        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs July 12, 2016

                DANNY RAY LACY v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Madison County
                      No. C-15-264      Donald H. Allen, Judge


                No. W2015-02345-CCA-R3-ECN - Filed July 25, 2016


In 1996, a Madison County jury convicted the Petitioner, Danny Ray Lacy, of first degree
felony murder during the perpetration of aggravated child abuse, and the trial court
sentenced him to life in prison without the possibility of parole. The Petitioner appealed,
and this Court affirmed the Petitioner‟s conviction and sentence. State v. Lacy, 983
S.W.2d 686 (Tenn. Crim. App. 1997). The Petitioner filed an unsuccessful petition for
habeas corpus relief. Danny Ray Lacy v. Cherry Lindamon, Warden, No. M2009-00072-
CCA-R3-CO, 2009 WL 3029619, at *1 (Tenn. Crim. App., at Nashville, Sept. 22, 2009),
no Tenn. R. App. P. 11 application filed. The Petitioner then filed this petition for writ of
error coram nobis, alleging that the Jackson Police Department possessed exculpatory
evidence. The coram nobis court dismissed the petition, and, after review, we affirm that
judgment.

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

ROBERT W. WEDEMEYER, J. delivered the opinion of the Court, in which JOHN EVERETT
WILLIAMS and ALAN E. GLENN, JJ., joined.

Danny Ray Lacy, Clifton, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; James G. Woodall, District Attorney General; and Alfred L. Earls,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts

       In our opinion from the Petitioner‟s first direct appeal, we summarized the facts
presented at trial. Those facts showed that the victim‟s mother and the Petitioner, who
was not the victim‟s biological father, were in a relationship. The Petitioner had
previously beaten the victim as a form of punishment, which caused the victim‟s mother
to lose custody of him. When the victim was returned to his mother‟s care, the victim‟s
mother again began dating the Petitioner. While in the Petitioner‟s care, the victim
suffered blunt force trauma resulting in his death. The Petitioner testified at trial that the
victim fell and hit his head but seemed fine. The jury convicted the Petitioner of felony
first degree murder.

       The Petitioner appealed, and this Court affirmed the Petitioner‟s conviction and
sentence. Lacy, 983 S.W.2d at 686. Later, the Petitioner sought post-conviction relief
alleging ineffective assistance of counsel. The post-conviction court denied relief, and
this Court affirmed. See Danny Ray Lacy v. State, No. W2000-01898-CCA-R3-PC, 2001
Tenn. Crim. App. LEXIS 4341 (Tenn. Crim. App., at Jackson, June 7, 2001), no Tenn. R.
App. P. 11 application filed.1

        The Petitioner filed a petition for a writ of habeas corpus on November 7, 2008.
As grounds for relief, the Petitioner argued: (1) that the trial court failed to properly
instruct the jury in two respects, charging second degree murder as a lesser included
offense and including the definition of “intentional,” and (2) that trial counsel was
ineffective for failing to object to these erroneous instructions. The habeas corpus court
summarily dismissed the petition. This Court affirmed, holding that the petition did not
state a cognizable claim for habeas corpus relief. Danny Ray Lacy v. State, No. M2009-
00072-CCA-R3-CO, 2009 WL 3029619, at *2 (Tenn. Crim. App., at Nashville, Sept. 22,
2009), no Tenn. R. App. P. 11 application filed.

        On September 11, 2015, the Petitioner filed a petition for writ of error coram
nobis. In it, he alleged that the Jackson Police Department possessed newly discovered
exculpatory evidence. He asserted that the statute of limitations should be tolled because
he only recently received the records showing that this evidence existed. He said that, up
until that time, he had been denied access to the Jackson Police Department‟s
investigative file. The Petitioner alleged that the file contained a statement of Virginia
Anderson, the victim‟s grandmother, which contradicted her trial testimony. He attached
that statement to his petition. It read:

              [The victim‟s mother] brought [the victim] to my house in the
       afternoon on Saturday. She came back to pick him up around 12 p.m. or
       1:00 a.m.

              [The victim] played the whole time he was there. There w[ere] no
       other kids there. He and I went to bed. He talked. He went to sleep before

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       his mother came. When he came to my house he did not have a bruise to
       his head by his eye. I can‟t say about the scratch marks to his neck.

             [The victim‟s mother] drove her car to church. She came and got
       me. We went back to church. After church we took her other grandmother
       home. She went on home.

              We left the church about 5:30 p.m. Right after we got home the
       phone rang. I answered the phone. I could not understand what she was
       saying. Her daddy took the phone. She said something had happened to
       [the victim]. We drove over there. The ambulance and police were already
       there.

              I have seen switch marks on [the victim].

              I never heard [the victim] say anything bad about [the Petitioner].

The Petitioner alleged that this statement would have supported his own testimony that he
did not know when the injuries happened and that he did nothing to the victim before his
death.

       The State filed a motion to dismiss, raising the statute of limitations as a defense
and stating that it had given the Petitioner and his counsel open file discovery as well as
the name and location of all witnesses before trial.

        The coram nobis court dismissed the petition, finding that it was time-barred. It
stated that the allegedly exculpatory evidence was not “newly discovered” and would not
have changed the outcome of the trial. It further found that the statement‟s only purpose
would have been to impeach Ms. Virginia Anderson‟s testimony. It is from this
judgment that the Petitioner now appeals.

