        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                January 21, 2016 Session

            HOWARD HAWK WILLIS v. STATE OF TENNESSEE

              Appeal from the Criminal Court for Washington County
                    No. 40245    Jon Kerry Blackwood, Judge


                 No. E2015-00235-CCA-R3-ECN – Filed July 7, 2016


The Petitioner, Howard Hawk Willis, appeals the Washington County Criminal Court‟s
summary dismissal of his pro se petition for writ of error coram nobis. The Petitioner
seeks relief from his two premeditated first degree murder convictions and the resulting
sentences of death, arguing (1) the coram nobis court abused its discretion in summarily
dismissing his petition without taking into account due process considerations; (2) the
coram nobis court‟s grounds for dismissal were erroneous; and (3) his pro se petition
satisfied the coram nobis pleading requirements and, to the extent that it did not, he
should be granted an evidentiary hearing given the pro se nature of the petition. Upon
review, we affirm the judgment of the coram nobis court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and ROBERT W. WEDEMEYER, JJ., joined.

Stephen Ross Johnson, Knoxville, Tennessee, for the Petitioner, Howard Hawk Willis.

Herbert H. Slatery III, Attorney General and Reporter; James E. Gaylord, Senior
Counsel; and Anthony W. Clark, District Attorney General, for the Appellee, State of
Tennessee.

                                        OPINION

       Facts and Procedural History. We have gleaned the following facts from the
record in this case, this court‟s opinion in the Petitioner‟s interlocutory appeal, and this
court‟s opinion and the record in the Petitioner‟s direct appeal. On October 11, 2002, the
Petitioner was arrested pursuant to a federal warrant for violating the conditions of his
release as to pending federal charges in New York. See State v. Howard Hawk Willis,
No. E2012-01313-CCA-R3-DD, 2015 WL 1207859, at *58 (Tenn. Crim. App. Mar. 13,
2015), direct death penalty transfer, No. E2012-01313-SC-DDT-DD (Tenn. Apr. 1,
2015). In the declaration supporting the arrest warrant, Special Assistant United States
Attorney Steven L. D‟Alessandro asserted that there was probable cause to believe that
“in and about September and October of 2002” the Petitioner committed credit card
fraud, which violated the Petitioner‟s bail conditions in his federal case. In the
declaration, D‟Alessandro requested that the Petitioner‟s bail status be terminated
immediately and that he be remanded to the custody of the United States Marshal‟s
Service pending trial. D‟Alessandro explained that he had received information from a
law enforcement officer that the Petitioner, knowingly and with the intent to defraud, had
been using credit cards belonging to Samuel Thomas, the Petitioner‟s stepfather, who was
missing and presumed dead, and that the issuing credit card companies had no records
authorizing the Petitioner‟s use of these cards.

        While in custody at the Washington County, Tennessee jail pursuant to the federal
arrest warrant, the Petitioner confessed to his ex-wife, Wilda Willis, that he had killed
Adam and Samantha Chrismer. See id. at *14. On October 23, 2002, he was charged in
state court for these crimes. See id. at *50. Before the Chrismer murder case proceeded
to trial, the Petitioner filed several suppression motions alleging that the confession and
statements he made while incarcerated at the Washington County Jail were made in
violation of the Fifth, Sixth, and Fourteenth Amendments. See id. at *40, *56-58. In his
November 13, 2009 motion, the Petitioner claimed that his confession and statements
should be suppressed because the federal arrest warrant was based on false and
misleading evidence of his credit card fraud. The trial court denied these motions. See
id. at *56-58.

        After years of delay related to multiple changes in court-appointed counsel, the
trial court held that the Petitioner had implicitly waived and forfeited his right to be
represented by counsel, ordered that the Petitioner must proceed pro se at trial, and
appointed advisory counsel. See id. at *2. The Petitioner brought an interlocutory appeal
from the court‟s order that he had waived and forfeited his right to counsel, and this court
affirmed the trial court‟s order. See State v. Willis, 301 S.W.3d 644, 645 (Tenn. Crim.
App. 2009). The Petitioner‟s case proceeded to trial in June 2010. See id. at *2.

        After hearing the proof presented at trial, the jury convicted the Petitioner of one
count of premeditated first degree murder of Adam Chrismer, one count of premeditated
first degree murder of Samantha Chrismer, and one count of first degree felony murder of
Samantha Chrismer in the perpetration of a kidnapping. See id. at *34. At the sentencing
hearing, as to the Petitioner‟s conviction for premeditated first degree murder of Adam
Chrismer, the jury found the following aggravating circumstance beyond a reasonable
doubt: the Petitioner knowingly mutilated the victim‟s body after death. See id. (citing
T.C.A. § 39-13-204(i)(13) (Supp. 2002)). As to the Petitioner‟s convictions for
                                            -2-
premeditated first degree murder and felony murder of Samantha Chrismer, the jury
found the following aggravating circumstances beyond a reasonable doubt: (1) the
murder was especially heinous, atrocious, or cruel, in that it involved torture or serious
physical abuse beyond that necessary to produce death; (2) the murder was committed for
the purpose of avoiding, interfering with, or preventing a lawful arrest or prosecution of
the Petitioner or another; (3) the Petitioner knowingly committed the murder while
having a substantial role in committing first degree murder of Adam Chrismer; and (4)
the Petitioner knowingly committed the murder while having a substantial role in
committing or attempting to commit kidnapping. See id. (citing T.C.A. § 39-13-
204(i)(5), (6), (7)). After finding that these aggravating circumstances outweighed the
mitigating circumstances beyond a reasonable doubt, the jury sentenced the Petitioner to
death for each conviction, and the trial court merged the felony murder conviction with
the premeditated first degree murder conviction regarding Samantha Chrismer. See id. at
*34-35. The Petitioner appealed, and this court affirmed the judgments. See id. at *99.
The Petitioner‟s direct appeal is currently pending review by the Tennessee Supreme
Court. See State v. Howard Hawk Willis, No. E2012-01313-CCA-R3-DD, 2015 WL
1207859 (Tenn. Crim. App. Mar. 13, 2015), direct death penalty transfer, No. E2012-
01313-SC-DDT-DD (Tenn. Apr. 1, 2015).

        On December 2, 2014, the Petitioner filed a pro se petition for writ of error coram
nobis, alleging that the following newly discovered evidence warranted coram nobis
relief:

      (1) Investigator Jimmy Smith‟s 10/7/02 interview notes of witnesses Daisy
      Bagby, John Bagby and Debbie Armes. Each of these interviews
      provide[s] information that at the time of providing the affidavit to the U.S.
      Attorney for a federal arrest warrant—Tennessee authorities had
      information from these witnesses that Sam Thomas was alive at the time
      Petitioner was alleged to have been unlawfully using Sam Thomas‟s credit
      card[s]. These interviews were not discovered until December 2013, by the
      Petitioner.

      (2)     Phone call recordings by Kelly Chancey and Marcus Caudel—that
      witnesse[s] Joy Gadd, Wilda Willis, and Brian Brown knew Sam Thomas
      was alive at the time Petitioner was using his credit cards—and that this
      activity was not unusual. These recordings were not discovered until April
      2014, by the Petitioner.

