        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 2, 2010

               HOWARD J. ATKINS v. STATE OF TENNESSEE

               Direct Appeal from the Circuit Court for Tipton County
                      No. 3956    Joseph H. Walker, III, Judge


               No. W2010-00092-CCA-R3-CO - Filed October 26, 2010


The petitioner, Howard J. Atkins, appeals the summary dismissal of his petition for writ of
error coram nobis. On appeal, he argues that the trial court abused its discretion in
determining that there was no newly discovered evidence and that his petition was untimely
pursuant to the statute of limitations and in dismissing his petition without an evidentiary
hearing. After careful review, we affirm the dismissal of the petition.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the court, in which D AVID H. W ELLES
and C AMILLE R. M CM ULLEN, JJ., joined.

Howard J. Atkins, Tiptonville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; D.
Michael Dunavant, District Attorney General; and James W. Freeland, Jr., Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       On November 29, 2000, at the age of sixteen, the petitioner was convicted of the
premeditated first degree murder of his stepfather. The facts of this case were summarized
by this court on direct appeal. See State v. Howard Jefferson Atkins, No. W2001-02427-
CCA-R3-CD, 2003 Tenn. Crim. App. LEXIS 456, at **2-6 (Tenn. Crim. App. May 16,
2003). The petitioner’s mother was involved in an allegedly abusive relationship with the
victim. The petitioner confronted the victim to ask him to leave for a few days after the
petitioner’s mother told him she planned to divorce the victim. Their encounter ended with
the victim’s death when the petitioner smashed the victim’s skull using a baseball bat he
brought to the confrontation. The petitioner was sentenced to life with the possibility of
parole.

        The petitioner filed his petition for writ of error coram nobis on November 10, 2009.
The court filed a written order denying the petition on November 24, 2009. The petitioner
initiated this appeal on December 21, 2009.

                                              Analysis

        In the petitioner’s petition for writ of error coram nobis, he asserted that he had
obtained newly discovered evidence in the form of a psychiatric report that described his
mental illness. He argued that there was a reasonable probability that the outcome of the trial
would have been significantly different if the report had been made available for the trial
court’s consideration. He contends that he would have either been committed to a medical
facility or reduced his exposure to a conviction of first degree (premeditated) murder based
on a reduced mental culpability.

       Trial courts may grant a criminal petitioner a new trial following a judgment of
conviction under limited circumstances through the extraordinary remedy offered by a writ
of error coram nobis. T.C.A. § 40-26-105; State v. Mixon, 983 S.W.2d 661, 666 (Tenn.
1999). A writ of error coram nobis may be granted where the petitioner establishes the
existence of newly discovered evidence relating to matters litigated at trial if the petitioner
shows he was without fault in failing to present the evidence at the proper time, and if the
judge determines the evidence may have resulted in a different judgment had it been
presented to the jury. T. C. A. § 40-26-105; Mixon, 983 S.W.2d at 668. The “‘purpose of
this remedy is to bring to the attention of the court some fact unknown to the court, which
if known would have resulted in a 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
(1966)). The proceeding is confined to errors outside the record and to matters which were
not and could not have been litigated at trial, the motion for new trial, appeal, or upon post-
conviction. State v. Vasques, 221 S.W.3d 514, 519-520 (Tenn. 2007).

       The decision to grant or deny a petition for writ of error coram nobis based on newly
discovered evidence lies within the sound discretion of the trial court pursuant to statute.
T.C.A. § 40-26-105. Further, the petition must be dismissed as untimely if it is filed more
than one year from the date on which the judgment became final. Id.; see also T.C.A. § 27-
7-103; Mixon, 983 S.W.2d at 670. The statute of limitations applicable to writ of error coram
nobis is an affirmative defense which must be specifically pled by the State or it is deemed
waived. Harris v. State, 102 S.W.3d 587, 593 (Tenn. 2003).

          The record reflects that the trial court determined that the petitioner failed to present

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any newly-discovered evidence and further determined that the petition was barred by the
statute of limitations. The court stated that the evidence the petitioner sought to introduce
as newly discovered evidence was a psychiatric report. The court concluded that the juvenile
court had previously determined, at the transfer hearing, that the petitioner was neither
committable to an institution nor mentally ill. The report which the petitioner refers was
dated October 9, 2000, and his trial was on November 29, 2000. The court found that the
report was available to the petitioner at the time of trial and is, therefore, not newly
discovered. The court further found that the claim was barred by the one-year statute of
limitation. We agree.

        The petitioner’s judgment of conviction became final in 2001. He did not file his
petition for writ of error coram nobis until November 10, 2009. Therefore, the State argues
that the petition is untimely, and we agree. There is nothing in the record to suggest that the
petitioner has been denied due process. The trial court did not abuse its discretion in
dismissing the petition for writ of error coram nobis.

                                          Conclusion

         After careful review, we affirm the dismissal of the petition for writ of error coram
nobis.




                                                    _________________________________
                                                    JOHN EVERETT WILLIAMS, JUDGE




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