            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                              Assigned on Briefs December 1, 2015


                  LORENZA ZACKERY v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Davidson County
                       No. 2009-A-941    Seth W. Norman, Judge




                No. M2015-00890-CCA-R3-ECN – Filed December 30, 2015
                             _____________________________

Lorenza Zackery (“the Petitioner”) pleaded guilty to two counts of rape of a child.
Subsequently, the Petitioner filed a Petition for Writ of Error Coram Nobis (“the
Petition”) alleging “newly discovered evidence” in the form of an affidavit from the
Petitioner stating that the victim testified in a 2009 juvenile court hearing that she had no
sexual contact with the Petitioner until she was fifteen years old. The coram nobis court
denied relief. On appeal, the Petitioner argues that (1) due process requires that the
statute of limitations be tolled; (2) the coram nobis court should have held an evidentiary
hearing because the newly discovered evidence shows that the Petitioner was “factually
innocent” of the crime of rape of a child; and (3) the State violated Brady v. Maryland,
373 U.S. 83 (1963) when it failed to provide the Petitioner with a record of the juvenile
hearing.1 Discerning no error, we affirm the judgment of the coram nobis court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE and ROBERT H. MONTGOMERY, JR., JJ., joined.

Lorenza Zackery, pro se, Clifton, Tennessee.




        1
           For the sake of clarity, we interpret the Petitioner‟s brief to raise the above stated issues. As
stated in the Petitioner‟s brief, the issues raised on appeal are (1) “Whether the trial court erred in denying
[the Petitioner‟s] writ of error coram nobis petition without „ordering‟ an evidentiary hearing?”; (2)
“Whether the statute of limitations should be tolled in this case? Due process violation?”; (3) “Issues
newly discovered, Brady materials, inculpatory/exculpatory evidence?”; (4) “Federal issues violation of
due process factual innocence claim?”
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Matt Stephens, District Attorney General Pro Tem;2 and Brian
Holmgren, Assistant District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

                            I. Factual and Procedural Background

                                                 Trial

       The Petitioner was indicted with six counts of rape of a child, seven counts of
rape, three counts of statutory rape by an authority figure, and one count of especially
aggravated sexual exploitation of a minor. All of the charges involved the same victim,
the Petitioner‟s step-daughter. On January 24, 2011, the Petitioner entered guilty pleas to
two counts of rape of a child and received concurrent twenty-year sentences. In this
court‟s opinion from the Petitioner‟s post-conviction appeal, the court included the
prosecutor‟s following recitation of facts from the Petitioner‟s guilty plea submission
hearing:

        Had this matter . . . proceeded to trial, the State‟s proof as to Counts I and II
        of the Indictment would be that on two separate and distinct occasions,
        sometime after the family moved to Davidson County in June of 2003 and
        before the victim named in the indictments birthday which is 7/27/91, [the
        Petitioner] did engage in unlawful sexual penetration of the victim named
        in the Indictment, who was at the time a child less than 13 years of age, and
        that these events occurred at the family‟s residence on George Gaines Drive
        in Bellevue.

Lorenza Zackery v. State, No. M2013-00718-CCA-R3-PC, 2013 WL 6705995, at *1
(Tenn. Crim. App. Dec. 19, 2013), perm. app. denied (Tenn. May 14, 2014) (alterations
and ellipses in original). According to the State‟s response to the Petition, the Petitioner
did not file any post-trial motions.

                                   Post-Conviction Proceedings

       The Petitioner filed a petition for post-conviction relief alleging, among other
things, ineffective assistance of counsel which resulted in an involuntary and unknowing
guilty plea. Id. At the Petitioner‟s post-conviction hearing, both the Petitioner and trial
counsel testified about the victim‟s age at the time of the offenses.

