         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                     July 12, 2006 Session

             RICHARD HALE AUSTIN v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Shelby County
                        No. B58357-A    C. Creed McGinley, Judge



                  No. W2005-02591-CCA-R3-CO - Filed December 13, 2006


The petitioner, Richard Hale Austin, was sentenced to death by a Shelby County jury on March 5,
1999. In October 2004, the petitioner’s counsel filed a petition for writ of error coram nobis on the
basis of newly discovered evidence in the form of recanted testimony. Without holding an
evidentiary hearing, the coram nobis court dismissed the petition, and the petitioner now brings this
appeal challenging the action. Upon review, we affirm the judgment of the lower court.

              Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JERRY L. SMITH and
JOHN EVERETT WILLIAMS, JJ., joined.

Robert L. Hutton, Memphis, Tennessee, for the Appellant, Richard Hale Austin.

Robert E. Cooper, Jr., Attorney General & Reporter; Mark E. Davidson, Assistant Attorney General;
William L. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                            OPINION

                In 1977, a Shelby County jury convicted the petitioner of accessory before the fact
to the first degree murder of Julian Watkins. The following facts formed the basis for the
petitioner’s conviction:

               In early 1977, the [Memphis Police Department] suspected illegal gambling
               at [the petitioner’s] pool hall and employed [Julian] Watkins, a reserve
               deputy sheriff, to investigate. Based on Watkins’ testimony, the [S]tate
               obtained indictments and arrest warrants for [the petitioner], his wife, and
               several employees and associates, including Terry Casteel, the manager of the
               pool hall. Watkins was to be the chief witness against them.
                After their arrests, [the petitioner], [Jack Charles] Blankenship, and Casteel
                met. During their meeting, [the petitioner] and Blankenship spoke separately,
                [and the petitioner] then asked Casteel to drive Blankenship to Watkins’
                house. Casteel and Blankenship did not find Watkins there, but returned on
                the morning of May 23, 1977, when Blankenship killed Watkins. After the
                murder, Blankenship was seen with a large sum of money. The police
                arrested him on May 24, 1977. Blankenship pleaded guilty and was
                sentenced to life in prison.

                [The petitioner] and Casteel were indicted for murder. Their trials were
                severed after Casteel agreed to testify for the State that [the petitioner] hired
                him to kill Watkins.

Austin v. Bell, 126 F.3d 843, 845 n.1 (6th Cir. 1997).

                 The Tennessee Supreme Court affirmed the conviction and death sentence on direct
appeal. See State v. Austin, 618 S.W.2d 738 (Tenn. 1981), cert. denied, 454 U.S. 1128, 102 S. Ct.
980 (1981). This court denied the petitioner’s multiple requests for post conviction relief. See
Richard H. Austin v. State, No. 02C01-9310-CR-00238 (Tenn. Crim. App., Jackson, May 3, 1995)
(fourth petition for post conviction relief and first petition for writ of habeas corpus – consolidated),
perm. app. denied (Tenn. 1995); Richard Austin v. State, No. 02C01-9102-CR-00009 (Tenn. Crim.
App., Jackson, Aug. 14, 1991) (third petition for post conviction relief), perm. app. denied (Tenn.
1991); Richard Hale Austin v. State, No. 17 (Tenn. Crim. App., Jackson, Dec. 10, 1986) (second
petition for post conviction relief), perm. app. denied (Tenn. 1987); Richard Hale Austin v. State,
No. 33 (Tenn. Crim. App., Jackson, Apr. 17, 1985) (first petition for post conviction relief and first
petition for writ of error coram nobis – consolidated), perm. app. denied (Tenn. 1985). The
petitioner then filed a petition seeking a federal writ of habeas corpus and moved for summary
judgment. The federal district court partially granted relief on the issue of ineffective assistance of
counsel and jury instruction grounds. See Austin v. Bell, 938 F. Supp. 1308 (M.D. Tenn. 1996) (first
federal writ of habeas corpus and motion for summary judgment – consolidated); see also Austin v.
Bell, 927 F. Supp. 1058 (M.D. Tenn. 1996) (amended federal writ of habeas corpus) (denying relief
on subsequent issues raised by petitioner in an amended habeas corpus petition). The State appealed
the district court’s ruling that trial counsel was ineffective and that the reasonable doubt instruction
was unconstitutional. The Sixth Circuit Court of Appeals reversed the district court on all grounds
relating to the guilt phase of the petitioner’s trial, but it affirmed the finding that trial counsel was
ineffective at the sentencing phase. See Austin v. Bell, 126 F.3d 843 (6th Cir. 1997), cert. denied, 523
U.S. 1079, 118 S. Ct. 1526 and 523 U.S. 1088, 118 S. Ct. 1547 (1998). The court remanded the case
to the Shelby County Criminal Court for a new sentencing trial. On March 5, 1999, a Shelby County
jury sentenced the petitioner to death. The petitioner appealed, and this court affirmed the death
sentence on March 6, 2001. See State v. Richard Hale Austin, No. W1999-00281-CCA-R3-DD
(Tenn. Crim. App., Jackson, Mar. 6, 2001), aff’d, 87 S.W.3d 447 (Tenn. 2002), cert. denied, 538
U.S. 1001, 123 S. Ct. 1899 (2003).