The Petitioner asserted in his petition that this newly discovered evidence may have
resulted in a different judgment because it invalidated his federal arrest warrant, thereby
requiring suppression of his confession to killing the Chrismers that he made while
                                            -3-
incarcerated at the Washington County Jail. The Petitioner claimed he was not at fault in
failing to present the newly discovered evidence at the appropriate time because he did
not learn of the statements of Daisy Bagby, John Bagby, or Debbie Armes until
December 2013 and did not learn of the recordings of Joy Gadd, Wilda Willis, and Brian
Brown until April 2014.

        An affidavit signed by the Petitioner was attached to the coram nobis petition. In
it, the Petitioner asserted that although he had requested the investigative file on the
Samuel Thomas murder case in initial discovery, the State of Tennessee did not disclose
this file until May 18, 2010, which was shortly before his trial for the Chrismer murders.
He claimed that the State‟s refusal to turn over this file for almost seven years prevented
appointed counsel from conducting a meaningful investigation or from using this
evidence in suppression motions. He also claimed that the delayed disclosure of this file
limited his ability, as a pro se litigant, to use this evidence to suppress his statements and
confession. Moreover, he asserted that the State‟s withholding of this file prevented him
from presenting exculpatory evidence at trial, stating:

              The State of Tennessee‟s withholding of the Samuel Johnson
       Thomas case file until 5/18/10 denied me the ability to conduct a thorough
       case investigation and to present exculpatory evidence to the Jury at trial
       for their consideration, i.e. a letter written by Samantha Chrismer that her
       husband Adam and her half[-]brother Daniel Foster robbed Sam Thomas
       and were setting me up for the crime; documents that connect Betty Willis
       and Adam Chrismer to Adam‟s mother[‟]s house; and documents that
       connect Adam to Betty Willis‟[s] hospital room; and documents Betty
       would set me up for any crime she could. All of this denied me the ability
       to present a meaningful defense. See Exhibit 1 with sub exhibits Attached
       Herewith.

The Petitioner also claimed that he was unable to review recorded telephone
conversations containing certain exculpatory evidence until April 2014:

               Phone conversations were recorded after March 16, 2010[,] and prior
       to trial that Kell[y] Chancey was [a] part of. The equipment was supplied
       by my investigator, Mark Caudel. These calls contained exculpatory
       evidence. I was unable to review, further investigate, nor prepare these
       calls for presentation to the Jury for their consideration at trial. [Some
       examples of exculpatory evidence] are as follows:

       a.     A call between Kell[y] Chancey and Wilda Willis Gadd. In this call
              information shared between them provide[s] proof [that] the people
                                             -4-
              with Howard Willis on 10/4/02 [at] 10:30 pm in a red jeep, were not
              Adam and Samantha Chrismer. Wilda Willis Gadd, failed to share
              this with the prosecution, nor the Jury.

       b.     In calls with Joy Gadd, although she tried to be evasive at first, she
              did admit her knowledge of the following:

              i.     That Joy saw Howard Willis with Sam Thomas‟[s] credit
                     cards [at] Wilda Willis‟[s] apartment prior to Sam‟s
                     disappearance.

              ii.    That Joy Gadd stated there was [No Doubt] Wilda Willis
                     knew Howard Willis had Sam Thomas‟[s] credit cards prior
                     to his disappearance.

              iii.   That Joy‟s son, Bri[a]n Brown, had seen Howard Willis with
                     Sam‟s credit cards prior to his disappearance.

              iv.    That Joy had additional knowledge that the people with
                     Howard Willis on 10/4/02 were not Adam and Samantha
                     Chrismer.

              v.     That Joy Gadd clearly stated Wilda Willis had told so many
                     different stories she did not believe Wilda knew the truth
                     anymore.

The Petitioner stated that “after the Sam Thomas case file was turned over [by the State]
and the phone calls recorded, [he] requested the Court provide a short continuance to
allow [him] time to complete case investigation, subpoena witnesses and prepare the case
for trial.” The trial court heard testimony from the Petitioner‟s investigator that he had
been unable to read half of the discovery and was attempting to subpoena out of state
witnesses. However, the Petitioner said that despite this testimony, the trial court denied
his continuance “and was in a rush to [go to] trial[,]” which violated his ability to present
a meaningful defense. Following his conviction and sentencing on October 21, 2010, the
trial court appointed attorney James Simmons to represent him on appeal. The Petitioner
said he gave James Simmons permission to pick up his case files and bring them to him
in prison in August 2010; however, because Simmons had not brought his file to him by
November 9, 2010, the Petitioner wrote a letter to the trial court requesting an order for
his file. This letter was forwarded to Simmons, who ignored the Petitioner‟s request.
After having some difficulty getting the physical file and a digital copy of the file into the
prison, Simmons finally obtained authorization for him to bring some of the legal files to
                                             -5-
the Petitioner on February 4, 2013. The Petitioner said that “all of [his] files were not
brought to [him] until shortly after November 20, 2013,” when the trial court granted
Simmons‟s withdrawal from his case. However, he asserted that it was not until
December 2013 that he received the investigative file from the Samuel Thomas case and
discovered that “Bradley County Captain Bill Burtt intentionally provided false
information to U.S. Attorney Steven Dallassandro [sic] to obtain an arrest warrant in
order to investigate, and illegally question [him].” Finally, the Petitioner stated that the
referenced phone conversations, which were recorded prior to trial, were not given to him
until April 2014 when newly appointed counsel sent them to him. He asserts that the late
disclosure of these recorded conversations prevented him from investigating their
contents and presenting that evidence to the jury at trial.

      The Petitioner also attached an unfiled motion, identical in substance to his
November 13, 2009 motion to suppress. This unfiled motion contained 100 exhibits that
were nearly identical to the 100 exhibits attached to the November 13, 2009 motion to
suppress.

         On January 16, 2015, the Washington County Criminal Court summarily
dismissed the pro se petition for writ of error coram nobis on the grounds that “the
Petitioner is represented by appointed counsel, Mr. James Simmons” and that “this case
is still pending in the Court of Criminal Appeals and, therefore, is not final.” On January
30, 2015, the Petitioner filed a timely appeal of the summary dismissal of his coram nobis
petition.

        On June 12, 2015, the Tennessee Supreme Court entered an order declining the
Petitioner‟s request to stay his direct appeal on the basis that his pro se petition for writ of
error coram nobis was pending review by the Tennessee Court of Criminal Appeals. See
Howard Hawk Willis, No. E2012-01313-SC-DDT-DD (June 12, 2015 order); Cf. State v.
Mixon, 983 S.W.2d 661, 672 (Tenn. 1999) (adopting a procedure that on the same day a
coram nobis petition is filed in the trial court, the petitioner should also file in the
appellate court a motion to stay appellate proceedings pending the trial court‟s decision
on the writ of error coram nobis). In denying the Petitioner‟s motion to stay the direct
appeal, the Tennessee Supreme Court noted that the coram nobis petition was untimely
and that even though this petition was filed before the Court of Criminal Appeals issued
its opinion regarding the direct appeal, no motion to stay the direct appeal had been filed
in the intermediate court.

       On June 24, 2015, this court, in response to the Petitioner‟s pro se motions seeking
a stay of his coram nobis appeal and requesting the appointment of counsel, entered an
order appointing counsel to the Petitioner for proceedings in the Court of Criminal
Appeals regarding the summary dismissal of his coram nobis petition and, after treating
                                              -6-
the Petitioner‟s motion for a stay as a motion to reset the briefing schedule, extended the
time for filing the Petitioner‟s brief. See Howard Hawk Willis, 2015 WL 1207859 (June
24, 2015 order).

