                                                                                           11/14/2018
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                           Assigned on Briefs June 5, 2018

                TAMAINE WORKS v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                      No. 04-02521       Chris Craft, Judge
                     ___________________________________

                          No. W2017-02276-CCA-R3-ECN
                       ___________________________________


Petitioner, Tamaine Works, appeals summary dismissal of his petition for relief under the
Post-Conviction DNA Analysis Act, his motion under Rule 60.02 of the Tennessee Rules
of Civil Procedure, and his petition for writ of error coram nobis. Following our review,
we affirm the judgment of the post-conviction court.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Tamaine Works, Mountain City, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Amy P. Weirich, District Attorney General; and Karen Cook, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                        OPINION

Background

      The facts of this case as set forth by this court on direct appeal are as follows:

        The conviction in this case stems from the October 9, 2003 murder of
        Mr. Keon McChristian (the “victim”) in an apartment complex in
        Memphis. The Defendant, Tamaine Works, confronted the victim in a
        second floor hallway at the Peppertree Apartments about 10:30 at night
        and fired four shots from an assault-type weapon, hitting the victim
        twice. The victim died from his wounds. The Defendant fled the scene
but was arrested by police at the same apartment complex several
months later. In March of 2004, the Defendant was indicted by a Shelby
County grand jury on one count of first degree, premeditated murder.
The Defendant received a jury trial, which was conducted over the
course of several days in February and March, 2005.

Before the jury was seated, the trial court took up several preliminary
matters. The State presented a motion to exclude the Defendant from
introducing testimony concerning the victim’s alleged involvement in
the death of a friend of the Defendant a few hours prior to the murder at
issue in this case. The State argued that any evidence of this prior killing
was not relevant. The Defendant presented a motion to exclude the prior
testimony of a State witness who was unavailable to testify at trial,
alleging that the statement, although made under oath at a preliminary
hearing, was unreliable. The trial court granted the State’s motion and
excluded testimony concerning the prior homicide but denied the
Defendant’s motion and allowed the prior testimony of the unavailable
witness.

At trial, the State’s lead witness, Ms. Kimberly Pruitt, testified that on
the night of the murder, she was staying with her cousin at the
Peppertree Apartments. As she exited her cousin’s apartment with her
six-year-old son sometime after 10:00 in the evening on October 9,
2003, she passed the Defendant in the hallway on the second floor of the
apartment complex building. She recognized the Defendant as someone
she had seen around the complex for several years and who was a friend
of “Brian,” the man her cousin was dating at the time. As the Defendant
passed her in the hallway, Ms. Pruitt’s cousin, who was immediately
behind her, asked: “Tamaine, what you fixin’ to do?” Ms. Pruitt stated
the Defendant replied, “Shhh,” indicating the two women should remain
quiet.

Ms. Pruitt stated that at the time, the Defendant was not wearing a shirt,
had on black or dark-colored jeans, and was carrying a large gun only
partially concealed in a garbage bag. She further stated that the
Defendant was only three or four feet from her when they passed in the
hallway, and she saw his face. The Defendant walked toward the
apartment next door, the residence of a man known as “V.” Ms. Pruitt
walked the opposite direction toward the stairs, and her cousin went back
inside her apartment and closed the door. Ms. Pruitt testified that she
then saw the Defendant shoot the victim, which she described as follows:
the victim came out of “V’s” apartment; the Defendant shot the victim


                                   -2-
two times; the victim fell to the floor; the Defendant shot the victim two
more times; the Defendant then fled.

Ms. Pruitt testified that after the Defendant fled, she ran to the victim,
who said: “He shot me.” Ms. Pruitt stated that she called 911 from her
cellular phone and reported the incident.          She also stated that
approximately five or ten minutes after the shooting, “V” came and
asked her who shot the victim, but she declined to answer. She further
stated that when “V” heard the police arrive, he took off. Ms. Pruitt also
testified that the victim did not have a gun. When the police arrived, she
was forced to place her hands in the air, but when they learned she was
not a threat, she was allowed to leave and did not give a statement to the
police the night of the murder.

Ms. Pruitt also testified that she began to receive threats over her cellular
phone from the Defendant’s friend, who would call and tell her that she
did not “need to be testifying against his friend and that something’s
going to happen to [her] and [her] children if [she] do[es] come
forward.” Because of these threats, Ms. Pruitt did not make a statement
to the police until several weeks later when she was in the hospital.

On cross-examination, Ms. Pruitt admitted she had a felony record. She
stated that she did not tell “V” who shot the victim because she was
“paranoid.” She also stated that “V” did not take anything from the
victim, but that “V” was carrying a hand gun. Ms. Pruitt also clarified
that while she did not make a statement to the police the night of the
murder, she did leave an anonymous tip on the 528-CASH tip-line the
following day. However, she then began to receive threats over the
phone and therefore did not talk to the police until several weeks later
when she was in the hospital suffering from anxiety attacks and no
longer wanted to “hold it in.” The police came to her hospital room and
she gave them a statement. She also admitted that during this meeting
she was shown a photographic line-up but could not identify the
Defendant’s photo because she was on medication that caused blurred
vision. However, she did identify the Defendant’s photo at trial. She
also identified the Defendant in court as the man she witnessed shoot the
victim.