                                                  -2-
                 In October 2004, the petitioner filed his Petition for Writ of Error Coram Nobis. The
petition alleged that on September 14, 2004, one of the petitioner’s attorneys, who represented him
at the re-sentencing trial, received a telephone call from Mr. Blankenship’s wife. Ms. Blankenship
informed counsel that her husband, who is incarcerated in East Tennessee, instructed her to tell
counsel that he lied during the petitioner’s re-sentencing hearing because his lawyer informed him
that if he implicated the petitioner in the Watkins’ murder, he could possibly receive early release
from prison. Counsel’s affidavit, attached to the coram nobis petition, stated that Mr. Blankenship
“had for 20 years consistently denied that [the petitioner] had hired him to commit the murder.” It
further stated that Mr. Blankenship, previous to the re-sentencing hearing testimony, “provided two
sworn statements[] and a federal deposition to that effect.”1 At the re-sentencing hearing, however,
Mr. Blankenship testified that the petitioner was involved in the Watkins’ murder.

                 After receiving the telephone call, the petitioner’s counsel sent Private Investigator
Glori Shettles to interview Mr. Blankenship at Northwest Correctional Complex. Mr. Blankenship
confirmed the information in his wife’s telephone call to the petitioner’s counsel. Ms. Shettles’
affidavit, attached to the coram nobis petition, stated that Mr. Blankenship informed her that he lied
at the petitioner’s re-sentencing hearing. His counsel allegedly informed him that he would receive
assistance from the State in his early release efforts if he testified falsely, implicating the petitioner
in the Watkins’ murder. Therefore, he changed his story of approximately 20 years. Mr.
Blankenship told Ms. Shettles that he is unaware of his counsel’s motives for advising him to
provide false testimony. He further informed her that he has received “no special consideration since
providing [the] testimony.”

                In its response to the petition, the State argued, in essence, that this testimony was not
newly discovered evidence and that the petitioner filed the petition outside the one-year statute of
limitations period.

                 The coram nobis court, without holding an evidentiary hearing, issued a written order
denying the petition on November 8, 2005. The court ruled that even taking the petitioner’s
allegations as true, he was not entitled to relief under section 40-26-105. See T.C.A. § 40-26-105
(2003). The court found that Mr. Blankenship’s re-sentencing hearing testimony was corroborated
by Terry Casteel’s testimony, that nothing indicated that Mr. Blankenship’s re-sentencing testimony
was false other than his recantation, and that “[t]here is absolutely nothing in the record to suggest
the present testimony of [Mr.] Blankenship is true as opposed to the [re-sentencing] testimony.” The
court also held, implicitly, if not expressly, that no different result would have been achieved had
Mr. Blankenship testified differently in the re-sentencing hearing. Thus, the court held that Mr.
Blankenship’s recanted testimony “does not constitute newly discovered evidence which would
entitle the petitioner to relief.”



