                                                                                          03/15/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                        Assigned on Briefs February 14, 2018

         CHRISTOPHER L. WILLIAMS v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                  No. 2001-C-1673 Cheryl A. Blackburn, Judge
                     ___________________________________

                           No. M2017-01854-CCA-R3-ECN
                       ___________________________________


The Petitioner, Christopher L. Williams, filed a petition for a writ of error coram nobis.
The coram nobis court summarily denied his petition on the grounds that it was untimely
filed. On appeal, the Petitioner argues that the petition was timely filed and that the
coram nobis court erred in denying relief without a hearing. After a thorough review of
the facts and applicable case law, we affirm.

 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 THOMAS T.
WOODALL, P.J., and ROBERT W. WEDEMEYER, J., joined.

Christopher L. Williams, Pikeville, Tennessee, pro se.

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


                                        OPINION

                           I. Factual and Procedural History

       In August 2002, the Petitioner was convicted of three counts of especially
aggravated kidnapping and received a total effective sentence of seventy-five years with
release eligibility after service of 100% of the sentence. State v. Christopher L. Williams,
Corey A. Adams, and Ortega Wiltz, No. M2003-00517-CCA-R3-CD, 2005 WL 639123,
at *1 (Tenn. Crim. App. Mar. 16, 2005), perm. app. denied (Tenn. Oct. 10, 2005).1 The
Petitioner’s convictions stemmed from the kidnapping of Willie Robertson, Mr.
Robertson’s four-year-old son, and Rick Harbin. Id. The Petitioner’s convictions and
sentences were affirmed by this court on direct appeal, and he did not seek further review
from the Tennessee Supreme Court.2 Id.

        In October 2006, the Petitioner filed a petition for post-conviction relief,
requesting a delayed appeal to the Tennessee Supreme Court. The post-conviction court
summarily dismissed this petition as untimely, and this court affirmed the post-conviction
court’s dismissal because the petition was untimely filed and due process did not require
tolling of the statute of limitations. Christopher L. Williams v. State, No. M2007-00386-
CCA-R3-PC, 2008 WL 544636, at *1-2 (Tenn. Crim. App. Feb. 21, 2008), perm. app.
denied (Tenn. June 23, 2008). The Petitioner filed a second petition for post-conviction
relief in 2008, which the post-conviction court summarily dismissed as previously
litigated. It appears from the record and previous cases involving the Petitioner that the
Petitioner did not appeal the dismissal of his second post-conviction petition to this court.
The Petitioner filed a third petition for post-conviction relief in 2012, which the post-
conviction court dismissed as time-barred and having been previously litigated. On
appeal, this court affirmed the summary dismissal of the Petitioner’s third post-conviction
petition as time-barred. Christopher L. Williams v. State, No. M2012-00533-CCA-R3-
PC, 2012 WL 5595007, at *3 (Tenn. Crim. App. Nov. 13, 2012), perm. app. denied
(Tenn. Mar. 5, 2013). The Tennessee Supreme Court denied further review of the
Petitioner’s third post-conviction petition.

       On February 27, 2017, the Petitioner filed a petition for a writ of error coram
nobis. The petition alleged that, on January 24, 2017, the Petitioner received his case file
from the District Attorney General’s Office and discovered a statement from “the brother
of the victim” which “described the events from the night in which the alleged crimes
were supposed to have taken place as ‘this altercation resulted from the mismanagement
of drug revenue.’” The Petitioner asserted that, “[a]t the time this statement was
originally obtained[,] the [Petitioner] had no knowledge of who this unnamed individual
was or how to locate him.” The Petitioner learned from the case file that the unnamed
witness was Mr. Brown and that Mr. Robertson “confided in” Mr. Brown after the
offenses. Mr. Brown informed law enforcement that the “altercation” between the