                                        II. Analysis

       On appeal, the Petitioner contends that the coram nobis court erred when it
summarily dismissed his petition. He asserts that the State violated Brady v. Maryland,
373 U.S. 83 (1963), by withholding Ms. Anderson‟s statement. He further asserts that
the victim‟s mother admitted that she hit the victim on the same area that caused his
death, that there was a conflict in the time frame of the alleged injuries, that the victim‟s
mother‟s whereabouts on the day of the victim‟s death were not factually presented to the
jury, and that our opinion on direct appeal incorrectly stated the material facts. The State

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counters that the coram nobis court correctly found that the petition was time-barred and
meritless. We agree.

       A writ of error coram nobis is available to a defendant in a criminal prosecution.
T.C.A. § 40-26-105(a) (2014). The decision to grant or to deny a petition for the writ of
error coram nobis on its merits rests within the sound discretion of the trial court. Harris
v. State, 301 S.W.3d 141, 144 (Tenn. 2010) (citing State v. Vasques, 221 S.W.3d 514,
527-28 (Tenn. 2007)). Tennessee Code Annotated section 40-26-105(b) provides, in
pertinent part:

               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.

        A writ of error coram nobis is an “extraordinary procedural remedy,” filling only a
“slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn.
1999); State v. Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002). As previously
noted by this Court, “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 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. 1996)).

        To establish that he is entitled to a writ of error coram nobis, the Petitioner must
show: (a) the grounds and the nature of the newly discovered evidence; (b) why the
admissibility of the newly discovered evidence may have resulted in a different judgment
if the evidence had been admitted at the previous trial; (c) that the Petitioner was without
fault in failing to present the newly discovered evidence at the appropriate time; and (d)
the relief sought. Hart, 911 S.W.2d at 374-75. Affidavits should be filed in support of
the petition. Id. at 375.

              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

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       are not easily resolved on the face of the petition and often require a
       hearing.

Harris v. State, 102 S.W.3d 587, 592-93 (Tenn. 2003). “Similar to habeas corpus
hearings, coram nobis evidentiary hearings are not mandated by statute in every case.”
Richard Hale Austin v. State, No. W2005-02591-CCA-R3-CO, 2006 WL 3626332, at *5
(Tenn. Crim. App., at Jackson, Dec. 13, 2006), no Tenn. R. App. P. 11 filed. A petition of
either type “„may be dismissed without a hearing, and without the appointment of counsel
for a hearing‟” if the petition does not allege facts showing that the petitioner is entitled
to relief. Id. (quoting State ex rel. Edmondson v. Henderson, 421 S.W.2d 635, 636
(Tenn. 1967)).

        A petition for a writ of error coram nobis must be filed within one year of the
judgment becoming final in the trial court. T.C.A. § 27-7-103. This 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 v. State, 301 S.W.3d 141, 144
(Tenn. 2010); see Mixon, 983 S.W.2d at 670 (“[W]e reject the contention . . . that the
statute does not begin to run until the conclusion of the appeal as of right proceedings.”).
In the present case, the judgment became final in 1998. The Petitioner did not file this
petition for writ of error coram nobis until July 2014, more than fifteen years later.

        The one-year statute of limitations for a petition for writ of error coram nobis may
be tolled on due process grounds if a petition seeks relief based upon newly discovered
evidence of actual innocence. Harris, 301 S.W.3d at 145. In determining whether the
statute should be tolled, the court must balance the petitioner‟s interest in having a
hearing with the State‟s interest in preventing a claim that is stale and groundless. Id.
Generally, “before a state may terminate a claim for failure to comply with . . . statutes of
limitations, due process requires that potential litigants be provided an opportunity for the
presentation of claims at a meaningful time and in a meaningful manner.” Burford v.
State, 845 S.W.2d 204, 208 (Tenn. 1992). The Burford rule requires three steps:

               (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.

Sands v. State, 903 S.W.2d 299, 301 (Tenn. 1995). As a general rule, the claim at issue
must not have existed during the limitations period to trigger due process consideration.
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Seals v. State, 23 S.W.3d 272 (Tenn. 2000). Discovery of or ignorance to the existence
of a claim does not create a “later-arising” claim. See Brown v. State, 928 S.W.2d 453,
456 (Tenn. Crim. App. 1996); Passarella v. State, 891 S.W.2d 619, 635 (Tenn. Crim.
App. 1994).

        The State bears the burden of raising the bar of the statute of limitations as an
affirmative defense. Harris, 102 S.W.3d at 593. This Court has stated that “the statute of
limitations is an affirmative defense which must be specifically pled or it is deemed
waived.” Newsome v. State, 995 S.W.2d 129, 133 n.5 (Tenn. Crim. App. 1998).

        In the case under submission, we conclude that the trial court properly determined
that the petition was time-barred and that due process considerations did not require a
tolling of the statute of limitations. The Petitioner‟s permission to appeal to the
Tennessee Supreme Court was denied on September 1, 1998. His petition for writ of
error coram nobis was filed September 11, 2015. Further, due process does not require
tolling of the statute of limitations. The State offered the Petitioner open file discovery,
so he and his attorney had access to Ms. Anderson‟s statement before trial. The
statement does not offer any exculpatory information, and it would, at best, slightly
impeach Ms. Anderson‟s trial testimony. The statement certainly does not constitute
newly discovered evidence that would warrant error coram nobis relief. The Petitioner is
not entitled to relief.

                                     III. Conclusion

      In accordance with the aforementioned reasoning and authorities, we affirm the
coram nobis court‟s judgment.
                                             _________________________________
                                            ROBERT W. WEDEMEYER, JUDGE




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