        2
         The Petitioner requested that District Attorney General Glenn Funk recuse himself from the case
because General Funk had previously represented the Petitioner.
                                                 -2-
        The Petitioner maintained that all sexual activity with the victim was consensual,
and he testified that he did not want to plead guilty to an offense he did not commit. Id.
at *2. The Petitioner acknowledged that trial counsel spoke with the victim and that the
victim told trial counsel that no sexual activity occurred until after her thirteenth birthday.
Id. The Petitioner also admitted that he had written a letter to his wife stating that he
wanted the victim to change statements she had previously made and say that the sexual
activity only occurred in 2006. Id. at *3. The Petitioner had not informed trial counsel
about that letter, and at the time the Petitioner pleaded guilty, that letter was in the State‟s
possession. Id. at *3.

       Trial counsel testified that, as the case unfolded, the Petitioner‟s story
“significantly changed.” Id. Initially, the Petitioner told trial counsel that there had been
“lots of sex” with the victim after she turned thirteen. Id. However, around the same
time that trial counsel explained the different sentencing ranges for rape by an authority
figure and statutory rape by an authority figure, the Petitioner changed his story to say
that he only had sex with the victim once after she turned fifteen. Id. Trial counsel
recalled that “the [P]etitioner was adamant about proceeding to trial on the theory that he
had only had sex with the victim one time.” Id. Trial counsel stated that the victim
allowed him to take a recorded statement in which she recanted her assertion that any sex
had occurred prior to her thirteenth birthday. Id. The victim also passed a polygraph test
in which she said there was no sexual activity prior to her turning thirteen. Id. Trial
counsel said he hoped to impeach the victim with these statements, but trial counsel also
acknowledged that:

       [T]here was overwhelming proof of guilt on the [P]etitioner‟s part,
       including a video he had made of himself and the victim having sex, an
       aborted pregnancy by the victim, and a second pregnancy carried to term
       and delivered when the victim was fifteen years old. Additionally, the
       [P]etitioner had made statements to others that he had been having sex with
       the victim since she was „little,‟ and he had made tape-recorded admissions
       to his wife and the victim.

Id. Trial counsel was certain that the Petitioner would have been convicted if he elected
to proceed to trial. Id.

       The post-conviction court denied relief and found that the Petitioner entered his
plea voluntarily and knowingly and that he had failed to prove ineffective assistance of
counsel. Id. at *7. This court affirmed that decision on appeal. Id. at *8.




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                                   Coram Nobis Proceedings

        On February 19, 2015, the Petitioner filed the instant Petition for Writ of Error
Coram Nobis claiming that he had newly discovered evidence in the form of the victim‟s
testimony during an October 29, 2009, juvenile court hearing. The Petitioner claimed
that the victim testified in that hearing that she did not have any sexual contact with the
Petitioner until after her fifteenth birthday. A record of the juvenile court hearing was not
included with the Petition. Instead, the Petitioner attached his own affidavit which stated
the victim testified that she was fifteen years old when she started having sex with the
Petitioner. Additionally, the Petitioner admitted in the affidavit that he attended and
testified at the same juvenile court hearing. Documents attached to the Petitioner‟s brief
on appeal indicate that, in 2014, the Petitioner tried to obtain copies of the transcripts of
that juvenile court hearing, but the records were destroyed in the May 2010 Nashville
flood.3

        In the Petition, the Petitioner argued that (1) due process required that the statute
of limitations for error coram nobis claims be tolled; (2) the newly discovered evidence
demonstrates the Petitioner‟s factual innocence with regard to his rape of a child
convictions; and (3) failure to turn over the evidence to the Petitioner constituted a
violation of Brady v. Maryland, 373 U.S. 83 (1963). In its response, the State argued that
(1) due process did not require tolling of the statute of limitations because the Petitioner
knew about the victim‟s testimony and did not present it at the post-conviction hearing;
and (2) the evidence was not “newly discovered” because the Petitioner was present at
the juvenile hearing. The coram nobis court denied relief without a hearing. In its
written order, the coram nobis court noted that “these issues have previously been
discussed in the post-conviction proceedings and on appeal.” Additionally, the coram
nobis court found that due process did not require tolling the statute of limitations and
that the evidence was not newly discovered. This timely appeal followed.