        1
           We note that this case was designated “not for citation” by our supreme court. However, “[a]n
opinion so designated shall not be . . . cited by any judge in any trial or appellate court decision . . . except
when . . . the opinion is relevant to a criminal, post-conviction or habeas corpus action involving the same
defendant.” Tenn. Sup. Ct. R. 4(E)(2).
        2
         Co-defendant Adams filed a Tennessee Rule of Appellate Procedure 11 application to the
Tennessee Supreme Court, which denied review.
                                                     -2-
Petitioner and Mr. Robertson was “the result of the mismanagement of drug revenue.”
The Petitioner argued that Mr. Brown’s testimony at trial would have corroborated his
version of the “altercation” between the victim and himself. The petition also stated that
“Eric Brown was a potential witness of the prosecution, but was never called on to
testify.” The Petitioner attached a document entitled State’s Supplemental Discovery
Response as an exhibit to the petition, which listed Mr. Brown as a potential witness at
trial.

       On August 14, 2017, the coram nobis court denied the Petitioner’s error coram
nobis petition as untimely. The order stated the following:

               The filing of the petition for a writ of error coram nobis [fifteen]
        years after trial, therefore, is untimely. [The] Petitioner has failed to state
        any ground for which the statute of limitations should be tolled. Moreover,
        nothing in the record implicates any due process concerns that would
        require that the statute of limitations be tolled; the evidence was not “later-
        arising” since it was available pre-trial and during the statutory limitations
        period, as further discussed below.

The coram nobis court found that “at the time of the trial the potential of Eric Brown
being called as a witness was known to the defense.” The coram nobis court noted that
the opinion affirming the Petitioner’s convictions on direct appeal mentioned Mr. Brown.
See Christopher L. Williams, 2005 WL 639123, at *2. The coram nobis court also found
that the Petitioner “admit[ed] that the information he now considers as ‘new evidence’
was included in the record and was brought to the attention of his trial counsel.” The
Petitioner timely appeals the denial of coram nobis relief.

                                            II. Analysis

      On appeal, the Petitioner asserts that the coram nobis court erred in summarily
denying his petition on the ground that it was untimely filed.3 The State argues that the
coram nobis court properly denied the petition as untimely. We agree with the State.

        The writ of error coram nobis is “an extraordinary procedural remedy,” providing
relief in only a limited number of cases. State v. Mixon, 983 S.W.2d 661, 672 (Tenn.
1999) (emphasis in original). “The purpose of this remedy ‘is to bring to the attention of
the [trial] court some fact unknown to the court, which if known would have resulted in a

        3
           The Petitioner also asserts that the coram nobis court applied an incorrect legal standard in
determining that his petition was unmeritorious. Because we resolve this case on the timeliness of his
petition, we will not address the merits of the petition.
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different judgment.’” State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995)
(quoting State ex rel. Carlson v. State, 407 S.W.2d 165, 167 (Tenn. 1966)). The decision
of whether to grant or deny a petition for writ of error coram nobis on its merits rests
within the sound discretion of the trial court. State v. Vasques, 221 S.W.3d 514, 527-28
(Tenn. 2007); Hart, 911 S.W.2d at 375. Before granting relief, the evidence must
establish, and the coram nobis court must find, “that the subsequently or newly
discovered evidence ‘may have resulted in a different judgment had it been presented at
the trial.’” Hart, 911 S.W.2d at 375 (quoting Tenn. Code Ann. § 40-26-105).

        Petitions for writ of error coram nobis are subject to a one-year statute of
limitations. Tenn. Code Ann. § 27-7-103; 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.” Mixon, 983
S.W.2d at 670; 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)).

      The State bears the burden of raising the statute of limitations as an affirmative
defense. Id. However, the State’s failure to do so will not result in a waiver “if the
                                           -4-
opposing party is given fair notice of the defense and an opportunity to rebut it. . . .”
Wilson v. State, 367 S.W.3d 229, 234 (Tenn. 2012) (quoting Sands v. State, 903 S.W.2d
297, 299 (Tenn. 1995) (internal quotation marks omitted). For instance, when a
petitioner raises the issue of statute of limitations and requests that it be tolled on due
process grounds, the State does not waive the statute of limitations defense by failing to
specifically plead it as an affirmative defense. Id.