      Thereafter, the Petitioner filed appellate briefs with the assistance of counsel,
arguing that the pro se petition and affidavit articulated two sources of newly discovered
evidence that might have resulted in a different judgment at trial:

        (1) Sam Thomas‟s investigative file—which contains evidence of pre-trial
        statements implicating a third-party for Chrismer deaths, and

        (2) recorded phone conversations between Kelly [Chancey] and Wilda
        Willis, in which Wilda admits that the Chrismers were not with [the
        Petitioner] the night they disappeared.

While the sources of the newly discovered evidence identified by counsel were similar to
the sources identified in the Petitioner‟s pro se petition, the newly discovered evidence
itself, namely the evidence of pre-trial statements implicating a third party and Wilda‟s
recorded conversation in which she admitted that the Chrismers were not with the
Petitioner the night they disappeared, was drastically different from the newly discovered
evidence identified in the Petitioner‟s pro se coram nobis petition.

       In these briefs, the Petitioner made several assertions based on information taken
from the affidavit attached to his petition. First, he maintained that the investigative file
from the Samuel Thomas case contained evidence implicating Betty Willis, the
Petitioner‟s mother, in the deaths of Adam1 and Samantha Chrismer because Betty had
stated she would set up the Petitioner for any crime she could. He also claimed that the
Thomas file contained proof showing that Daniel Foster, Samantha Chrismer‟s half-
brother, had robbed Samuel Thomas and framed the Petitioner for that crime. Finally, he
asserted that recorded telephone conversations between Wilda Willis, the Petitioner‟s ex-
wife and a key witness for the State at trial, and Kelly Chancey, the Petitioner‟s daughter,
showed that Wilda knew that Adam and Samantha Chrismer were not the people with the
Petitioner in the red Jeep at 10:30 p.m. on October 4, 2002, the day the Chrismers
disappeared.

                                            ANALYSIS

      The Petitioner argues that he is entitled to a new trial based upon his “newly
discovered evidence,” or at a minimum, to an evidentiary hearing on his coram nobis
        1
         To avoid repetition, we will occasionally refer to individuals by their first names. This court
means no disrespect to these individuals.
                                                  -7-
petition with the assistance of counsel. He asserts that the coram nobis court abused its
discretion in summarily dismissing his petition on procedural grounds without taking into
account due process considerations, that the procedural grounds on which the coram
nobis court relied were erroneous, and that his pro se petition satisfied the coram nobis
pleading requirements and, to the extent that it did not, this court should remand the case
for an evidentiary hearing given the pro se nature of the petition. The State responds that
the petition fails to state a claim for coram nobis relief. Because the Petitioner has failed
to show he is entitled to coram nobis relief, we affirm the summary dismissal of the
petition.

       A petition for writ of error coram nobis is available to criminal defendants based
on subsequently or newly discovered evidence. T.C.A. § 40-26-105(a), (b). Coram nobis
petitions are governed by Tennessee Code Annotated section 40-26-105(b), which
provides:

       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.

Id. § 40-26-105(b). As the statute indicates, coram nobis review is confined to errors
outside the record and to matters that have not been previously litigated. Wlodarz v.
State, 361 S.W.3d 490, 499 (Tenn. 2012) (citing T.C.A. § 40-26-105(b)). Specifically,
coram nobis relief is limited 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.” T.C.A. § 40-26-105(b); see Wlodarz,
361 S.W.3d at 510 (Koch, J., concurring in result). This court has stated that coram nobis
relief is also not available on matters that were or could have been litigated in a post-
conviction proceeding. See Wlodarz, 361 S.W.3d at 510 (Koch, J., concurring in result)
(citing George Langford v. State, No. W2006-02765-CCA-R3-PC, 2008 WL 1700228, at
*3 (Tenn. Crim. App. Apr. 7, 2008); Kenneth C. Stomm v. State, No. 03C01-9110-CR-
00342, 1992 WL 97081, at *1 (Tenn. Crim. App., at Knoxville, May 12, 1992); State v.
James D. Yarbrough, No. 01C01-9001-CC-00012, 1990 WL 109107, at *2 (Tenn. Crim.
App., at Nashville Aug. 3, 1990), perm. app. denied (Tenn. Oct. 29, 1990)).



                                              -8-
       To seek coram nobis relief, the petitioner must establish that he or she 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). A petitioner is “without fault” if he or she is able to
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).

        Moreover, “a coram nobis petition will not lie where a petitioner was previously
aware of the alleged „newly discovered evidence.‟” Wlodarz, 361 S.W.3d at 506
(citations omitted); Harris v. State, 301 S.W.3d 141, 160 (Tenn. 2010) (Koch, J.,
concurring in part and concurring in result) (To be considered newly discovered
evidence, “the evidence must have been unknown to the defendant at the time of trial.”).
“A narrow exception exists to this requirement, where „although not newly discovered
evidence, in the usual sense of the term,‟ the “availability” of the evidence „is newly
discovered.‟” Harris, 301 S.W.3d at 160-61 (Koch, J., concurring in part and concurring
in result) (citations omitted); see, e.g., Taylor v. State, 171 S.W.2d 403, 404-05 (applying
this narrow exception in a motion for new trial when one witness was in the hospital and
another witness was working outside the state on the trial date and both witnesses were
available to testify at a later trial); Misty Jane Brunelle v. State, No. 2010-00662-CCA-
R3-PC, 2011 WL 2436545, at *10 (Tenn. Crim. App. June 16, 2011) (recognizing that a
petitioner could have sought coram nobis relief when a Department of Children‟s
Services report that was known to the petitioner but sealed at the time of trial later
became available). Generally, “subsequently or newly discovered evidence which is
simply cumulative to other evidence in the record or serves no other purpose than to
contradict or impeach the evidence adduced during the course of the trial will not justify
the granting of a petition for the writ of error coram nobis when the evidence, if
introduced, would not have resulted in a different judgment.” Hart, 911 S.W.2d 371, 375
(Tenn. Crim. App. 1995) (internal citations omitted); see Vasques, 221 S.W.3d at 528
(concluding that impeachment evidence may constitute newly discovered evidence for
the purpose of coram nobis relief when it has an effect on the outcome of the
proceedings).

        The relief sought through a writ of error coram nobis “„is the setting aside of the
judgment of conviction and the granting of a new trial.‟” Payne v. State, -- S.W.3d -- ,
No. W2013-01248-SC-R11-PD, 2016 WL 1394199, at *5 (Tenn. Apr. 7, 2016) (quoting
Harris, 301 S.W.3d at 150 n.8 (Koch, J., concurring in part and concurring in result)
(citing T.C.A. § 40-26-105(c))). “[A] writ of error coram nobis is the only potential
remedy for those rare instances in which a petitioner may otherwise be wrongfully
convicted of a crime.” Wlodarz, 361 S.W.3d at 504. The goal of coram nobis relief “is a
reliable determination of the petitioner‟s criminal liability for the offense with which he
was charged based on all of the evidence that should have been made available to the
fact-finder at the initial trial.” Payne, 2016 WL 1394199, at *5 (emphasis added).
                                             -9-
       The decision to grant or deny a petition for the writ of error coram nobis rests
within the sound discretion of the trial court, and this court‟s review of this issue is
limited to determining whether the trial court abused its discretion. State v. Hall, 461
S.W.3d 469, 496 (Tenn. 2015) (citing Harris, 301 S.W.3d at 144). “A court abuses its
discretion when it applies an incorrect legal standard or its decision is illogical or
unreasonable, is based on a clearly erroneous assessment of the evidence, or utilizes
reasoning that results in an injustice to the complaining party.” Wilson v. State, 367
S.W.3d 229, 235 (Tenn. 2012) (citing Wright ex rel. Wright v. Wright, 337 S.W.3d 166,
176 (Tenn. 2011)).