Ms. Memorie Noel, the victim’s aunt, also testified at trial, stating that
she lived in the same apartment complex and heard four gunshots on the
evening of the incident at approximately 10:30. Shortly thereafter, a
neighbor came to her door and informed her that her relative had been
shot. She rushed to the victim, who was lying on the ground, and noted

                                    -3-
that also at the scene was “a girl” and “V,” whom she identified as
Vincent Sulton, who also went by the moniker “Big V” and “V Dog.”

Sergeant Gene Hulley, an Investigator with the Memphis Police
Department Felony Response Squad, testified that he assisted the crime
scene investigators on this case. Although the victim had been removed
by the time he arrived, he stated that he observed at the crime scene
bullet holes on the building walls, spent shell casings, and a blood stain
on the floor. He described the shell casings as consistent with a “large
caliber, automatic weapon.”

Officer Ellason Flagg of the Memphis Police Department testified that
on January 24, 2004, she received a report that the Defendant was at the
Peppertree Apartments. There was a warrant for the Defendant’s arrest.
Officer Flagg stated that when the Defendant saw the uniformed officers,
he fled. The officers pursued, eventually captured the Defendant, and
placed him under arrest.

An audio tape of Memphis Police Officer Sergeant Sims’ testimony at
the Defendant’s March 4, 2004 preliminary hearing was played for the
jury at trial and entered into evidence. Sgt. Sims testified that he
attempted to take a statement from the Defendant after his arrest, but the
Defendant, after he was advised of his rights, elected to not make a
formal statement. However, the Defendant did remark to Sgt. Sims that
“wasn’t nobody going to make it to testify against him in the
courtroom.” Sergeant Sims also stated that the Defendant refused to sign
the advice of rights form.

Dr. Karen Chancellor, the Chief Medical Examiner for Shelby County,
was certified as an expert in the field of forensic pathology, and testified
that the victim suffered from a gunshot wound to the lower abdomen that
did “extensive damage,” and one gunshot wound to the leg. Dr.
Chancellor opined that the gunshot wound to the abdomen was the cause
of death because it severed two large blood vessels and caused massive
bleeding.

Mr. Anton Armour, an acquaintance of the Defendant, was subpoenaed
by the State and testified at trial, admittedly against his will, that at some
point after the murder he was with the Defendant. They were talking
about the past, and the Defendant made the following statement: “Man,
you know I’m a real [racial slur], I’m a killer, you can ask them [racial
slur] in the Peppertree about me.” On cross-examination, Mr. Armour
admitted he was a convicted felon.

                                    -4-
The Defendant, properly advised of his rights, elected not to testify on
his own behalf. The defense [ ] called Sergeant Timothy Cooper of the
Memphis Police Department, who testified that when he arrived at the
crime scene shortly after midnight, there was no one there who
witnessed the crime and was willing to talk to him. Officer William
Merritt of the Memphis Police Department testified that he interviewed
the Defendant along with Sgt. Sims, and stated that the Defendant did
sign the advice of rights form. Officer Merritt also stated that the
Defendant never made any incriminating or threatening statements while
in his presence, but admitted on cross-examination that there were times
when the Defendant was alone with Sgt. Sims.

The defense also called Mr. Vincent Sulton, a.k.a. “V.” Mr. Sulton
testified that in his initial statement to the police, made about four days
after the crime, he stated that he had no personal knowledge of the
events on the evening of the murder but knew the Defendant shot the
victim because the Defendant had communicated threats, warning him
not to talk. However, Mr. Sulton later made a second statement to police
in which he recounted that he and the victim were away from the
apartments the day of the murder when the victim informed Mr. Sulton
he was going to go to his apartment at Peppertree. Mr. Sulton informed
police that the victim arrived first, he followed, and he was just coming
up the stairs when he heard shots and saw the Defendant with a gun.
The Defendant pointed the gun at him and then ran off. Mr. Sulton then
informed the police that he was unarmed, went to the victim, took a
handgun from the victim, threw it onto the roof, and ran when he heard
the police.

On cross-examination, Mr. Sulton gave a third version of the events of
the evening, testifying that he in fact did not come up the stairs, but
rather was in his apartment when he heard the shots fired, and then came
out. He maintained that he did not have a gun until he took one off of the
victim, and he then chased after the Defendant. Mr. Sulton further stated
that the Defendant called him “not even an hour afterwards” and
threatened to kill him. Mr. Sulton also denied having ever told Ms.
Turner, Mr. Nelms or Ms. Noel that the gun he had was his and that he
retrieved it from off the television set in his apartment.

The State called three rebuttal witnesses: Ms. Roshunda Turner, the
victim’s aunt; Mr. Damen Nelms, the victim’s uncle; and Ms. Memorie
Noel, another aunt of the victim and a previous witness. All three
testified that they saw Vince Sulton a day after the murder, and he told

                                   -5-
        them that after the shooting he went into his apartment and got a gun
        which was located on his television set.

        At the conclusion of the trial, the jury returned a verdict of guilty on the
        indicted charge of first degree, premeditated murder. The trial court
        sentenced the Defendant to life in the custody of the Department of
        Correction. The Defendant timely filed a motion for a new trial, which
        was denied, and this appeal followed.

State v. Tamaine Works, No. W2005-01048-CCA-R3CD, 2006 WL 1491636, at
*1-4 (Tenn. Crim. App. May 26, 2006).

