petitioner was not entitled to error coram nobis relief on his claim.

         A writ of error coram nobis is an extraordinary remedy by which the trial court may provide
relief from a judgment under narrow and limited circumstances. State v. Mixon, 983 S.W.2d 661,
666 (Tenn. 1999). The writ “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 (2003).
In the case of a conviction stemming from a guilty plea, “in order for a writ to issue, the [petitioner]
would have to present newly discovered evidence which would show that his plea was not
voluntarily or knowingly entered.” Newsome v. State, 995 S.W.2d 129, 134 (Tenn. Crim. App.
1998). The decision to grant or deny a petition for writ for error coram nobis on the grounds of
newly discovered evidence lies within the sound discretion of the trial court. Id. This court will not
disturb the decision of the trial court on a petition for writ of error coram nobis absent a showing of
an abuse of discretion.

        As an initial matter, we agree with the State that the petition for writ of error coram nobis
was barred by the statue of limitations. 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. See Tenn. Code Ann.
§§ 40-26-105, 27-7-103; Mixon, 983 S.W.2d at 671. The petitioner concedes his petition was filed
well outside the one-year statute of limitations, but he nonetheless argues that due process
considerations, as set forth in Workman v. State, 41 S.W.3d 100 (Tenn. 2001), and Sample v. State,
82 S.W.3d 267 (Tenn. 2002), require that the statute of limitations be tolled. We respectfully
disagree.

        In Workman, our supreme court held that due process required the tolling of the one-year
statute of limitations where a petitioner in a capital case sought a writ of error coram nobis based on
newly discovered exculpatory evidence, concluding that the petitioner’s “interest in obtaining a
hearing to present newly discovered evidence that may establish actual innocence of a capital offense
far outweighs any governmental interest in preventing the litigation of stale claims.” 41 S.W.3d at
103. Similarly, the court held in Sample that due process required that the statute of limitations for
bringing a post-conviction petition be tolled where the petitioner had recently discovered proof that
the State withheld exculpatory evidence at his trial. 82 S.W.3d at 275-76. As the State notes in its
brief, unlike the situations presented in Sample and Workman, the newly discovered evidence in the
case at bar has no bearing on the petitioner’s innocence of the offenses. We conclude, therefore, that
due process does not require the tolling of the statute of limitations and thus, that the petition for


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error coram nobis relief is time-barred. See, e.g., Gregory A. Hedges v. State, No. E2002-02610-
CCA-R3-PC, 2003 WL 22426831, at *2 (Tenn. Crim. App. Oct. 24, 2003) (concluding that statute
of limitations for writ of error coram nobis was not tolled in case where, in contrast to Workman and
State v. Ratliff, 71 S.W.3d 291 (Tenn. Crim. App. 2001), the petitioner never denied his participation
in offenses for which he was convicted).

        Although we conclude that the trial court should have denied the petition based on the statute
of limitations, we find no abuse of discretion on the part of the trial court in its denial of the petition
on its merits. In concluding that the letter did not show a conflict of interest on the part of trial
counsel, the trial court noted that Pulaski is a “fairly rural area” where residents are often familiar
with each other. The trial court found that trial counsel had only a “passing relationship” with the
victims and their family, and counsel’s letter merely represented his attempt to get the family
members to consent to a plea bargain, which would potentially save the life of the petitioner. It is
within the trial court’s province to determine the credibility of the witnesses who testify at the error
coram nobis hearing. See Newsome, 995 S.W.2d at 134-35. The trial court obviously found trial
counsel’s explanation of the letter and his description of his relationship with the victims’ family
credible. The trial court therefore concluded there were no grounds for granting error coram nobis
relief. Finding no abuse of discretion on the part of the trial court, we affirm the order of the trial
court denying the petition for writ of error coram nobis.

                                            CONCLUSION

        Based on the foregoing authorities and reasoning, we affirm the judgment of the trial court.



                                                         ___________________________________
                                                         ALAN E. GLENN, JUDGE




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