       A writ of error coram nobis is an “extraordinary procedural remedy” that “fills
only a slight gap into which few cases fall.” Mixon, 983 S.W.2d at 672 (citing Penn v.
State, 670 S.W.2d 426, 428 (Ark. 1984)); State v. Workman, 111 S.W.3d 10, 18 (Tenn.
Crim. App. 2002). It is known more for its denial than its approval. Harris, 102 S.W.3d
at 592 n.7 (quoting Mixon, 983 S.W.2d at 666). The purpose of a writ of error coram
nobis “„is to bring to the attention of the [trial] court some fact unknown to the court,
which if known would have resulted in a different judgment.‟” Hart, 911 S.W.2d at 374
(quoting State ex rel. Carlson v. State, 407 S.W.2d 165, 167 (Tenn. 1996)); see Wlodarz,
361 S.W.3d at 506. Moreover, “[t]he evil that the coram nobis statute is aimed at
remedying is a conviction based on materially incomplete or inaccurate information.”
Payne, 2016 WL 1394199, at *6.

        In order to evaluate the Petitioner‟s claims for coram nobis relief, this court must
determine (1) whether he has asserted these claims in a timely manner, and if not, (2)
whether he has shown he is entitled to equitable tolling of the statute of limitations, and
(3) if the petition is timely or the petitioner is entitled to equitable tolling, whether the
petition is substantively adequate. See Harris, 301 S.W.3d at 155 (Koch, J., concurring in
part and concurring in result).

        I. Erroneous Procedural Grounds. Initially, we will address the Petitioner‟s
claim that the coram nobis court summarily dismissed his petition on erroneous grounds
without holding an evidentiary hearing or fully evaluating his claims. He asserts that the
court‟s incorrect assessment of the record and the court‟s mistaken interpretation of the
law constitute an abuse of discretion requiring reversal. See Koon v. U.S., 518 U.S. 81,
100 (1996) (stating that a district court abuses its discretion when it makes an error of
law); Teresa Deion Smith Harris v. State, No. W2014-01020-CCA-R3-ECN, 2015 WL
226091, at *1 (Tenn. Crim. App. Jan. 16, 2015) (“A trial court abuses its discretion when
it applies incorrect legal standards, reaches an illogical conclusion, bases its decision on a
clearly erroneous assessment of the evidence, or employs reasoning that causes an
injustice to the complaining party.”). The Petitioner also asserts that because he was
sentenced to death, “a hearing is warranted to determine the extent to which the newly
                                            -10-
discovered evidence may have affected the judgment at trial.”

       The two grounds relied on by the court in summarily dismissing the petition were
that the Petitioner was represented by counsel at the time he filed the pro se petition and
that the Petitioner‟s case was not final. While the State concedes that the trial court‟s
grounds for dismissal were erroneous, it nevertheless argues that the court‟s summary
dismissal of the petition should be affirmed because the petition fails to state a claim for
coram nobis relief. We conclude that although the court‟s grounds for summary
dismissal were erroneous, the Petitioner is not entitled to relief.

        The Petitioner asserts that the court‟s first ground, that he was represented by
counsel at the time he filed his pro se coram nobis petition, was based on “a clearly
erroneous assessment of the record because James Simmons never represented [him] in
any legal action other than the direct appeal.” He claims that because court appointed
counsel must represent a defendant only through the initial appellate review and because
“a writ of error coram nobis is a new action filed to vacate a trial court‟s final judgment,
not review that judgment,” a defendant, who is represented by court appointed counsel in
direct appeal proceedings, may file a pro se petition for writ of error coram nobis without
violating the rule prohibiting a represented defendant from filing a pro se motion.” See
T.C.A. § 40-14-203 (“Appointed counsel is required to represent the defendant only
through the initial appellate review and is not required to pursue the matter through a
second tier discretionary appeal by applying to the supreme court for writ of certiorari.”);
Moore v. Moore, 431 S.W.2d 754, 755 (Tenn. 1968) (“A suit for writ of error coram
nobis is a new action to vacate and annul a judgment” and “is not an action to review a
judgment[.]”); Mixon, 983 S.W.2d at 663 (“[I]n most instances, to be timely, a petition
for writ of error coram nobis generally will be filed during the pendency of an appeal as
of right.”). He adds that the Washington County Criminal Court entered an order
terminating Simmons‟s obligation to represent him on direct appeal on November 20,
2013, and that he did not filed his pro se coram nobis petition until December 2, 2014,
more than one year later. We note that the right to counsel and the right to self-
representation are alternatives, meaning that a defendant may assert one or the other but
not both. State v. Hester, 324 S.W.3d 1, 30 (Tenn. 2010) (citing Lovin v. State, 286
S.W.3d 275, 284 (Tenn. 2009); State v. Small, 988 S.W.2d 671, 673 (Tenn. 2010)); see
State v. Burkhart, 541 S.W.2d 365, 371 (Tenn. 1976). However, because counsel in this
case was appointed to represent the Petitioner in his direct appeal, we conclude that the
Petitioner was not precluded from filing his pro se petition for writ of error coram nobis.
Therefore, we agree with the Petitioner that this was an erroneous ground for summary
dismissal.

      The Petitioner also asserts that the court‟s second ground, that his petition was
premature because the direct appeal was pending review before the Tennessee Court of
                                            -11-
Criminal Appeals, was “rooted in an erroneous assessment of Tennessee law.” He notes
that a final judgment in his case was entered on June 5, 2012, when the trial court entered
its order denying his motion for new trial, and that in light of this final judgment, the
coram nobis court made an error of law requiring reversal. See Koon, 518 U.S. at 100.
As to this second ground, we recognize that a coram nobis petition must be filed within
one year of the trial court issuing a final judgment on the merits of the case. Mixon, 983
S.W.2d at 663. A judgment is final for coram nobis purposes “thirty days after 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 663; see Harris, 301
S.W.3d at 144. Moreover, a pending direct appeal does not alter the finality of a trial
court judgment because “a timely petition for writ of coram nobis will almost always be
filed while an appeal is pending.” Mixon, 983 S.W.2d at 671. Because the coram nobis
petition in this case was not premature, we conclude that this, too, was an erroneous
ground for summary dismissal.

        Although the coram nobis court‟s grounds for summary dismissal were erroneous,
we nevertheless conclude that the Petitioner is not entitled to relief. As we will explain,
the petition was untimely, due process does not require tolling of the statute of
limitations, and the petition in this case is substantively deficient. For these reasons, we
affirm the coram nobis court‟s judgment.

       II. Statute of Limitations. We must first address whether the Petitioner filed his
coram nobis petition more than one year after the judgments of conviction became final.
See T.C.A. § 27-7-103; Wilson, 367 S.W.3d at 233; Mixon, 983 S.W.2d at 668. Whether
a claim is barred by an applicable statute of limitations is a question of law, which this
court reviews 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. Wilson, 367 S.W.3d at 234 (citing Harris, 301
S.W.3d at 144).