       Petitioner filed a subsequent petition for post-conviction relief. This court
summarized the testimonies presented at the hearing on the post-conviction
petition as follows:

        At the post-conviction hearing, trial counsel testified that he represented
        the Petitioner in the conviction proceedings. He estimated that he was
        retained or appointed ten to twelve months before the trial. He said the
        Petitioner was one of his favorite clients. He said he was never informed
        of a potential alibi defense. He said the Petitioner never denied shooting
        the victim. He recalled that he realized the Petitioner was the shooter
        when the Petitioner became very upset with Kimberly Pruitt, who
        testified at the preliminary hearing as an eyewitness, because the
        Petitioner said she was not the person who opened a door and saw him
        outside an apartment with a big gun.

        Trial counsel testified that there were two alternative strategies available.
        First, the defense might pursue a voluntary manslaughter theory based
        upon the Petitioner’s killing the victim after learning that the Petitioner’s
        best friend had been killed hours earlier. He said the prosecutor seemed
        to agree with this theory because the prosecutor made a second degree
        murder plea offer. The second theory was that Ms. Pruitt was lying and
        that she did not identify the Petitioner when the police showed her
        photographs while she was hospitalized, even though she had known
        him for a long time. He said the Petitioner identified another woman as
        the person who saw him outside the apartment, but the Petitioner could
        not recall the woman’s name. He said that at every meeting before the
        trial, he and the Petitioner discussed the Petitioner’s contention that Ms.
        Pruitt was lying. He said he talked to Ms. Pruitt at the preliminary
        hearing and at the trial but did not think he talked to her between them.
        Trial counsel testified that he wanted to talk to a man who had been
        inside the apartment and who had given conflicting statements, but he

                                            -6-
was not able to do so because the man was represented by counsel. He
agreed that he did not do any further investigation of the information
disclosed by the State. He said that he did not go to the crime scene to
take photographs but that photographs were provided to him. He said he
saw no reason to “waste the State’s money to send somebody out there
to verify what [he] believed to be true.” He said that misidentification
due to lighting or other conditions was not an issue because Ms. Pruitt
claimed to have seen the Petitioner at the door from two to three feet
away. Counsel acknowledged that he never looked on the roof at the
scene, even though there was evidence that the gun and a liquor bottle
were on the roof. He said he did not know about the gun on the roof at
the preliminary hearing stage because there was nothing in the affidavit
of complaint about it. He said he did not obtain a mental evaluation of a
client if he did not appear to need one. He said there were no alternative
theories of how the shooting occurred.

Trial counsel testified that it was apparent to him early in his
representation that either the Petitioner was present when the Petitioner’s
best friend was killed or the Petitioner received the information about the
killing from someone. He said the Petitioner was adamant that he was
not present. Counsel said he wanted to interview any witness who told
the Petitioner about the killing and asked the Petitioner if there were any
witnesses he should investigate. He said they discussed this “very
paramount issue” before the trial. He said the Petitioner did not want
him to call any witnesses relative to a heat of passion defense. He said
that the prosecutor seemed to understand that the crime occurred in the
heat of passion and that they attempted to negotiate a plea agreement, but
the Petitioner was not interested. He said he intended to present a heat of
passion defense, but the trial judge ruled that the defense could not
present this theory unless the Petitioner or another witness provided
relevant testimony. He said he argued that the ruling infringed upon the
Petitioner’s Fifth Amendment right not to give evidence against himself.
Counsel said that his conversations with the prosecutors involved the
heat of passion defense and that he did not anticipate they would ask the
court to exclude evidence of a heat of passion defense unless the
Petitioner testified. He said that until the day of the trial, he assumed
that the heat of passion defense could be developed through his cross-
examination of witnesses and that he would not need other witnesses on
this point. It never occurred to him that the State would object to
evidence of a heat of passion defense. He thought the question of
relevance occurred to one of the prosecutors on the Friday before the
trial began on Monday when he said that the Petitioner might not testify.


                                   -7-
Trial counsel testified that after the court ruled that the defense must
establish the relevance of a heat of passion defense, he talked to the
Petitioner. He advised the Petitioner to consider the plea offer or to tell
him where to find the woman who told the Petitioner about the earlier
shooting. He said that he wanted to call the woman as a witness but that
the Petitioner “absolutely did not want to do that.” He thought that at the
time, the Petitioner did not want to disclose that he was the shooter. He
said, however, that the Petitioner never affirmatively said he was the
shooter. Counsel said the only eyewitnesses were the woman in the
apartment and Mr. Sulton, who did not see the shooting but removed the
victim’s gun.

Trial counsel testified that the State decided not to call Vincent Sulton to
testify in order to avoid evidence about the prior shooting. He said that
although he could not use Mr. Sulton to establish the prior shooting, he
called Mr. Sulton as a defense witness to show that Mr. Sulton took a
gun from the victim. He agreed that self-defense could have been a
defense theory but said it was not considered because it was clear that
the Petitioner shot the victim to avenge his best friend’s killing.

Trial counsel testified that he presented the testimony of a police officer
who canvassed the area near the scene to show that no one had any
information about the shooting. He presented this evidence to rebut the
testimony of the State’s witnesses who said they had been at the scene
ready to talk to the police. He said he also called Detective Merritt to
rebut a police officer’s prior testimony that was unfavorable to the
Petitioner. He said that he unsuccessfully opposed admission of the
prior testimony as unreliable but that the court admitted it because the
officer died before the trial.

On cross-examination, trial counsel testified that before representing the
Petitioner, he had represented about thirty defendants in murder cases.
He said he had more jury trial experience in first degree murder cases
than other cases. He was a former law clerk for a court of criminal
appeals judge, and he did criminal trial and appellate work once he
entered private practice.

