        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                   September 9, 2008 Session

             ERSKINE LEROY JOHNSON v. STATE OF TENNESSEE
                  Direct Appeal from the Criminal Court for Shelby County
                          No. P-29609    John P. Colton, Jr., Judge



                 No. W2007-01546-CCA-R3-CO - Filed September 30, 2009



JOHN EVERETT WILLIAM s, J., dissenting.


        I acknowledge that the majority opinion does not grant error coram nobis relief to this
defendant but merely remands the case to the trial court for the purpose of the trial court applying
the proper standard of review. I simply disagree with the majority’s conclusion; therefore, I dissent.
The State argues that the one-year statute of limitations bars proceeding with the petitioner’s claims.
The majority is unsure as to what date the statute began running under the facts of this case but has
concluded, in any event, that due process requires the tolling of the statute. I conclude that the
statute began to run thirty days after the judgment of conviction was entered on June 27, 1985. Our
supreme court has specifically held that, as to a petition for writ of error coram nobis, “[a] judgment
becomes final in the trial court thirty days after its entry if no post-motions are filed” and that “[i]f
a post-trial motion is timely filed, the judgment becomes final upon entry of an order disposing of
the post-trial motion.” State v. Mixon, 983 S.W.2d 661, 670 (Tenn. 1999) (citing Tenn. R. App. P.
4(c); State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996)). The petitioner did not file his
petition for writ of error coram nobis until April 22, 2005. Because I agree with the State that the
so-called new information either could or should have been discovered during the first trial, I
disagree with the majority that due process requires tolling the statute of limitations. Thus, I would
dismiss the petitioner’s claim as time barred.

        Nonetheless, the majority reviewed the merits of the petition and concluded that the error
coram nobis court used the wrong standard of review by requiring that the new evidence show that
it “would have changed” the verdict rather than “may have” produced a different result. While I
agree that the court at times may have misstated the standard, I conclude that none of the individual
claims should have been considered on the merits at all, as no new credible evidence was before this
court. Therefore, regardless of the standard applied by the trial court, the petition was properly
denied.

        Looking to the individual claims made by the petitioner, I cannot characterize any of his
assertions as new evidence. First is the affidavit of Dennis Williams, wherein he purports to recant
all the testimony he gave at trial. The error coram nobis court specifically found that the affidavit
was not credible or truthful. That being the case, such “new evidence” could not be considered. The
first hurdle the petitioner must get over before his petition is to be considered on the merits is to
present evidence that the error coram nobis court believes to be true. Here, the petitioner failed.
Thus, regardless of the statute of limitations or standard of review used by the error coram nobis
court, this information does not merit review.

         Next is the affidavit of Tommy Perkins, which the petitioner claims is a recantation of his
earlier testimony. However, the error coram nobis court determined it was not a recantation but
merely the same testimony stated another way. I agree with the error coram nobis court as Mr.
Perkins merely acknowledged his uncertainty about his identification, which he also acknowledged
during the trial. There being no recantation, there is no “new evidence” which requires consideration
of the merits of the petition.

        Finally, I look at the information that might be considered to show a connection between
Elizabeth Starks and Mary Joe Ford. After review, I am unclear exactly how to characterize this
information. First, I do not believe it is sufficient to show a relationship existed between the parties,
which should have been easily established if kinship in fact exists. Regardless, I am not clear as to
how showing kinship alone makes a difference. Even if the petitioner proves that the two women
were related, and knew of the relationship, his argument asks the court to accept, as “new evidence,”
that Ms. Starks would automatically lie to protect her cousin’s boyfriend based solely upon that
relationship. This argument is clearly misplaced as the information is so speculative that, in my
opinion, it does not rise to the level of evidence at all. It is merely innuendo of what Ms. Starks
might have done. I am sure that in most every case tried, after twenty years, one could find a bias
or prejudice in a witness which was not explored at trial, but I fail to see how finality could be
reached in any case if we treated this as “new evidence” for purposes of coram nobis relief.



                                                                ______________________________
                                                                JOHN EVERETT WILLIAMS, JUDGE




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