        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               February 10, 2015 Session

                HARVEY TAYLOR v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                    No. 2008-B-1760     Monte Watkins, Judge




               No. M2014-00541-CCA-R3-ECN – Filed March 16, 2015



Petitioner, Harvey Taylor, pled guilty to rape on August 20, 2009. On October 11, 2012,
Petitioner filed a petition for writ of error coram nobis, citing newly discovered evidence.
The coram nobis court appointed counsel, who filed an amended petition. The State filed
a motion to dismiss on the ground that the petition was untimely. Counsel then filed a
motion to withdraw. The coram nobis court granted both the motion to withdraw and the
motion to dismiss. On appeal, Petitioner argues that the coram nobis court erred in
allowing his original counsel to withdraw without responding to the State‟s motion to
dismiss and by dismissing his petition as untimely without holding an evidentiary hearing
to determine whether due process required tolling of the statute of limitations. Upon our
review of the record, we determine that Petitioner‟s claims, if true, would not entitle him
to coram nobis relief and would not warrant tolling the statute of limitations. Therefore,
we affirm the judgment of the coram nobis court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the Court, in which THOMAS T.
WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

Richard C. Strong, Nashville, Tennessee, for the appellant, Harvey Taylor.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Counsel;
Glenn Funk, District Attorney General; and Roger Moore, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                        OPINION
                          Factual and Procedural Background

       In 2008, Petitioner was indicted by the Davidson County Grand Jury with one
count of aggravated rape. On August 20, 2009, Petitioner pled guilty to the lesser
included offense of rape and was sentenced to twelve years‟ incarceration. At the plea
submission hearing, the State provided the following factual basis for Petitioner‟s plea:

              [O]n May the 4th, 2007 [the Petitioner] entered [the victim‟s] room
      and had vaginal-penile intercourse with her. The witnesses would [have]
      testified that [the victim], who is a patient at Madison Health Care and
      Rehabilitation Center, which is a nursing home in Davidson [C]ounty, was
      seventy years old at [the] time, suffered from advanced condition of
      bipolar, diabetes, and a host of other ailments.

             When Charlotte Boyd, on May the 5th, 2007—who is a certified
      nurse technician—entered [the victim‟s] room to find out how she was
      doing and take her to get a shower[,] [the victim] was very upset. She
      began telling [the] nurse—or, Certified Nurse Technician Boyd, again and
      again, that a large black man had entered her room last night and had had
      sex with her. At one point Ms. Boyd was continually asking her “What do
      you mean?” And the victim in the case used her hands to explain that this
      man had inserted his penis into her vagina. And she actually made hand
      gestures to convince Ms. Boyd that there was a problem.

             Ms. Boyd, following the chain of command, reported the rape to
      Marcia Patterson. And as Marcia Patterson began to approach [the victim]
      to ask her about the incident [the victim] was frantically telling other CNTs,
      including Pamila Hatton, Diane Heddon, and Shawnta Brown, what had
      happened. At one point [the victim] was so upset that she poured water on
      the floor, [claiming] that her water just broke and that she needed someone
      to take her to the emergency room immediately because she was having a
      baby.

             Finally, Linda Thompson who is the primary nurse of [the victim]
      was notified. And [the victim] . . . was taken into a room where Nurse
      Thompson began to ask her questions about what had happened last night.
      [The victim] reported over and over to Nurse Thompson that the man had
      come into her room, that he had put her legs over [his] shoulder, and that he
      had inserted his penis into her vagina.



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             At that point Detective Jason Terry with the Metropolitan Police
      Department was notified and met Linda Thompson and [the victim] at
      General Hospital. At General Hospital, Nurse Practitioner Beverly Byrum
      (ph.) would have testified that . . . she began doing a medical-legal exam.
      As part of the medical-legal exam she collected the victim‟s panties. She
      would have testified that she noted that there was blood in the crotch of [the
      victim‟s] panties. And during the medical-legal exam she noted bruising to
      the victim‟s inner thigh, a hematoma in the victim‟s vaginal wall, and small
      tears to all the sides of her vaginal wall. There were several swabs that
      were collected. And all of these items were sent to the TBI for analysis.

             Detective Terry spoke with the [Petitioner] several times. And,
      although the . . . [Petitioner] provided several different [ac]counts of the
      incident he denied repeatedly ever having sexual contact with the victim. . .
      Detective Terry then provided the TBI with oral swabs from [the
      Petitioner]. And found in the crotch of [the victim‟s] underwear was
      semen. That semen matched the DNA profile of the [Petitioner].

Harvey Taylor v. State, No. M2012-01228-CCA-R3-PC, 2013 WL 655699, at *1-2
(Tenn. Crim. App. Feb. 21, 2013), perm. app. denied (Tenn. Aug. 14, 2013), pet. to
rehear denied (Tenn. Feb. 20, 2014). Petitioner subsequently filed a petition for post-
conviction relief, alleging ineffective assistance of counsel. Id. at *2. After a hearing,
the post-conviction court denied relief. Id. at *4. On appeal, this Court affirmed the
judgment of the post-conviction court. Id. at *7.