Trial counsel testified that self-defense was not a viable option. He said
the viable options were a voluntary manslaughter defense and
establishing reasonable doubt by showing that the State’s main witness
lied. He acknowledged that he was somewhat thwarted by the State’s
late tactical move. He reiterated that the Petitioner did not provide any
information about an alibi. He said the Petitioner told him repeatedly

                                   -8-
about crying as the Petitioner’s best friend was taken away in an
ambulance, to die later.

Trial counsel testified that he hired investigators in murder cases when
there was a need for an investigation or if there were things a client told
him that were not covered by the discovery materials. He said there was
not a need for an investigator in this case and noted that the Petitioner’s
account was consistent with the State’s facts. He said that a substantial
amount of time elapsed before he received Mr. Sulton’s statement about
the gun and that he did not think an investigator would have found the
gun after he learned of the statement. He also said he did not know how
he would be able to establish after one and [one-half] years that the gun
was the victim’s. He said that for the first six months of his
representation, the Petitioner maintained that Ms. Pruitt’s account could
not be correct, but that the Petitioner did not admit he was at the scene.
He said the Petitioner eventually admitted the type of gun he had, the
garbage bag over the gun, and what he was trying to do. Counsel
acknowledged that his cross-examination of Ms. Pruitt was unsuccessful
but asserted that he made his best effort. He said that his trial strategy
included emphasis on Ms. Pruitt’s previous failure to identify the
Petitioner and that a motion to suppress evidence of the identification
procedure would have been counterproductive.

Trial counsel testified that the State’s first settlement offer was for
twenty years. He said he reviewed the offer, the sentence, and the
required percentage of service with the Petitioner. He discussed the
State’s second offer for fifteen years with the Petitioner. He said the
State made an offer for thirteen and one-half years during the trial, which
the Petitioner refused. He said that he and the Petitioner felt good about
the trial when the Petitioner turned down the third offer. He said he was
used to clients refusing good offers and denied getting angry at the
Petitioner or treating him differently.

Trial counsel testified that the Petitioner was one of his favorite clients
because the Petitioner was communicative about what he did and did not
want. He said the Petitioner agreed with the direction of the case. He
said he had good rapport with the Petitioner’s mother, as well.

With respect to the appeal, trial counsel testified that he reviewed his
notes and the transcript to determine the appellate issues. He said his
appellate strategy was not to raise every possible issue because doing so
detracted from the issues which offered the best possibility for relief. He
said he maintained communication with the Petitioner throughout the

                                   -9-
appellate process, although there were not many occasions for updates.
He said the appeal was unsuccessful, which was not unusual in criminal
cases.

Trial counsel acknowledged that he may have prompted one of the
prosecutors to realize that the State could challenge the defense’s ability
to cross-examine witnesses about heat of passion evidence. He said he
“joked” with one of the prosecutors before the trial by indicating the
Petitioner might not testify. He said it was not unusual to be equivocal
with a prosecutor about whether a defendant would testify. He said that
had he known the State would challenge the admissibility of cross-
examination evidence of the prior shooting, he would not have relied on
the State to call Mr. Sulton as a witness or expected to be able to cross-
examine Mr. Sulton about the prior shooting. He said he met with the
Petitioner after the trial court’s ruling and advised him that the fifteen-
year offer was “not such a bad offer any more.” He said the Petitioner
was adamant that he would not accept the plea offer and that he wanted
counsel to challenge Ms. Pruitt’s testimony that she was at the scene. He
advised the Petitioner that they could make the prior homicide relevant if
the Petitioner had a witness who would testify that he or she saw it and
told the Petitioner about it. He said the Petitioner, however, did not want
to get “her” involved. He stated that after the court ruled against the
defense, he was concerned about the defense and determined that the
options were for him to convince the Petitioner to plead guilty, for the
Petitioner to testify, or for him to convince the jury that the State failed
to sustain its burden of proof.

On redirect examination, trial counsel acknowledged that he pursued the
voluntary manslaughter theory even though he knew the Petitioner did
not want to testify. He thought the reason and state of mind for the
killing would be clear to the jury even if the Petitioner did not testify.
He said one of the prosecutors acknowledged to him that the verdict
might be voluntary manslaughter. He identified his billing records,
which he said were created when he prepared his billing statement about
one year after the case concluded. He identified an entry which showed
he delivered the fifteen-year offer two months and two days before the
trial and said it probably was the same day he received the offer. He said
there had been a previous twenty-year offer when he received the
discovery information.

Sherrill Royston, the Petitioner’s mother, testified that she was present at
the Petitioner’s trial. She said that after Mr. Sulton was questioned about
the location of the victim’s gun, she overheard one of the prosecutors tell

                                   - 10 -
other State’s witnesses that they must testify that the gun was on a
television set, not thrown on the roof, in accord with Mr. Sulton’s
testimony. She said that afterwards, one of the victim’s family members
testified to that effect. She thought the witnesses involved were family
members of the victim, but she could not identify them by name.

On cross-examination, Ms. Royston testified that the prosecutor said,
“[Y]ou’re going to have to say exactly word for word what the first
witness has said. . . . [Y]ou’re going to have to say that.” She said that
four or five of the people testified. She said she had stepped out of the
courtroom to pray when she heard the prosecutor instruct the witnesses
about their testimony. She said she was holding her Bible but was not
reading it. She acknowledged her prior statement to a defense
investigator in which she said she was reading her Bible when she
overheard the prosecutor’s instructions. She said she mentioned the
prosecutor’s actions to trial counsel but did not recall when she told him
about it.