        In this case, the Petitioner‟s judgments became final on June 5, 2012, the date the
order denying his motion for new trial was entered. Consequently, the statute of
limitations would have expired on June 5, 2013, more than a year and a half before the
Petitioner filed his pro se petition for writ of error coram nobis.

        Although the petition in this case was filed well beyond the one-year statute of
limitations for coram nobis relief, it does not appear that the affirmative defense of the
statute of limitations was raised by the State. The record shows no filings in this regard,
and the order summarily dismissing the petition shows that the coram nobis court did not
deny the Petitioner relief based on the petition‟s untimeliness. The coram nobis petition
was filed on December 2, 2014, and the court entered its order summarily dismissing the
                                            -12-
petition on January 16, 2015, just forty-five days later. Nevertheless, the Petitioner raises
the issue of due process tolling in his pro se petition when he claims he was not aware of
the interview notes until December 2013 and the recorded phone conversations until
April 2014, well after the expiration of the statute of limitations. The Petitioner also
raises the issue of due process tolling in his appellate brief, which was filed with the
assistance of counsel. Surprisingly, the State does not argue in its brief that the petition
was untimely or that the statute of limitations should not be tolled; instead, it merely
contends that the petition failed to state a claim for coram nobis relief.2 While the State
has the burden of raising the statute of limitations as an affirmative defense, the State‟s
failure to do so does not inevitably mean that this issue is waived. See Wilson, 367
S.W.3d at 234; see also Harris, 301 S.W.3d at 144-45 (holding that the State‟s failure to
raise the untimeliness of the coram nobis petition as an issue on appeal does not preclude
this court from determining whether the petition is barred by the statute of limitations);
Cf. Harris, 301 S.W.3d at 153 & n.17 (Koch, J., concurring in part and concurring in
result) (stating that the statute of limitations issue should no longer be characterized as an
affirmative defense because compliance with the timely filing requirement is an essential
element of a coram nobis claim). Furthermore,

        Failure to raise the statute as an affirmative defense does not result in
        waiver “if the opposing party is given fair notice of the defense and an
        opportunity to rebut it” because “the purpose of the specific pleading
        requirement is to prevent a party from raising a defense at the last possible
        moment and thereby prejudicing the opposing party‟s opportunity to rebut
        the defense.”

Wilson, 367 S.W.3d at 234 (quoting Sands v. State, 903 S.W.2d 297, 299 (Tenn. 1995)).
Because the Petitioner raised the issue of the statute of limitations in his pro se petition
and his appellate briefs, he cannot argue that he was prejudiced by failing to receive fair
notice of this defense or by not having an opportunity to rebut this defense. See Wilson,
367 S.W.3d at 234.

       III. Due Process Tolling. Next, we determine whether the Petitioner has shown
he is entitled to equitable tolling of the statute of limitations. Although the petition in this
case was untimely, due process considerations may toll the statute of limitations.
Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001). Due process requires the tolling of
a statute of limitations period when a petitioner would otherwise be denied “„an
opportunity for the presentation of claims at a meaningful time and in a meaningful
manner.‟” Id. at 102 (quoting Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992)); see
Wlodarz, 361 S.W.3d at 499. “[D]ue process considerations . . . apply with even greater
        2
         We feel that the exceptionally abbreviated analysis utilized by the State in this capital case is
inadequate in light of Wilson, 367 S.W.3d 229 (Tenn. 2012), and Harris, 301 S.W.3d 141 (Tenn. 2010).
                                                  -13-
force when the statute of limitations is being applied in a capital case to bar a claim that
newly discovered evidence may prove that the defendant is actually innocent of the
capital crime of which he was convicted.” Workman, 41 S.W.3d at 101 (footnote
omitted); see Harris, 301 S.W.3d at 145. We recognize that due process considerations
are of particular importance in the Petitioner‟s case because he received two sentences of
death.

       In determining whether due process requires tolling of the statute of limitations,
this court must weigh the Petitioner‟s interest in obtaining a hearing on the grounds of
newly discovered evidence against the State‟s interest in preventing stale and groundless
claims. Harris, 301 S.W.3d at 145 (citing Workman, 41 S.W.3d at 103). To balance these
interests, courts should use the following 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 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.

Wilson, 367 S.W.3d at 234 (quoting Sands, 903 S.W.2d at 301).

       Applying this analysis, we have already determined that the statute of limitations
period would normally have begun to run on June 5, 2012. We must next determine
whether the Petitioner‟s grounds for relief actually arose after the limitations period
normally would have commenced. In the pro se petition, the Petitioner identifies two
pieces of “newly discovered evidence” entitling him to relief: (1) notes from interviews
with Daisy Bagby, John Bagby, and Debbie Armes showing that, at the time the affidavit
was presented in order to obtain the federal arrest warrant, Sam Thomas was alive when
the Petitioner was alleged to have been unlawfully using Thomas‟s credit cards; and (2)
phone call recordings showing that witnesses Joy Gadd, Wilda Willis, and Brian Brown
knew Sam Thomas was alive at the time the Petitioner was using his credit cards and that
the Petitioner‟s use of Thomas‟s credit cards was not unusual.

      Regarding the interview notes, the Petitioner claims he did not become aware of
them until he received the investigatory file in the Sam Thomas murder case in December
2013. However, in his affidavit attached to the petition, he acknowledges that the State
provided the investigative files in the Thomas murder case to him on May 18, 2010, prior
                                            -14-
to his trial. In fact, the Petitioner states that he requested a continuance of his trial based
on the State‟s disclosure of the Thomas file, which the trial court denied. Because the
Thomas file was originally provided to the Petitioner on May 18, 2010, and the statute of
limitations period commenced on June 5, 2012, we conclude that this ground for relief
did not arise after the commencement of the limitations period. Given that this first
ground was not “later-arising,” a strict application of the limitations period would not
effectively deny the Petitioner a reasonable opportunity to present this claim. Therefore,
we conclude that the Petitioner‟s claim based on the interview notes is time-barred
because it was filed after the expiration of the statute of limitations and because due
process considerations do not require equitable tolling.

       As for the recorded phone calls, the Petitioner claims that he did not become
aware of them until April 2014, when newly appointed counsel brought them to him in a
form he could review. However, he acknowledges in his affidavit that his investigator
assisted in recording these phone calls after March 16, 2010, and prior to trial, which
means that the recordings were in the defense‟s possession prior to trial. Moreover, the
record from the Petitioner‟s direct appeal shows that the Petitioner presented this “newly
discovered evidence” for the first time in his November 13, 2009 motion to suppress all
statements made to law enforcement and their agents.

        In the November 13, 2009 motion, the Petitioner claimed that Captain Bill Burtt of
the Bradley County Sheriff‟s Department “intentionally provid[ed] information
[regarding the Petitioner‟s illegal use of Thomas‟s credit cards] that was known to him to
be false and misleading to a U.S. Attorney to obtain the bond revocation.” The Petitioner
maintained that Samuel Thomas, his stepfather, gave him the credit cards and $4600.00 in
cash some time prior to September 5, 2002, the last day anyone had contact with Thomas.
The Petitioner asserted that he had told family members and others that Thomas had
given him the credit cards and cash prior to Thomas‟s disappearance. The Petitioner also
asserted that two recorded phone calls showed that Wilda Willis and Joy Gadd knew that
Thomas had given the credit cards to him before Thomas disappeared on September 5,
2002. He claimed that Wilda Willis admitted the Petitioner‟s lawful possession of the
credit cards to “many family members and others” and made such admissions during
“recorded phone conversations known to both Bradley County and Washington County
officials.” He also stated that during an interview on October 8, 2002, the Petitioner told
Detective Efaw and Captain Burtt that Wilda Willis, Kelly Chancey, Joy Gadd, Brian
Brown, and Adam and Samantha Chrismer were present when he used Thomas‟s credit
cards and that he stopped using the credit cards when Thomas was reported missing.