         1
          Mr. Blankenship had not testified in the proceedings against the petitioner until he testified in the re-sentencing
hearing. Prior to the petitioner’s 1977 trial, the petitioner’s counsel obtained a statement from Mr. Blankenship wherein
Mr. Blankenship denied that the petitioner had hired him to kill the victim.

                                                            -3-
                The petitioner now appeals the lower court’s denial of his petition. Initially, he
asserted one basis for error, arguing that Tennessee Code Annotated section 40-26-105 mandates the
coram nobis court to conduct an evidentiary hearing. See T.C.A. § 40-26-105. The State responded
by asserting that the statute does not mandate a hearing and that the petitioner filed the petition
outside the one-year statute of limitations. In his reply brief, the petitioner points out that the coram
nobis court did not rule on the statute of limitations issue. The petitioner further asserts that if this
court decides this issue, despite the lower court’s failure to do so, then he is entitled to a hearing to
establish that his due process rights preclude the application of the statute of limitations.

                 A writ of error coram nobis is an extraordinary remedy by which a trial court may
provide relief from a judgment under narrow and limited circumstances. State v. Mixon, 983 S.W.2d
661, 668 (Tenn. 1999). The remedy is available by statute to a criminal defendant in Tennessee. See
T.C.A. § 40-26-105. This statute 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. The issue shall be tried by the court without the intervention of a
                jury, and if the decision be in favor of the petitioner, the judgment
                complained of shall be set aside and the defendant shall be granted a new trial
                in that cause.

Id.

                 Recanted testimony may qualify as newly discovered evidence. Mixon, 983 S.W.2d
at 672. A new trial should be granted on the basis of newly discovered recanted testimony, however,
only if: (1) the trial court is reasonably well satisfied that the testimony given by the material witness
was false and the new testimony is true; (2) the petitioner was reasonably diligent in discovering the
new evidence, or was surprised by the false testimony, or was unable to know of the falsity of the
testimony until after the trial; and (3) the jury might have reached a different conclusion had the truth
been told. Id. at 673 n.17. The court may grant a petition for writ of error coram nobis if it
determines that if the newly discovered evidence had been introduced at trial, “there is a ‘reasonable
probability’ that the result of the proceeding would have been different.” State v. Workman, 111
S.W.3d 10, 17-18 (Tenn. Crim. App. 2002). The decision to grant or deny the petition lies within
the sound discretion of the trial court. See T.C.A. § 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.

              We hold that the coram nobis court did not abuse its discretion when summarily
denying the petition without an evidentiary hearing because the first and third prong of the Mixon



                                                   -4-
factors for determining the viability of a coram nobis petition had not been met. See Mixon, 983
S.W.2d at 673 n.17.

                First, we review the Mixon requirement the trial judge must be reasonably assured that
the recanted testimony was false and that the new statement is true. We acknowledge that, once a
coram nobis petitioner alleges in his petition that the trial testimony was false and that the new
statement is true and buttresses his petition with the witness’ affidavit, a hearing may well be
necessary to determine the issue because, without a hearing, the petitioner would have no
opportunity to present the live testimony of the recanting witness so that the coram nobis court could
fathom his or her credibility. Not even an affidavit of the recanting witness attached to the petition
can convey the permutations of credibility, such as demeanor, that live testimony conveys. Thus,
when a petition makes such a claim of a witness’ recantation, which, if true, could result in coram
nobis relief, the petitioner may well be entitled to an opportunity to prove his allegations.