On redirect examination, Ms. Royston testified that she had not had the
opportunity to review the statement she gave the defense investigator or
to correct any misinterpretations. She said she had her Bible open and
was praying when she overheard the prosecutor’s instructions to the
witnesses.

Summer Hampton testified that she married the Petitioner after he was in
prison. She recalled the date of the crime because it was the same day
that [Eric Robinson], the Petitioner’s friend, was killed. She said that
she learned of [Robinson’s] killing about 7:30 p.m. that day but that she
did not tell the Petitioner. She did not know if the Petitioner knew of the
incident. She said the Petitioner came home to the Petitioner’s aunt’s
apartment about 8:30 p.m. and did not leave the apartment that night.
She claimed the Petitioner was with her when the victim in the
Petitioner’s case was killed. She said her three children were with them
at the apartment. She said that the Petitioner’s aunt, Mary Barnes, came
home about 9:00 p.m. and that Ms. Barnes was now deceased. She said
she and the Petitioner went to bed before 10:00 p.m. and awakened the
next morning around 6:30. She said that no one ever asked her about the
evening of the victim’s homicide.

On cross-examination, Ms. Hampton testified that neither she nor the
Petitioner was working at the time of the crime. She was about twenty-
five and the Petitioner about twenty two at the time. She said they
awakened at 6:30 a.m. in order to get her son ready for school. She

                                  - 11 -
maintained that they went to bed around the same time every night. She
said they discussed Mr. [Robinson’s] homicide that night. She was not
present when Mr. [Robinson] was killed and did not know where the
Petitioner was before he came home. She said Kimberly Longmeyer
told her about Mr. Robinson’s death.

The Petitioner testified that trial counsel failed to communicate with his
alibi witnesses. He said he tried to talk to counsel about the witnesses
and denied that he told counsel not to talk to them. He said the alibi
witnesses were Summer Hampton, Mary Cole Shelby, Latoya Banks,
and Mary Barnes. He said Mr. [Robinson] took him to see Ms. Shelby,
his parole officer, around 4:00 or 5:00 p.m. He said Ms. Banks was a
resident of the apartment complex where Mr. [Robinson] was killed and
could have testified about what happened there. He claimed counsel told
him that the State made a settlement offer of twenty years at eighty-five
percent and that they would have to go to trial if he did not accept the
offer because the State would not budge. He said counsel never
communicated a fifteen- or thirteen-year offer to him. He claimed he
asked counsel to see if the State would accept a fifteen-year offer. He
said that after the trial, he asked counsel about the fifteen-year offer and
that counsel said he thought he told the Petitioner about it and
apologized if he did not.

The Petitioner testified that trial counsel advised him not to testify and
said the State would question him about his “charges.” He claimed he
wanted to testify but said he deferred to counsel’s wisdom from
experience. He denied that trial counsel reviewed the evidence with him.
He stated that he asked counsel to hire an investigator but that counsel
said he was going to rely on the State’s information. He said he wanted
an investigator to make photographs from different angles than the
State’s photographs and to look on the roof for the gun. He also wanted
an investigator to search for a woman named Ranita, whom he said may
have provided information to Ms. Pruitt. He stated that counsel assumed
he was present when the victim was killed but that he was not. He said
he tried to tell counsel that counsel could show that Ms. Pruitt was not
truthful about being present when the victim was killed.

The Petitioner testified that had he testified at his trial, he would have
said he had nothing to do with the crime. He said he would have
testified that he was at Graceland Farms with Ms. Hampton, Ms. Barnes,
and the children.



                                   - 12 -
On cross-examination, the Petitioner testified that he complained to trial
counsel in person about counsel’s performance. He acknowledged a
letter he sent counsel on January 26, 2006, which was after the
Petitioner’s March 2005 trial, in which he said that counsel was doing
his job. He said he was appreciative of the “little things” counsel did at
the time. He also acknowledged a September 2005 letter in which he
asked if he could take the fifteen[-]year offer, even though this was after
his trial.

The Petitioner testified that trial counsel gave him the discovery
materials. He said he did not receive some of the materials, such as the
preliminary hearing transcript, until after his trial. He denied that he and
counsel reviewed the discovery materials together or that counsel
discussed them with him. He said it was counsel’s decision, not his, that
he not testify, but he acknowledged that he heeded the advice of counsel
in this regard.

On redirect examination, the Petitioner testified that he wanted to testify
about his alibi defense at his trial. He said Ms. Hampton could have
corroborated his alibi. On recross-examination, the Petitioner testified
that Ms. Hampton was present outside the courtroom during his trial. He
thought he came home around 8:00 or 8:30 on the night of the crime. He
said he bathed, ate, and went to bed. He did not recall what time he went
to bed. He said that they watched a movie and that they did not talk
about anything.

Assistant District Attorney General Dean DeCandia testified that he
participated in the Petitioner’s trial. He said he spoke with witnesses
before the trial and denied that he advised them how to testify. He
specifically denied that he told the witnesses how to testify during the
rebuttal proof. He said that he might leave the courtroom to get
something from his office or to use the restroom but that he would not
leave to talk to a witness who had not yet testified.