       Based on the information included in the November 13, 2009 motion to suppress,
the Petitioner was well aware at the time of his trial that Joy Gadd, Wilda Willis, and
Brian Brown knew that he lawfully used Thomas‟s credit cards. At the time that the
                                             -15-
coram nobis court summarily dismissed the Petitioner‟s coram nobis petition, it was well-
aware that the Petitioner had tried to use this same evidence in his November 13, 2009
motion to suppress. Recognizing that the Petitioner was aware of these witnesses when
he filed his November 13, 2009 motion to suppress and that the statute of limitations
period commenced on June 5, 2012, we conclude that the second ground for relief did not
arise after the commencement of the limitations period. Given that this second ground
was not “later-arising,” a strict application of the limitations period would not effectively
deny the Petitioner a reasonable opportunity to present this second claim. Accordingly,
we conclude that this second claim is also time-barred because it was filed after the
expiration of the statute of limitations and because due process considerations do not
require equitable tolling.

       Because we have concluded that due process considerations did not toll the statute
of limitations for either of the grounds raised by the Petitioner in his pro se petition, we
affirm the summary dismissal of coram nobis relief in this case. However, we recognize
the importance of thoroughly evaluating the Petitioner‟s claims because this is a capital
case. Therefore, we will also consider whether the petition in this case was substantively
adequate.

        IV. Substantive Adequacy of the Petition. The Petitioner contends that his pro
se petition satisfies the coram nobis pleading requirements, and to the extent that it does
not, he urges this court to hold his petition to less stringent standards because it was filed
pro se. As we have noted, the State contends that the Petitioner fails to state a claim for
coram nobis relief. We conclude that the petition is substantively deficient.

      The Tennessee Supreme Court has provided a procedure for trial courts to follow
when considering a coram nobis petition:

       [T]he trial 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 trial 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.

Vasques, 221 S.W.3d at 527. In determining whether the new evidence may have led to a
different result, the appropriate analysis is “„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. (quoting State v. Roberto Vasques, No. M2004-00166-
CCA-R3-CD, 2005 WL 2477530, at *13 (Tenn. Crim. App. Oct. 7, 2005), aff‟d,
                                            -16-
Vasques, 221 S.W.3d 514 (Tenn. 2007)). This standard “requires determination of both
the relevance and the credibility of the discovered information” and “upholds the
traditional, discretionary authority of our trial judges to consider the new evidence in the
context of the trial, to assess its veracity and its impact upon the testimony of the other
witnesses, and to determine the potential effect, if any, on the outcome.” Id. at 527-28.

       A petition for writ of error coram nobis must meet the following requirements:

       “The . . . petition must be in writing and (1) must describe with particularity
       the nature and substance of the newly discovered evidence and (2) must
       demonstrate that this evidence qualifies as “newly discovered evidence.” In
       order to be considered “newly discovered evidence,” the proffered evidence
       must be (a) evidence of facts existing, but not yet ascertained, at the time of
       the original trial, (b) admissible, and (c) credible. In addition to describing
       the form and substance of the evidence and demonstrating that it qualifies
       as “newly discovered evidence,” the [petitioner] must also demonstrate
       with particularity (3) why the newly discovered evidence could not have
       been discovered in a more timely manner with the exercise of reasonable
       diligence; and (4) how the newly discovered evidence, had it been admitted
       at trial, may have resulted in a different judgment.”

Payne, 2016 WL 1394199, at *4 (quoting Harris, 301 S.W.3d at 152 (Koch, J., concurring
in part and concurring in result) (footnotes omitted)). A coram nobis petition “must be
„as specific and certain as the nature of the error will permit.‟” Harris, 301 S.W.3d at 150
(Koch, J., concurring in part and concurring in result) (quoting Memphis St. Ry. v.
Johnson, 88 S.W. 169, 171 (Tenn. 1905)). “Specificity is required for the purpose of
assuring (1) that the trial court and the opposing party are informed precisely of the error
or errors being relied upon and (2) to assure the appellate courts that the trial court was
made aware of the alleged error and was given an opportunity to consider and pass on it.”
Id. (citing Ferguson v. State, 61 S.W.2d 467, 468 (Tenn. 1933); State v. McKinney, 603
S.W.2d 755, 760 (Tenn. Crim. App. 1980); W. MARK WARD, TENNESSEE CRIMINAL TRIAL
PRACTICE § 31:1 (2008-2009)).

       Affidavits, in support of the coram nobis petition, should be filed with the petition
or at some point prior to a hearing. Hart, 911 S.W.2d at 375 (citations omitted). “An
affidavit, like the testimony of a witness, must be relevant, material and germane to the
grounds raised in the petition; and the affiant must have personal knowledge of the
statements contained in the affidavit.” Id. (citing State v. Byerley, 658 S.W.2d 134, 141
(Tenn. Crim. App. 1983)). An affidavit that fails to meet these requirements “will not
justify the granting of an evidentiary hearing since the information contained in the
affidavits, taken as true, would not entitle the petitioner to relief.” Id. (citing State v.
                                            -17-
Todd, 631 S.W.2d 464, 466-67 (Tenn. Crim. App. 1981)). If an affidavit is sufficient, and
therefore justifies an evidentiary hearing, then the coram nobis court should not
determine the merits of the petition based on the strength of the affidavits alone. Id.
(citing Hicks v. State, 571 S.W.2d 849, 852 (Tenn. Crim. App. 1978)).

      Coram nobis claims can be based on a variety of grounds:

      The grounds for seeking a petition for writ of error coram nobis are not
      limited to specific categories, as are the grounds for reopening a post-
      conviction petition. Coram nobis claims 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. Coram nobis claims therefore
      are singularly fact-intensive. Unlike motions to reopen, coram nobis claims
      are not easily resolved on the face of the petition and often require a
      hearing.