                                            II. Analysis

                                       Coram Nobis Claims

       A writ of error coram nobis is an “extraordinary procedural remedy,” filling only a
“slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn.
1999) (citation omitted). Tennessee Code Annotated section 40-26-105(b) provides that
coram nobis relief is available in criminal cases as follows:



       3
         We note that the documents attached to the Petitioner‟s brief were not presented to the coram
nobis court.
                                                -4-
        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.

Our supreme court has held that the writ of error coram nobis is available to challenge a
guilty plea. Wlodarz v. State, 361 S.W.3d 490, 504 (Tenn. 2012).4

        Unlike the grounds for reopening a post-conviction petition, the grounds for
seeking a petition for writ of error coram nobis are not limited to specific categories. See
Harris v. State, 102 S.W.3d 587, 592 (Tenn. 2003). “Coram nobis claims may be based
upon any „newly discovered evidence relating to matters litigated at the trial‟ so long as
the petitioner establishes that he or she was „without fault‟ in failing to present the
evidence at the proper time.” Id. at 592-93. Coram nobis claims are “singularly fact-
intensive,” are not easily resolved on the face of the petition, and often require a hearing.
Id. at 593.

        As our supreme court has stated,

         [I]n a coram nobis proceeding, the [coram nobis] 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 [coram nobis] 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) (emphasis in original). In
determining whether the new information may have led to a different result, the question
before the coram nobis court is “whether a reasonable basis exists for concluding that had
the evidence been presented at trial, the results of the proceedings might have been
different.” Id. (citing State v. Roberto Vasques, No. M2004-00166-CCA-R3-CD, 2005
        4
          We note that the Tennessee Supreme Court has recently indicated that it will review the issue of
whether coram nobis relief should be available to challenge guilty pleas. See Order, Clark Derrick
Frazier v. State, No. 2014-02374-SC-R11-ECN (filed Oct. 15, 2015) (“In addition to the issue raised in
the application, the parties are directed to address whether the Court should reconsider its opinion in
Wlodarz v. State, 361 S.W.3d 490 (Tenn. 2012)).
                                                  -5-
WL 2477530, at *13 (Tenn. Crim. App. Oct. 7, 2005)). The decision to grant or deny
coram nobis relief rests within the sound discretion of the coram nobis court. Vasques,
221 S.W.3d at 527-28.

        Petitions for writ of error coram nobis are subject to a one-year statute of
limitations. Tenn. Code Ann. § 27-7-103 (2014); Harris v. State, 301 S.W.3d 141, 144
(Tenn. 2010). “The statute of limitations is computed from the date the judgment of the
trial court becomes final, either thirty days after its entry in the trial court if no post-trial
motions are filed or upon entry of an order disposing of a timely filed, post-trial motion.”
Harris, 301 S.W.3d at 144 (citing Mixon, 983 S.W.2d at 670). Calculating the statute of
limitations in this manner is consistent with the “longstanding rule that persons seeking
relief under the writ must exercise due diligence in presenting the claim.” Harris, 301
S.W.3d at 144; Mixon, 983 S.W.2d at 670. The State bears the burden of raising the
statute of limitations as an affirmative defense. Harris, 301 S.W.3d at 144.

       In certain circumstances, due process considerations may require tolling the statute
of limitations. Workman v. State, 41 S.W.3d 100, 101 (Tenn. 2001). To determine
whether due process requires tolling, we must balance the State‟s interest in preventing
“stale and groundless” claims against the petitioner‟s interest in having a hearing to
present newly discovered evidence which may have led the jury to a different verdict if it
had been presented at trial. Id. at 103. To balance these interests, courts should use a
three-step analysis:

       (1) determine when the limitations period would normally have begun to
       run; (2) determine whether the ground for relief actually arose after the
       limitations period would normally have commenced; and (3) if the grounds
       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.

Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995); see also Harris, 301 S.W.3d at 145.
Whether a claim is time-barred is a question of law, which we review de novo. Harris,
301 S.W.3d at 144 (citing Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn.
2007)).

                                    a. Due Process Tolling

       The Petitioner first claims that due process requires that the statute of limitations
be tolled. The Petitioner pleaded guilty on January 24, 2011, and judgments of
conviction were entered on the same day. The record indicates that no post-trial motions
were filed. Accordingly, the judgment became final on February 23, 2011, and the

                                              -6-
statute of limitations expired on February 23, 2012. The Petitioner filed the Petition on
February 19, 2015, well outside the one-year statute of limitations.

        It is clear that the “newly discovered evidence” in this case did not “actually
[arise] after the limitations period would normally have commenced.” See Sands, 903
S.W.2d at 301. The juvenile court hearing in question was conducted on October 29,
2009. As indicated in the Petitioner‟s affidavit, he was present and testified at that
hearing. Accordingly, the Petitioner knew of the victim‟s juvenile hearing testimony
before he pleaded guilty and certainly before the statute of limitations period would
normally have commenced. Therefore, the grounds for the Petition are not “later
arising,” and due process does not require tolling the statute of limitations. See id. The
Petition is time-barred.

                                  b. Merits of the Petition

        Additionally, the coram nobis court did not abuse its discretion when it found that
the evidence was not “newly discovered” and denied relief without a hearing. As noted
above, the Petitioner clearly knew about the juvenile court testimony before he entered
his guilty plea. As such, the evidence is not “newly discovered.” Moreover, the
Petitioner presented evidence to challenge the victim‟s age at the time of the offense
during the post-conviction proceeding, but he failed to present evidence of the victim‟s
juvenile court testimony at that time. Because the Petitioner knew about the victim‟s
juvenile court testimony at the time of the post-conviction hearing, he was not “„without
fault‟ in failing to present the evidence at the proper time.” See Harris, 102 S.W.3d at
592-93. Accordingly, the coram nobis court did not abuse its discretion when it found
that the evidence was not newly discovered without holding an evidentiary hearing.

                                       Brady Claim

       The Petitioner also contends that the State violated Brady when it failed to provide
the Petitioner with a copy of the record from the October 29, 2009 juvenile hearing. In
Brady, the United States Supreme Court held that “suppression by the prosecution of
evidence favorable to an accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” Brady, 373 U.S. at 87. Such evidence includes “evidence deemed to be
exculpatory in nature and evidence that could be used to impeach the state‟s witnesses.”
Johnson v. State, 38 S.W.3d 52, 55-56 (Tenn. 2001). In order to prove a due process
violation,

       (1) [t]he defendant must have requested the information (unless the
       evidence is obviously exculpatory, in which case the State is bound to
       release the information whether requested or not); (2) [t]he State must have
                                            -7-
      suppressed the information; (3) [t]he information must have been favorable
      to the accused; and (4) [t]he information must have been material.

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). However, “[t]he prosecution is not
required to disclose information that the accused already possesses or is able to obtain.”
Johnson, 38 S.W.3d at 56 (quoting State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim.
App. 1992)). The defendant must prove a Brady violation by preponderance of the
evidence. Edgin, 902 S.W.2d at 389.

       Here, the Petitioner was clearly aware of the victim‟s juvenile court hearing
testimony prior to his pleading guilty. The Petitioner could have requested a copy of the
juvenile court hearing testimony any time prior to the record‟s alleged destruction in the
flood of May 2010, but he chose not to do so. Further, the State did not suppress the
information because the Petitioner was at the hearing and heard the victim‟s testimony.
The State was not required to give the Petitioner material he already possessed or could
have obtained himself. See Johnson, 38 S.W.3d at 56. Accordingly, the Petitioner has
failed to show that the State violated Brady when it did not give him a copy of the
juvenile court hearing record.

                                    III. Conclusion

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


                                                _________________________________
                                                ROBERT L. HOLLOWAY, JR., JUDGE




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