        On October 11, 2012, while Petitioner‟s appeal on his post-conviction case was
still pending before this Court, he filed a pro se petition for writ of error coram nobis,
alleging the existence of “newly discovered or newly exculpatory materials evidences
[sic]” that were discovered “through continued research by the Petitioner.” On December
13, 2012, the coram nobis court appointed counsel. On August 23, 2013, counsel filed an
amended petition and requested a hearing. On October 17, 2013, the State filed a motion
to dismiss on the ground that the petition was untimely. On November 5, 2013, counsel
filed a motion to withdraw, citing medical issues which would impede her ability to
effectively represent Petitioner. On November 22, 2013, the coram nobis court granted
counsel‟s motion to withdraw and took the State‟s motion to dismiss under advisement.
On December 18, 2013, the coram nobis court filed an order granting the motion to
dismiss and appointed counsel to represent Petitioner on appeal. On March 28, 2014, this
Court granted Petitioner‟s motion to waive the thirty-day deadline for filing a notice of
appeal. Petitioner filed a notice of appeal on April 4, 2014.



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                                          Analysis

      Relief by petition for writ of error coram nobis is provided for in Tennessee Code
Annotated section 40-26-105, which states:

       The relief obtainable by this proceeding shall be confined to errors dehors
       the record and to matters that were not or could not have been litigated on
       the trial of the case, on a motion for a new trial, on appeal in the nature of a
       writ of error, on writ of error, or in a habeas corpus proceeding. Upon a
       showing by the defendant that the defendant was without fault in failing to
       present certain evidence at the proper time, a writ of error coram nobis will
       lie for subsequently or newly discovered evidence relating to matters which
       were litigated at the trial if the judge determines that such evidence may
       have resulted in a different judgment, had it been presented at the trial.

T.C.A. § 40-26-105(b). A petition for a writ of error coram nobis “may be based upon
any „newly discovered evidence relating to matters litigated at the trial‟ so long as the
petitioner also establishes that the petitioner was „without fault‟ in failing to present the
evidence at the proper time.” Harris v. State, 102 S.W.3d 587, 592-93 (Tenn. 2003). To
be considered “without fault,” the petitioner must show that “the exercise of reasonable
diligence would not have led to a timely discovery of the new information.” State v.
Vasques, 221 S.W.3d 514, 527 (Tenn. 2007)). The coram nobis court will then determine
“whether a reasonable basis exists for concluding that had the evidence been presented at
trial, the result of the proceedings might have been different.” Id. In the context of a
guilty plea, relief may be available if the newly discovered evidence calls into question
the knowing and voluntary nature of the plea. Wlodarz v. State, 361 S.W.3d 490, 501
(Tenn. 2012) (citing Newsome v. State, 955 S.W.2d 129, 134 (Tenn. Crim. App. 1998)).
However, the writ of error coram nobis is “an extraordinary procedural remedy,”
designed to fill “only a slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d
661, 672 (Tenn. 1999) (emphasis in original).

       A petition for coram nobis relief must be filed within one year after the judgment
becomes final. T.C.A. § 27-7-103. For the purposes of coram nobis relief, a judgment
becomes final thirty days after the 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.
Mixon, 983 S.W.2d at 670. It has been the “longstanding rule that persons seeking relief
under the writ must exercise due diligence in presenting the claim.” Id. Whether a claim
is barred by an applicable statute of limitations is a question of law, which we review de
novo. Harris v. State, 301 S.W.3d 141, 144 (Tenn. 2010) (citing Brown v. Erachem
Comilog, Inc., 231 S.W.3d 918, 921 (Tenn. 2007)). The State bears the burden of raising


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the statute of limitations as an affirmative defense. Id.; Sands v. State, 903 S.W.2d 297,
299 (Tenn. 1995).

        Despite the one-year statute of limitations, when a petitioner seeks a writ of error
coram nobis based on newly discovered evidence, due process considerations may
require tolling the statute of limitations. Harris, 301 S.W.3d at 145 (citing Workman v.
State, 41 S.W.3d 100, 103 (Tenn. 2001)). Our supreme court has held that, “before a
state may terminate a claim for failure to comply with procedural requirements such as
statutes of limitations, due process requires that potential litigants be provided an
opportunity for the presentation of claims at a meaningful time and in a meaningful
manner.” Workman, 41 S.W.3d at 102 (quoting Burford v. State, 845 S.W.2d 204, 208
(Tenn. 1992)). To determine whether due process principles require tolling the statute of
limitations, a court must balance the State‟s interest in preventing stale and groundless
claims with the petitioner‟s interest in obtaining a hearing to present a later-arising
ground for relief. Harris, 301 S.W.3d at 145 (citing Workman, 41 S.W.3d at 103). In
balancing these interests, the court must apply a three-step analysis:

       (1) determine when the limitations period would normally have begun to
       run; (2) determine whether the grounds for relief actually arose after the
       limitations period would normally have commenced; and (3) if the grounds
       for relief are “later-arising,” determine if, under the facts of the case, a strict
       application of the limitations period would effectively deny the petitioner a
       reasonable opportunity to present the claim.