Harris, 102 S.W.3d at 592-93. However, like habeas corpus proceedings, evidentiary
hearings are not required by statute in every coram nobis proceeding. See Harris, 301
S.W.3d at 153-54 (Koch, J., concurring in part and concurring in result) (noting that
evidentiary hearings on coram nobis petitions need only be conducted when they are
essential and that petitions may be dismissed if the averments in the petition are
insufficient to warrant relief); see also Clarence D. Schreane v. State, No. E2012-01202-
CCA-R3-PC, 2013 WL 173193, at *7 (Tenn. Crim. App. Jan. 16, 2013) (citing Richard
Hale Austin v. State, No. W2005-02591-CCA-R3-CO, 2006 WL 3626332, *6 (Tenn.
Crim. App. Dec. 13, 2006)). A habeas corpus petition or a coram nobis petition may be
dismissed without a hearing and without the appointment of counsel if the petition fails to
allege facts showing the petitioner is entitled to relief. See Clarence D. Schreane, 2013
WL 173193, at *7 (citing Richard Hale Austin, 2006 WL 3626332, *6); see also T.C.A. §
40-14-204 (stating that appointment of counsel in an error coram nobis proceeding is left
to the discretion of the trial court). Moreover, this court may affirm the dismissal of a
petition for writ of coram nobis on erroneous procedural grounds if the record establishes
that petitioner is not entitled to coram nobis relief based on alternate grounds. See Leroy
Johnson v. State, No. W2014-01993-CCA-R3-ECN, 2015 WL 4608341, at *2 (Tenn.
Crim. App. Aug. 3, 2015) (affirming summary dismissal of the petition, despite coram
nobis court‟s erroneous finding that the petition was untimely, because the petitioner did
not allege newly discovered evidence entitling him to coram nobis relief); Daniel Lee
Draper v. State, No. E2009-00952-CCA-R3-CD, 2010 WL 5343193, at *4-6 (Tenn.
Crim. App. Dec. 21, 2010) (affirming summary dismissal of the coram nobis petition,
despite coram nobis court‟s erroneous finding that the petition was untimely, because the
petitioner failed to present new evidence).
                                           -18-
        The Petitioner asks us to excuse any deficiencies in his petition because he is a pro
se litigant. We recognize that pro se petitions are “„held to less stringent standards than
formal pleadings drafted by lawyers‟” and that “„the test is whether it appears beyond
doubt that the [petitioner] can prove no set of facts in support of his claim which would
entitle him to relief.‟” Carter v. Bell, 279 S.W.3d 560, 568 (Tenn. 2009) (quoting
Swanson v. State, 749 S.W.2d 731, 734 (Tenn. 1988)); see Young v. Barrow, 130 S.W.3d
59, 63 (Tenn. Ct. App. 2003) (Pro se litigants are given “a certain amount of leeway in
drafting their pleadings and briefs.”). However, a pro se litigant generally must follow
the same procedural rules as a litigant represented by counsel. Carter, 279 S.W.3d at 568
(citing Swanson, 749 S.W.2d at 735); see Young, 130 S.W.3d at 63 (“[T]he courts must
not excuse pro se litigants from complying with the same substantive and procedural
rules that represented parties are expected to observe.”). “Even though the courts cannot
create claims or defenses for pro se litigants where none exist, they should give effect to
the substance rather than the form or terminology, of a pro se litigant‟s papers.” Young,
130 S.W.3d at 63 (citations omitted).

        Initially, we must consider whether the Petitioner can use a coram nobis petition to
relitigate a suppression motion. As we previously noted, the Petitioner filed several
motions to suppress that were denied by the trial court, and the denial of these
suppression motions was affirmed on direct appeal. See Howard Hank Willis, 2015 WL
1207859, at *58-66. Because the Petitioner‟s confession was deemed admissible, he may
not seek coram nobis relief on this basis. Even if the suppression of the Petitioner‟s
confession had the potential to affect his judgment for the purposes of coram nobis relief,
we conclude that the petition is substantively deficient when held to less stringent
standards than pleadings drafted by lawyers. The Petitioner‟s claim that the interview
notes and the recorded phone conversations would have shown that his confession and
statements were the result of an invalid arrest warrant is unpersuasive. See Clarence D.
Schreane, 2013 WL 173193, at *8 (affirming the trial court‟s dismissal of the petition, in
part, because the purported newly discovered evidence failed to corroborate the
petitioner‟s claim that his statement was involuntary and should be suppressed because of
the promises made by police at the time he gave his statement). The Petitioner‟s bare
allegation that certain witnesses were aware that the Petitioner was using Thomas‟s credit
cards while Thomas was alive does not mean that the Petitioner was not committing
credit card fraud. Finally, this court has repeatedly held that a petition for writ of coram
nobis cannot be used to relitigate a suppression motion. See Timothy L. Jefferson v.
State, No. M2014-00756-CCA-R3-ECN, 2015 WL 2128606, at *8 (Tenn. Crim. App.
May 6, 2015); Daniel Lee Draper, 2010 WL 5343193, at *5.

      The petition also shows that the Petitioner failed to present newly discovered
evidence entitling him to coram nobis relief. We have already noted that the Petitioner
acknowledged in his affidavit that he was given the investigative file containing interview
                                            -19-
notes of witnesses Daisy Bagby, John Bagby, and Debbie Armes on May 18, 2010, prior
to his trial. Consequently, this proof does not constitute “newly discovered evidence.”
See Daniel Lee Draper, 2010 WL 5343193, at *5 (concluding that documents possessed
by the defense prior to petitioner‟s guilty plea were not newly discovered evidence within
the meaning of the coram nobis statute). Aside from it not being newly discovered, this
investigative file would not have been admissible pursuant to Tennessee Rule of
Evidence 803(8). As for the recorded phone calls, the Petitioner first presented the
argument that witnesses Joy Gadd, Wilda Willis, and Brian Brown knew he was using
Thomas‟s credit cards while Thomas was alive in his November 13, 2009 motion to
suppress. As we previously recognized, newly discovered evidence that is cumulative to
the other evidence in the record will not justify coram nobis relief when the evidence, if
introduced, would not have resulted in a different judgment. See Hart, 911 S.W.2d at
375. The Petitioner also admits in his affidavit that these phone calls were recorded by
his investigator prior to trial. For these reasons, the interview notes and the phone call
recordings do not constitute newly discovered evidence.

       The Petitioner also has not shown that he was without fault in failing to present the
newly discovered evidence at the appropriate time. While the allegations in the petition
were more appropriate for a suppression motion, the petition provides no explanation
excusing him from failing to present this evidence at trial. It also contains no facts
showing that his failure to present this “newly discovered evidence” was not because of
his own negligence. Consequently, he cannot claim that he was without fault in failing to
present the evidence sooner.

       Finally, the Petitioner has failed to show how the newly discovered evidence, had
it been admitted at trial, may have resulted in a different judgment. At trial, the proof of
the Petitioner‟s guilt was overwhelming. The Petitioner confessed to Wilda Willis that he
“blew [the victims‟] brains out” at the home of his mother, Betty Willis; cut off Adam
Chrismer‟s head and hands and threw them in a lake close to Devault Bridge; and put
Samantha Chrismers‟s body and the rest of Adam Chrismers‟s body in a storage unit.
Willis, 2015 WL 1207859, at *14. The Petitioner told Wilda where to find the chainsaw
used to sever Adam‟s head and hands, and officers later found the chainsaw in the area
described by the Petitioner. See id. at *15. Adam‟s head and hands were found in Boone
Lake. See id. at *3, *5, *8-9. Later, officers found Samantha‟s body and the remainder
of Adam‟s body in a storage unit rented by Betty. See id. at *7. Both victims died of
gunshot wounds to the head. See id. at *9-10. The gun used to shoot the victims was
found close to Betty‟s home. See id. at *19, *27. A blue tarp in the storage unit with the
victims‟ bodies contained the Petitioner‟s thumbprint. See id. Numerous objects from
Betty‟s home, including carpet and rope, were found inside the storage unit where the
victims‟ bodies were found. See id. at *20-21. Given the Petitioner‟s confession to the
Chrismer murders as well as the other corroborating evidence of his guilt, the Petitioner
                                            -20-
has failed to show that evidence regarding his use of Thomas‟s credit cards before
Thomas‟s disappearance may have resulted in a different judgment had this evidence
been admitted at his previous trial. For all of these reasons, we conclude that the coram
nobis court did not abuse its discretion in summarily dismissing the petition in light of the
petition‟s substantive deficiencies.