                 That said, we nevertheless discern no abuse of discretion in using Mixon’s first factor
as a basis for dismissing the petition. Initially, we note that the petitioner did not bolster his petition
with any sworn statement of Mr. Blankenship; he merely alleged via a sworn statement from third
parties that Mr. Blankenship, without the imprimatur of an oath, had disclaimed his sworn re-
sentencing hearing testimony. See Hart, 911 S.W.2d at 375 (stating that an affidavit “must be
relevant, material and germane to the grounds raised in the [coram nobis] petition; and the affiant
must have personal knowledge of the statements contained in the affidavit”). Moreover, as the
coram nobis court pointed out, the record is devoid of any claim of corroboration that Mr.
Blankenship’s recantation is truthful and that his re-sentencing hearing testimony was false. To the
contrary, co-defendant Terry Casteel’s re-sentencing hearing testimony, according to the coram nobis
court, corroborated “almost every detail” of Mr. Blankenship’s re-sentencing hearing testimony.
Finally, we agree with the coram nobis court’s view that because Mr. Blankenship recanted sworn
testimony not once but twice,2 his appearance at a coram nobis hearing could not alone establish the
truth of the most recent recantation.

                  Second, we hold that the lower court acted within its discretion in dismissing the
petition on the alternate ground that different testimony by Mr. Blankenship would not have affected
the imposition of the death sentence. The court opined that “[e]ven tak[ing] all allegations . . . as
true, . . . the petitioner is not entitled to relief . . . .” The court pointed to Mr. Casteel’s testimony
which corroborated Mr. Blankenship’s testimony. Also, the petitioner vigorously impeached Mr.
Blankenship, his own witness, via a sworn deposition rendered in a federal habeas corpus action, in
which deposition Mr. Blankenship had denied the petitioner’s involvement in the victim’s murder.
The re-sentencing jury fully heard about Mr. Blankenship’s prior sworn claim that the petitioner was
not involved. We believe the impeachment rendered Mr. Blankenship’s testimony ineffectual, that
the jury would have found Mr. Casteel’s testimony more appealing, and moreover that the result
would not have changed had Mr. Blankenship testified differently. See Pervis Tyrone Payne v. State,


        2
           Mr. Blankenship gave the first sworn testimony in a federal court deposition, which he recanted in the
petitioner’s re-sentencing hearing.

                                                      -5-
No. 02C01-9703-CR-00131, slip op. at 34 (Tenn. Crim. App., Jackson, Jan. 15, 1998) (holding that
petitioner suffered no prejudice by being denied a coram nobis hearing because “[t]here is no
question as to the confidence in the jury’s verdict”).

                 Furthermore, the coram nobis court correctly denied the petition without holding an
evidentiary hearing. Similar to habeas corpus hearings, coram nobis evidentiary hearings are not
mandated by statute in every case as the petitioner argues. Specifically, a “habeas corpus petition
may be dismissed without a hearing, and without the appointment of counsel for a hearing” if the
petition does not allege facts showing that the petitioner is entitled to relief. State ex rel. Edmondson
v. Henderson, 220 Tenn. 605, 609, 421 S.W.2d 635, 636 (Tenn. 1967) (citing State ex rel. Byrd v.
Bomar, 214 Tenn. 476, 381 S.W.2d 280 (Tenn. 1964)). Likewise, a coram nobis petition must state
a claim for coram nobis relief and satisfy the threshold statutory requirements before the court holds
an evidentiary hearing to determine whether the petitioner is entitled to coram nobis relief. In Harris
v. State, 102 S.W.3d 587 (Tenn. 2003), the Tennessee Supreme Court stated, “Unlike motions to
reopen, [coram nobis] claims are not easily resolved on the face of the petition and often require a
hearing.” Id. at 593 (emphasis added). This language reveals that some petitions may be dismissed
without a hearing. Moreover, remanding a case which failed facially to meet statutory requirements
for an evidentiary hearing would be an exercise in futility, and the interests of judicial economy and
efficiency are better served by disposing of the case prior to a hearing. See Pervis Tyrone Payne, slip
op. at 34; cf. Danny Ray Meeks v. State, No. M2005-00624-CCA-R3-HC, slip op. at 4 (Tenn. Crim.
App., Nashville, Dec. 1, 2005) (holding that petitioner is not entitled to a habeas corpus evidentiary
hearing when the petitioner failed to state a cognizable claim for habeas corpus relief).

              Last, because the petitioner’s coram nobis petition fails with respect to the newly
discovered evidence statutory requirement, we decline to reach the statute of limitations issue.

                Based on the foregoing analysis, the judgment of the lower court is affirmed.


                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




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