        In this case, it appears that the coram nobis court denied the instant petition before
the State filed a response to the petition. In any event, we conclude that the Petitioner
had sufficient notice of the issue of the statute of limitations because his petition states
the following:

              The [Petitioner] argues that he was without fault in failing to present
       the newly discovered evidence at the appropriate time due to the vague
       nature of the identity of the “brother” in Officer McCullom’s statement, his
       own attorney’s lack of due diligence in pursuing the “brother’s” identity,
       and the District Attorney’s office withholding information that was
       favorable to the [Petitioner]’s defense, in violation of Brady v. Maryland,
       373 U.S. 83 (1963).

Because the Petitioner was aware that the coram nobis court could have determined that
his petition was untimely filed, we will apply the factors from Sands to determine
whether due process concerns should toll the statute of limitations in this case.

        In the case sub judice, it is unclear from the record before us whether the
Petitioner filed a motion for new trial. On direct appeal, the Petitioner only challenged
his sentence and the sufficiency of the evidence, which can be raised absent a timely
motion for new trial. See Christopher L. Williams, 2005 WL 639123, at *6. However,
the Petitioner filed a motion asking this court to accept his untimely filed notice of
appeal, which this court granted on June 9, 2003. Thus, it is apparent that the judgments
in this case became final at some point between the date of entry of the judgments,
November 20, 2002, and the initiation of the appellate process in 2003. The Petitioner
did not file his petition for a writ of error coram nobis until February 27, 2017. This
filing is clearly untimely, and we will therefore address whether the statute of limitations
should be tolled for due process concerns.

       In his petition for a writ of error coram nobis, the Petitioner stated that he
requested his case file from the Davidson County District Attorney’s Office, which he
received on January 24, 2017. He further stated that he learned of Mr. Brown’s statement
to police from documents in the case file. The petition stated that “[a]t the time this
statement was originally obtained[,] the [Petitioner] had no knowledge of [Mr. Brown] or
                                            -5-
how to locate him.” However, the Petitioner attached a document entitled State’s
Supplemental Discovery Response as an exhibit to his petition; this document states the
following: “[t]he State may call the following additional witness at trial: Eric Brown.”
The file stamp date on this document is unreadable, but the certificate of service states
that it was served on the Petitioner’s counsel on July 23, 2002. Therefore, the Petitioner
had notice that the State was considering calling Mr. Brown as a witness at trial.
Additionally, the victim, Mr. Robertson, testified at trial that, after the Petitioner and his
co-defendants kidnapped him, the Petitioner and one co-defendant forced him “to
telephone people he knew to ask for money.” Christopher L. Williams, 2005 WL
639123, at *2. Mr. Robertson eventually informed the Petitioner that his cousin, Mr.
Brown, would give him some money. Id. The Petitioner drove to Mr. Brown’s
apartment complex but did not go into Mr. Brown’s apartment “because [Mr.] Robertson
was unable to walk to [Mr.] Brown’s apartment and they did not believe that [Mr.]
Brown would give them any money.” Id. After he escaped from the Petitioner and
flagged down a police officer, Mr. Robertson called Mr. Brown and asked him to come to
the crime scene. Id. at *3. Based on the State’s Supplemental Discovery Response and
Mr. Robertson’s testimony at trial, we conclude that the Petitioner was aware of Mr.
Brown’s statement to police prior to trial, that his claim for relief did not arise after the
limitations period would normally have commenced, and that due process concerns do
not warrant tolling of the statute of limitations in this case. Therefore, we affirm the
coram nobis court’s denial of relief.

                                      III. Conclusion

       Based on the aforementioned reasons, we affirm the coram nobis court’s summary
denial of the Petitioner’s error coram nobis petition because the petition was not timely
filed and due process concerns do not warrant tolling of the statute of limitations.


                                              ____________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE




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