       V. Newly Discovered Evidence Identified by Counsel in Brief. In his pro se
petition, the Petitioner identified the following newly discovered evidence: (1) the
interview notes of witnesses Daisy Bagby, John Bagby and Debbie Armes showing that
Sam Thomas was alive at the time Petitioner was alleged to have been unlawfully using
Sam Thomas‟s credit card, which were discovered in the investigative file in the Samuel
Thomas case in December 2013, and (2) the phone call recordings showing that witnesses
Joy Gadd, Wilda Willis, and Brian Brown knew Sam Thomas was alive at the time
Petitioner was using his credit cards and that the Petitioner‟s use of the cards was not
unusual, which were discovered in April 2014. However, in his appellate brief filed with
the assistance of counsel, the Petitioner articulates two sources of newly discovered
evidence that might have resulted in a different judgment at trial:

       (1) Sam Thomas‟s investigative file—which contains evidence of pre-trial
       statements implicating a third-party for Chrismer deaths, and

       (2) recorded phone conversations between Kell[y] [Chancey] and Wilda
       Willis, in which Wilda admits that the Chrismers were not with [the
       Petitioner] the night they disappeared.

While the sources of the evidence identified by counsel are similar to the sources
identified in the Petitioner‟s pro se petition, the newly discovered evidence itself, namely
the evidence of pre-trial statements implicating a third party and Wilda‟s recorded
conversation in which she admitted that the Chrismers were not with the Petitioner the
night they disappeared, is distinct from the newly discovered evidence specified in the
Petitioner‟s pro se coram nobis petition, most notably because this alternate evidence is
exculpatory in nature.

       Petitioner‟s counsel was appointed by this court after the Petitioner appealed the
summary dismissal of his petition. While we recognize that counsel was appointed for
the purpose of assisting the Petitioner on appeal, it is clear that counsel has attempted to
reframe the “newly discovered evidence” that is the subject of the Petitioner‟s coram
nobis claim. The pro se petition states that “Petitioner seeks a new trial, wherein the
suppression issue will be relitigated using the newly discovered evidence” or
alternatively, “Petitioner seeks to relitigate the suppression issue using the newly
discovered evidence, which may then be the basis for a new trial.” The Petitioner asserts
                                            -21-
that the newly discovered evidence in his petition will invalidate his arrest warrant and
result in the suppression of his statements. In working on this case, appointed counsel
may have assumed that reframing the “newly discovered evidence” based on information
in the Petitioner‟s affidavit was permissible given that counsel was unable to file an
amended coram nobis petition in the trial court. In addition, he may have believed that
reframing the “newly discovered evidence” would increase the likelihood of success on
appeal. Nevertheless, we believe that counsel was bound by the “newly discovered
evidence” so clearly identified by the Petitioner in his pro se petition. See Harris, 301
S.W.3d at 150 (Koch, J., concurring in part and concurring in result) (stating that “the
[coram nobis] petition itself embodies the best case the petitioner has for relief from the
challenged judgment [and that] the fate of the petitioner‟s case rests on the ability of the
petition to demonstrate that the petitioner is entitled to the extraordinary relief that the
writ provides”).

        Even if we give the Petitioner the benefit of the “newly discovered evidence”
identified by appointed counsel, the Petitioner is not entitled to coram nobis relief. The
Petitioner through counsel devotes a single paragraph, consisting of five sentences, to
explain how the alternate “newly discovered evidence” may have resulted in a different
judgment at trial. He claims that the pretrial statements implicating third-party guilt as
well as the proof he was not with the victims the night they disappeared “raises more than
a „possibility‟ that [he] did not commit the crimes for which he was sentenced to death.”
He also asserts that his new evidence could be used to impeach the State‟s witnesses,
especially Wilda Willis, who provided key information implicating him in the murders to
the State.

        As for the investigative file, which the Petitioner claims contains evidence of pre-
trial statements implicating a third-party for Chrismer deaths, we have already concluded
that the Petitioner received this file prior to trial. Consequently, this evidence is not
newly discovered evidence. Moreover, we cannot conclude that this evidence may have
resulted in a different result at trial had it been introduced. As we have already
recognized, the proof at trial of the Petitioner‟s guilt was overwhelming.

        As for the recorded telephone conversations in which Wilda Willis admits that the
Chrismers were not with the Petitioner the night they disappeared, the Petitioner claims
that he did not receive this evidence until April 2014. However, he admits in his affidavit
that these phone calls were recorded by his investigator prior to trial. Even if we give the
Petitioner the benefit of the doubt and conclude that the affidavit, though not the petition,
“contains sufficient specific factual averments which, if true, make out a prima facie basis
for invocation of the equitable tolling doctrine,” see Harris, 301 S.W.3d at 159 (Koch, J.,
concurring in part and concurring in result), we simply cannot conclude that this proof
may have resulted in a different judgment had it been presented at trial. We have already
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recognized that “newly discovered evidence” that is cumulative to the other proof in the
record or serves no other purpose than to contradict or impeach the evidence at trial will
not justify coram nobis relief when the evidence, if presented, would not have resulted in
a different judgment. See Hart, 911 S.W.2d at 375; Vasques, 221 S.W.3d at 528. At trial,
Patty Leming, Samantha Chrismer‟s mother, testified that she saw Samantha for the last
time on the night of October 4, 2002, at a Pizza Hut located on the border of
Chattanooga, Tennessee, and Georgia. She also testified that she thought she saw the
Petitioner in a red Jeep in the parking lot of the Pizza Hut that night, that Adam Chrismer
came into the Pizza Hut and told Samantha, “Howard said, let‟s go,” and that Adam and
Samantha exited the restaurant and presumably left with the Petitioner. Willis, 2015 WL
1207859, at *2. In addition, Wilda Willis testified at trial that on October 4, 2002, the
Petitioner “came to her house with two other people in Betty Willis‟s red Jeep.” Id. at
*13. Wilda stated that “because it was late in the evening and she was in a hurry, she did
not pay attention to the two people with [the Petitioner].” Id. However, she noticed that
“a female appeared to be in the Jeep and that a young man was standing outside the
vehicle.” Id. On cross-examination, Wilda stated that “the female in the Jeep covered
her head when Wilda walked outside.” Id. at *16. She said that “the female appeared to
have blonde hair but noted that it was dark outside.” Id. After considering the evidence
provided by Patty Lemming and Wilda Willis at trial, it is clear that the Petitioner‟s newly
discovered evidence, namely Wilda‟s statement that the Chrismers were not with the
Petitioner the night they disappeared, serves no purpose other than to contradict the
evidence presented at trial and would not have resulted in a different judgment had it
been presented at the previous trial. Moreover, this evidence would not have resulted in a
different judgment, especially in light of the overwhelming evidence of the Petitioner‟s
guilt at trial. Therefore, even if we give the Petitioner the benefit of the alternate “newly
discovered evidence” suggested by counsel, he is not entitled to coram nobis relief.

       After evaluating both the Petitioner‟s and appointed counsel‟s claims of newly
discovered evidence, we conclude that the Petitioner is not entitled to relief. Given the
pro se nature of the petition, we have carefully examined the petition, the affidavit, and
all attachments and conclude that the Petitioner has failed to present any newly
discovered evidence entitling him to coram nobis relief.

                                     CONCLUSION

       Based on the record and arguments of the parties, we conclude that the trial court
did not abuse its discretion in summarily dismissing the petition for writ of error coram
nobis. Therefore, the judgment of the coram nobis court is affirmed.

                                                   _________________________________
                                                   CAMILLE R. McMULLEN, JUDGE
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