Id. (quoting Sands, 903 S.W.3d at 301). As a general rule, the claim at issue must not
have existed during the limitations period to trigger due process consideration. Seals v.
State, 23 S.W.3d 272, 278 (Tenn. 2000). Ignorance as to the existence of a claim does
not create a “later-arising” claim for due process purposes. See Brown v. State, 928
S.W.2d 453, 456 (Tenn. Crim. App. 1996); Passarella v. State, 891 S.W.2d 619, 635
(Tenn. Crim. App. 1994). Whether due process considerations require tolling of a statute
of limitations is a mixed question of law and fact, which we review de novo with no
presumption of correctness. Harris, 301 S.W.3d at 145.

       In this case, Petitioner alleges that the rape kit, medical-legal examination results,
TBI reports, and witness statements from the nursing home all constitute newly
discovered evidence. Petitioner claims that, had he known of the existence of this
evidence, especially the hearsay nature of the witness statements reporting the victim‟s
disclosures, he would not have pled guilty but would have insisted upon going to trial.
On appeal, Petitioner argues that the coram nobis court erred in allowing his original
counsel to withdraw without responding to the State‟s motion to dismiss and by
dismissing his petition as untimely without holding an evidentiary hearing to determine
                                              -6-
whether due process required tolling of the statute of limitations. The State asserts that
the coram nobis court properly dismissed the petition as untimely, noting that the
Petitioner failed to offer any basis for due process tolling in his original petition,
amended petition, or appellate brief.

       Upon our careful review of the record in this case, we agree with the State that the
Petitioner fails to allege any basis for due process tolling of the statute of limitations.
“Although it may not be the role of the petition to prove a claim to a due-process override
of the statute of limitations, the petition should at least articulate why principles of due
process should prevail and allege how a due process claim would be proven.” State v.
Thomas Edward Hogue, No. M2005-02874-CCA-R3-CD, 2007 WL 674635, at *3 (Tenn.
Crim. App. Feb. 28, 2007), perm. app. denied (Tenn. May 14, 2007). Petitioner has
made no claims as to when or how he came to discover this evidence. Indeed, it appears
to us that the evidence cited by Petitioner would not even qualify as newly discovered
evidence. In his original petition, Petitioner states that the rape kit results, TBI reports,
and witness statements were included in the discovery provided to his trial counsel. For
example, at one point he specifically states, “The Rape Kit Result should have been
presented by [trial counsel] d[ue] to her having a copy of the Discover[y].” This Court
has previously held that “the fact that the documents had indeed been disclosed to the
defense prior to the petitioner‟s guilty plea establishes that the documents are not newly
discovered evidence.” Arthur W. Stamey, III v. State, No. E2009-00996-CCA-R3-CD,
2010 WL 481198, at *6 (Tenn. Crim. App. Feb. 11, 2010), perm. app. denied (Tenn. June
17, 2010), abrogated on other grounds by Wlodarz, 361 S.W.3d at 501. Petitioner‟s
claim that he was not personally aware of this evidence, even if true, would not entitle
him to coram nobis relief.1

        The main thrust of Petitioner‟s claim seems to be that his trial counsel was
ineffective for failing to thoroughly investigate the case and to adequately review the
discovery with him prior to his guilty plea. Ineffective assistance of counsel is not an
appropriate ground for relief pursuant to a writ of error coram nobis. See Domingo Ponce
v. State, No. M2004-02257-CCA-R3-CO, 2005 WL 1303125, at *3 (Tenn. Crim. App.
May 31, 2005). These claims should have been raised in Petitioner‟s previous petition
for post-conviction relief and are, therefore, waived. See T.C.A. § 40-30-104(d) (“The
petitioner shall include all claims known to the petitioner for granting post-conviction
relief . . . .”). Petitioner had an opportunity to present these claims in a meaningful time
        1
           We note that most of the evidence claimed to be newly discovered by Petitioner, including the
injuries to the victim and the presence of Petitioner‟s semen on her underwear, was referenced in the
State‟s summary of the evidence presented at the guilty plea hearing. Harvey Taylor, 2013 WL 655699,
at *1-2. Additionally, as to the potential hearsay issues with the various witness statements, trial counsel
testified at the post-conviction hearing about this concern, id. at *3, and filed several motions to exclude
detrimental testimony, id. at *7. Therefore, we find it hard to believe that Petitioner was not aware of this
evidence prior to the filing of his petition for writ of error coram nobis.
                                                       -7-
and a meaningful manner, and there has been no showing that these grounds for relief
arose after the statute of limitations began to run. Additionally, because Petitioner has
not alleged grounds that, if true, would entitle him to coram nobis relief, the coram nobis
court was not required to appoint a successor counsel to respond to the State‟s motion to
dismiss or to conduct a hearing to determine whether due process should toll the statute
of limitations.

                                       Conclusion

      For the foregoing reasons, the judgment of the coram nobis court is affirmed.


                                                 ___________________________
                                                 TIMOTHY L. EASTER, JUDGE




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