On cross-examination, General DeCandia testified that at some point,
some of the witnesses made the prosecutors aware that Mr. Sulton’s
statements made after the crime were inconsistent with his trial
testimony. He did not recall whether he advised defense counsel. He
said Mr. Sulton gave conflicting statements to the police, first claiming
he was not present for the shooting and only heard about it, but later
saying he came to the scene after he heard shots and took a gun from the
victim. He said that during cross-examination, Mr. Sulton first claimed
he had not been at the scene but later said he was in his apartment when

                                   - 13 -
        the shooting happened and took a gun from his television stand and went
        toward the Petitioner.

        General DeCandia testified that the fifteen-year offer was made during
        the trial. He saw trial counsel lean over and speak to the Petitioner. He
        stated that almost immediately thereafter, counsel advised him that the
        Petitioner rejected the offer.

        The [post-conviction] court denied relief in a detailed order. The court
        discredited the testimony of the Petitioner and accredited that of trial
        counsel. The court found that the Petitioner was not denied the effective
        assistance of counsel. The court did not, however, address the allegation
        that the Petitioner was entitled to a new trial due to prosecutorial
        misconduct. This appeal followed.

Tamaine Works v. State, No. W2011-00209-CCA-R3PC, 2012 WL 2951925, at
*4-10 (Tenn. Crim. App. July 20, 2012).

Analysis

       A. Petition for Post-conviction DNA Analysis

       As noted above, Petitioner sought both post-conviction relief and error coram
nobis relief. For consistency, we will refer to the lower court as the post-conviction
court. Petitioner argues that the post-conviction court erred by denying his petition for
post-conviction DNA analysis. The Post-Conviction DNA Analysis Act of 2001 (“The
Act”) allows petitioners convicted and sentenced for certain homicide and sexual assault
offenses in which biological evidence may have existed to request post-conviction DNA
testing. T.C.A. § 40-30-303. The Act contains no statutory time limit and extends to
petitioners the opportunity to request analysis at “any time,” regardless of whether such a
request was made at trial:

        [A] person convicted of and sentenced for the commission of first degree
        murder . . . may at any time, file a petition requesting the forensic DNA
        analysis of any evidence that is in the possession or control of the
        prosecution, law enforcement, laboratory, or court, and that is related to
        the investigation or prosecution that resulted in the judgment of
        conviction and that may contain biological evidence.

Griffin v. State, 182 S.W.3d 795, 799 (Tenn. 2006) (citing T.C.A. § 40-30-303). A post-
conviction court is obligated to order DNA analysis when the petitioner has met each of
the following four conditions:


                                          - 14 -
         (1) A reasonable probability exists that the petitioner would not have
        been prosecuted or convicted if exculpatory results had been obtained
        through DNA analysis;
        (2) The evidence is still in existence and in such a condition that DNA
        analysis may be conducted;
        (3) The evidence was never previously subjected to DNA analysis or was
        not subjected to the analysis that is now requested which could resolve
        an issue not resolved by previous analysis; and
        (4) The application for analysis is made for the purpose of demonstrating
        innocence and not to unreasonably delay the execution of sentence or
        administration of justice.

T.C.A. § 40-30-304; see also Griffin, 182 S.W.3d at 798. Additionally, if DNA analysis
would have produced a more favorable verdict or sentence if the results had been
available at the proceedings leading up to the conviction or sentence, then the post-
conviction court may order DNA analysis when the petitioner meets the same conditions.
T.C.A. § 40-30-305; see also Griffin, 182 S.W.3d at 798. In either instance, some
physical evidence must be available and in a proper condition to enable DNA analysis.
T.C.A. §§ 40-30-304(2), -305(2).

       A petitioner’s failure to meet any of the qualifying criteria is fatal to the action.
See William D. Buford v. State, No. M2002-02180-CCA-R3-PC, 2003 WL 1937110, at
*3 (Tenn. Crim. App., Nashville, Apr. 24, 2003). Moreover, the Act does not specifically
provide for a hearing as to the qualifying criteria and, in fact, authorizes a hearing only
after DNA analysis produces a favorable result. See T.C.A. § 40-30-312.

        The post-conviction court has considerable discretion in determining whether to
grant relief under the Act, and the scope of appellate review is limited. See Sedley Alley
v. State, No. W2006-01179-CCA-R3-PD, 2006 WL 1703820, at *5 (Tenn. Crim. App., at
Jackson, June 22, 2006). In making its decision, the post-conviction court must consider
all the available evidence, including the evidence presented at trial and any stipulations of
fact made by either party. Id. The lower court may also consider the opinions of this
court and the Tennessee Supreme Court on direct appeal of the petitioner’s convictions or
the appeals of the petitioner’s prior post-conviction or habeas corpus actions. Id. On
appellate review, this court will not reverse unless the judgment of the lower court is not
supported by substantial evidence. Id.

       In his brief, Petitioner makes the following argument concerning this issue:

        The trial court relied upon past alleged evidence about the forensic
        testifying of the shell casings, however by not allow[ing] a proper
        response from the district attorney general your appellant was effectively
        denied his day in court to present exculpatory evidence to the court,

                                           - 15 -
        [J]udge Craft already had formed a bias [sic] opinion due to his acting as
        prosecutor (being a former prosecutor in Shelby County) and judge in
        this case. He (the trial court judge) refuses to address or admit that
        Shelby County District Attorney General & Office has and will hide
        exculpatory evidence from the defense, as happen [sic] due to a regular
        course of business.

