        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs February 5, 2013

                  LUE HOLCOMB v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                      No. 09-04878     W. Mark Ward, Judge


                No. W2012-01753-CCA-R3-CO - Filed April 11, 2013


The pro se petitioner, Lue Holcomb, appeals the dismissal of his petition for writ of error
coram nobis, arguing that his discovery of a written statement containing the victim’s
recantation of her allegations against him constitutes newly discovered evidence of his
innocence of aggravated assault. Following our review, we affirm the dismissal of the
petition.

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

A LAN E. G LENN, J., delivered the opinion of the Court, in which J OHN E VERETT W ILLIAMS
and C AMILLE R. M CM ULLEN, JJ., joined.

Lue Holcomb, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and David H. Findley, Senior Counsel,
for the appellee, State of Tennessee.

                                        OPINION

                                          FACTS

       On August 4, 2009, the petitioner was indicted by the Shelby County Grand Jury on
one count of aggravated assault against Petrina Green, the mother of his child, and one count
of violation of a protective order issued to Green. On October 9, 2009, he entered an Alford
guilty plea to the aggravated assault charge in exchange for a six-year sentence as a Range
I offender, suspended to supervised probation, and dismissal of the second count of the
indictment. On April 6, 2010, his probation was revoked.
        On May 17, 2010, the petitioner filed a petition for post-conviction relief in which he
alleged, among other things, that his guilty plea was involuntary and he received ineffective
assistance of counsel because the victim had signed a sworn recantation of her assault
allegations against him, which counsel never obtained for him. The post-conviction court
denied the petition, and this court affirmed the judgment of the post-conviction court. Lue
Holcomb v. State, No. W2010-02458-CCA-R3-PC, 2011 WL 5420814, at *1 (Tenn. Crim.
App. Nov. 9, 2011). Our opinion in that case provides some background information that
is pertinent to the present appeal:

              Lue Holcomb (“the Petitioner”) was indicted in August 2009 on one
       count of aggravated assault and one count of violation of protective order
       arising from a March 2009 altercation with Petrina Green, the mother of his
       son. Approximately one month later, Green testified at the Petitioner’s bond
       hearing that she wanted the charge dismissed because she had falsely accused
       the Petitioner of “putting his hands on” her when it was “just basically . . . a
       verbal dispute.”

               She explained that, on the day she had the Petitioner arrested, she was
       upset because the Petitioner’s mother had gained custody of their son. Green
       “had been drinking” and told the police “things . . . that weren’t exactly true.”
       She testified that the Petitioner had not struck her. On cross-examination,
       Green acknowledged that both her son and her nephew had witnessed the
       altercation between her and the Petitioner and that they both spoke to the
       police. The trial judge questioned Green during the bond hearing, learning that
       she had obtained an order of protection against the Petitioner and that he had
       earlier been convicted of two separate domestic assaults against her.

Id. (footnote omitted).

        The trial court explained that it did not have the authority to dismiss the charges at the
bond hearing, and the petitioner subsequently entered a best interest guilty plea to the
aggravated assault charge with a sentence of six years probation. Id. at *1-2. After the trial
court had accepted his plea, the petitioner claimed that the State had withheld a “sworn
statement” by the victim recanting her assault allegations. He insisted, however, that he did
not want to retract his plea. Our direct appeal opinion in the post-conviction case provides
the following summary of what transpired at the guilty plea hearing:

               After the trial court determined that the Petitioner had “made a
       knowing, intelligent and voluntary decision to plead guilty and to waive his
       rights to trial by jury” and had accepted the Petitioner’s plea, the Petitioner

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       stated, “I just want for the record I was entering this Alfred [sic] plea because
       it was the best interest for me to do it even though Brady material was
       withheld by the State on these cases.” The trial court inquired further, and the
       Petitioner claimed that the victim had given a “sworn statement” to the
       prosecutor. The trial court asked the Petitioner if he wanted to retract his plea,
       advising the Petitioner that the trial court would “order the State to give [the
       statement] to [him] and [he] can go to trial.” The Petitioner stated repeatedly
       that he did not want to go to trial and wanted to enter his guilty plea. The trial
       court accepted the plea and entered a judgment of conviction for aggravated
       assault with a sentence of six years, suspended to supervised probation.

Id. at *2 (footnote omitted).

        At the post-conviction evidentiary hearing, the petitioner testified that Green told him
she had, prior to the bond hearing, signed a sworn statement exonerating the petitioner of the
charges. Id. at *3. He acknowledged, however, that he had never seen a written statement
but was under the “‘impression’ that Green’s verbal recantation to the prosecutor had been
typed and signed by Green.” Id. Trial counsel testified that she reviewed the State’s file and
never saw any written statement by Green. Id. The post-conviction court found that the
petitioner’s guilty plea was knowing and voluntary and that he had the benefit of effective
trial counsel, and dismissed the petition for post-conviction relief. Id. at *4.

        On July 12, 2012, the petitioner filed an untimely petition for writ of error coram
nobis, alleging that on August 29, 2011, he had discovered that Green had faxed to his
attorney a notarized affidavit fully exonerating him of the assault charge. The petitioner
attached to his petition a copy of the notarized affidavit by Green, dated July 19, 2011. On
July 16, 2012, the trial court entered an order summarily dismissing the petition on the basis
that it was filed outside the one-year statute of limitations and did not allege any ground to
require tolling and that the evidence was not newly discovered and could have been raised
by the petitioner at an earlier date. Thereafter, the petitioner filed a timely notice of appeal
to this court.

                                         ANALYSIS

      A writ of error coram nobis is an extraordinary remedy by which the court may
provide relief from a judgment under only narrow and limited circumstances. State v.
Mixon, 983 S.W.2d 661, 666 (Tenn. 1999). Tennessee Code Annotated section 40-26-105
provides this remedy to criminal defendants:

       Upon a showing by the defendant that the defendant was without fault in

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       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) (2012).

        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. See Tenn. Code Ann.
§ 40-26-105; State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App. 1995). We review this
issue, therefore, under an abuse of discretion standard.

       We conclude that the trial court properly dismissed the petition both on the basis that
it was filed outside the one-year statute of limitations, see Tenn. Code Ann. §§ 40-26-105,
27-7-103, and that the evidence of the victim’s recantation was not “newly discovered” and
could have been raised by the petitioner at an earlier date. Accordingly, we affirm the
dismissal of the petition for writ of error coram nobis.

                                      CONCLUSION

       Based on the foregoing authorities and reasoning, we affirm the judgment of the trial
court dismissing the petition for writ of error coram nobis.




                                                   _________________________________
                                                   ALAN E. GLENN, JUDGE




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