        The appellant in this case demands that due process be followed and he
        be allowed to test [a]ny and [a]ll forensic evidence in this case, [up to]
        and including [a]ll evidence that was preserved on the body of the
        deceased. This shall establish the actual innocence of this appellant.
        After thoroughly reviewing the record and the applicable law, it is
        requested that this Court of Criminal Appeals conclude that there is
        reversible error in the trial courts judgment. Haddox vs. State, 2004 WL
        2544688; Schaffer vs. State, 2011 WL 2120169.

        In his petition for post-conviction DNA analysis, Petitioner asserts that “the
positive result of forensic tests would have along with the mis-identification of this
petitioner by a main witness; Vincent Sulton exculpated this petitioner of any and all
involvement in this alleged crime.” He further asserts that “[h]ad the forensic evidence
recovered in this case been effectively tested for DNA against the petitioner, the end
results would have shown that Petitioner was not involved in this crime,” and he states
that “the mere fact that the shell casings that were forwarded to the Tennessee Bureau of
Investigation [TBI] . . . laboratory for testing failed to be tested for DNA.”

       In the order denying Petitioner’s request for DNA analysis, the post-conviction
court said:

        This Court had heard expert testimony repeatedly in other cases it has
        tried that DNA cannot be recovered from fired cartridge cases due to the
        extreme temperature (@ 3,000 degrees) that a cartridge reaches when the
        powder in it is ignited. Even assuming that DNA could be recovered
        from the cartridges, however, and could be analyzed and show that the
        DNA on the cartridges did not belong to the petitioner, this fact at most
        would only be able to show that someone other than the petitioner may
        have at some time prior to the shooting touched those cartridges. Any
        possible results of any DNA testing on those cartridges, if ordered by
        this court, would never be able to demonstrate the innocence of the
        petitioner or have resulted in a more favorable verdict or sentence,
        pursuant to Tenn. Code Ann. § 40-30-304 or -305.

      We agree with the post-conviction court. As pointed out by the State, in State v.
Malcolm Witherow, No. E2012-00131-CCA-R3-CD, 2013 WL 3353338 (Tenn. Crim.

                                          - 16 -
App. June 28, 2013), Dr. Laura Boos of the TBI, an expert in serology and DNA, testified
that “it is not uncommon for DNA to be undetected on shell casings, because the heat
produced by the firearm degrades DNA.” Id. at *6. Thus, even assuming that another
person’s DNA was found on the shell casings, this finding would not have changed the
outcome of trial.

      Because Petitioner’s request fails to pass the first procedural hurdle, it is not
necessary to consider the remaining factors because all four factors must be satisfied to
warrant DNA testing under either provision. Powers v. State, 343 S.W.3d 36, 48 (Tenn.
2011). Petitioner is not entitled to relief on this issue.

       B. Motion Under Rule 60.02 of the Tennessee Rules of Civil Procedure

       Petitioner, citing Rule 60.02 of the Tennessee Rules of Civil Procedure, argues the
following:

        The petitioner claims entitlement to prove [“]Actual Innocence” in this
        case, on the grounds that the State violated the requirements of Brady v.
        Maryland . . . when it failed to surrender the statements of Preston M.
        Rucker; Moniqica L. Rucker; Kendrick Crutcher; Warlean Williams;
        Terrance Antwane Jones; Cornelius Green; Henry Schoefield & Vincent
        Sulton . . . Further, the District Attorney General, [            ] having
        committed perjury during his testimony in prior Post-Conviction
        proceedings. It comes to light now that a witness statement concerning a
        gun being in possession of a victim of a violent crime where Mr. Sulton
        removed the gun from the victim, the Shelby County District Attorney
        General was seen instructing the State witnesses to testify to the same set
        of facts.

Petitioner further states that the “issue of prosecutorial misconduct calls for an
investigation” and that the assistant district attorney general “improperly coerced the
states witness(es) Ms. Rosundra Turner, Mr. Damen Nelms or Ms. Memorie Noel, to
testify falsely concerning Vincent Sulton[’s] testimony about being in possession of a
handgun, further instructing them to testify to the same statement, that Mr. Sutton
retrieved the gun from inside of his house from the top of the TV in his apartment.”
(emphasis in original).

        Rule 60.02 of the Tennessee Rules of Civil Procedure provides, in pertinent part,
that

        On motion and upon such terms as are just, the court may relieve a party
        or the party’s legal representative from a final judgment, order or
        proceeding for the following reasons: (1) mistake, inadvertence, surprise

                                          - 17 -
        or excusable neglect; (2) fraud (whether heretofore denominated intrinsic
        or extrinsic), misrepresentation, or other misconduct of an adverse party;
        (3) the judgment is void; (4) the judgment has been satisfied, released or
        discharged, or a prior judgment upon which it is based has been reversed
        or otherwise vacated, or it is no longer equitable that a judgment should
        have prospective application; or (5) any other reason justifying relief
        from the operation of the judgment. The motion shall be made within a
        reasonable time, and for reasons (1) and (2) not more than one year after
        the judgment, order or proceeding was entered or taken.

As previously noted by this court:

        Judgments of conviction are criminal matters and are therefore not
        governed by the rules of civil procedure. Instead, they are governed by
        the rules and statutes dealing with criminal procedure. For this reason,
        Petitioner’s reliance on Rule 60.02 of the Tennessee Rules of Civil
        Procedure is misplaced.

Duane M. Coleman v. State, No. M2012-00848-CCA-R3-PC, 2013 WL 948430, at *2
(Tenn. Crim. App. Mar. 11, 2013), no perm. app. filed; see also Andre L. Mayfield v.
State, No. M2012-00228-CCA-R3-HC, 2012 WL 5378078, at *2 (Tenn. Crim. App. Oct.
26, 2012) (“Petitioner’s reliance on Tennessee Rule of Civil Procedure 60.02 is
misplaced because the Rules of Civil Procedure are limited in their application to civil
matters.”). Therefore, Petitioner is not entitled to relief on this issue.

      C. Petition for Writ or Error Coram Nobis

        Petitioner argues that he is entitled to due process tolling of the statute of
limitations for his petition for writ of error coram nobis based on “newly discovered
evidence of actual innocence.” More specifically, Petitioner alleges that the State
withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed. 2d 215 (1963).

       A writ of error coram nobis is a very limited remedy which allows a petitioner the
opportunity to present newly discovered evidence “which may have resulted in a different
verdict if heard by the jury at trial.” Workman v. State, 41 S.W.3d 100, 103 (Tenn.
2001); see also State v. Mixon, 983 S.W.2d 661 (Tenn. 1999). The remedy is limited “to
matters that were not and could not be 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
proceeding.” T.C.A. § 40-26-105. Examples of newly discovered evidence include a
victim’s recanted testimony or physical evidence which casts doubts on the guilt of the
Petitioner. Workman, 41 S.W.3d at 101; State v. Ratliff, 71 S.W.3d 291 (Tenn. Crim.
App. 2001); State v. Hart, 911 S.W.2d 371 (Tenn. Crim. App. 1995). The supreme court

                                          - 18 -
has stated the following concerning the standard to be applied when a trial court reviews
a petition for writ of error coram nobis:

        [T]he trial judge must first consider the newly discovered evidence and
        be “reasonably well satisfied” with its veracity. If the defendant is
        “without fault” in the sense that the exercise of reasonable diligence
        would not have led to a timely discovery of the new information, the trial
        judge must then consider both the evidence at trial and that offered at the
        coram nobis proceeding in order to determine whether the new evidence
        may have led to a different result.

State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007). Whether to grant or deny a petition
for writ of error coram nobis rests within the sound discretion of the trial court. Id. at
527-28.

       A petition for writ of error coram nobis must be dismissed as untimely filed unless
filed within one (1) year of the date on which the petitioner’s judgment of conviction
became final in the trial court. Mixon, 983 S.W.2d at 670. The only exception to this is
when due process requires a tolling of the statute of limitations. Workman, 41 S.W.3d at
103.

        Petitioner does not dispute that his petition for writ of error coram nobis was not
timely filed. A judgment becomes final, and the one-year coram nobis statute of
limitations begins to run thirty days after entry of the judgment in the trial court if no
post-trial motion is filed, or upon entry of an order disposing of a timely filed post-trial
motion. T.C.A. § 27-7-103; Mixon, 983 S.W.2d at 670. In this case, Petitioner was
convicted on March 3, 2005. It is not clear from this record whether he filed a motion for
new trial but in any event, Petitioner did not file his petition for writ of error coram nobis
until October 27, 2017, well past the time that a motion for new trial would have been
denied. In addition to being untimely filed, the trial court also found that Petitioner had
not alleged any grounds that would toll the statute of limitations. The court concluded:

        [T]his court has examined the allegations made by the petitioner in his
        lengthy petition and finds all of his allegations are merely conclusory.
        As one example, the petitioner alleges repeatedly that the State put on
        false testimony and did not give him Brady material at trial. However,
        he alleges no newly discovered evidence that any trial testimony was
        false, and cites no witness statements not furnished that appear to this
        court to be Brady material. Witness statements are not required to be
        produced prior to trial unless they contain Brady material. As one
        example, he quotes on page 27 of his petition the affidavit of complaint
        stating that trial witnesses Pruitt and Sulton knew the petitioner well, and
        then states that they could not have known him well because he was

                                            - 19 -
        newly released from the Shelby County Penal Farm. This is not newly
        discovered evidence that would have led to a different result at trial, but
        merely statements of opinion made by the petitioner. Ms. Pruitt’s and
        Mr. Sulton’s credibility was thoroughly explored at trial and on post[-]
        conviction. As another example, he alleges that his co-defendant
        confessed, and that the State concealed this statement from him.
        However, he had no co-defendant. He is merely wishing to re-litigate
        his trial and the credibility of the witnesses that testified at the trial. This
        part of his filing styled “writ of error coram nobis” is also dismissed.

        The post-conviction court properly dismissed petitioner’s petition for writ of error
coram nobis. In his brief on appeal, Petitioner argues that he is entitled to error coram
nobis relief because the “prosecution suppressed [a]ll of the attached Exhibits(s) and
prevented these issues of Constitutional dimension from being litigated.” Petitioner
further states that the “Shelby County District Attorney General denied any Brady
requests made by the petitioner, however, a viewing of the District Attorney General’s
file in this matter revealed the withheld Brady material.” However, in Nunley v. State,
552 S.W.3d 800 (Tenn. 2018), the supreme court recently held that “an error coram nobis
proceeding is not the appropriate procedural vehicle for obtaining relief on the ground
that the defendant suffered a constitutional due process violation under Brady. The
appropriate procedural mechanism to seek relief for a Brady violation is a post-conviction
proceeding.” Id. at 819. Therefore, Petitioner is not entitled to relief on this issue.

                                      CONCLUSION

        Accordingly, the judgment of the post-conviction court is affirmed.


                                            ______________________________________
                                            THOMAS T. WOODALL, JUDGE




                                             - 20 -
