         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON

               CARL E. ROSS, PRO SE v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                             No. P-26913    J.C. McLin, Judge



                   No. W2003-01448-CCA-R3-CO - Filed January 9, 2004


This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by
order pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner is appealing the
lower court’s denial of coram nobis relief. After review of the record, we conclude that the State's
motion is well-taken and the trial court's order denying Petitioner coram nobis relief is affirmed.


Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of the
Court of Criminal Appeals

DAVID G. HAYES, J., delivered the opinion of the court, in which JOE G. RILEY and JOHN EVERETT
WILLIAMS, JJ., joined.

Carl E. Ross, pro se.

Paul G. Summers, Attorney General & Reporter; John Bledsoe, Assistant Attorney General, for the
appellee, the State of Tennessee.

                                            OPINION

        In 1995, Petitioner was convicted of two counts of attempt to commit second degree murder,
three counts of aggravated robbery, and one count of theft in excess of $1,000.00. See State v. Carl
Ross, No. 02C01-9510-CR-00301, 1997 WL 30347, *1 (Tenn. Crim. App. at Jackson, Jan. 28,
1997), perm. to appeal denied, (Tenn. Sept. 22, 1997). For these convictions, the trial court
sentenced Petitioner to an effective sentence of 162 years at 60%. Id. This Court affirmed the
convictions and sentences on January 28, 1997. Id. Petitioner subsequently sought post-conviction
relief; which was denied. See Carl Ross v. State, No. W1999-01455-CCA-R3-PC, 2000 WL
1670960, *1 (Tenn. Crim. App. at Jackson, Oct. 25, 2000), perm. to appeal denied, (Tenn. Apr. 16,
2001).

       On December 3, 2002, Petitioner filed a petition for writ of error coram nobis relief in the
Shelby County Criminal Court. As basis for the petition, Petitioner asserts that he should be granted
a new trial based upon grounds of newly discovered evidence. As factual basis for this assertion,
Petitioner claims that “co-defendant Charles E. McClelland was willing to provide an affidavit and
testimony that petitioner was not an accomplice in the commission of the criminal acts.”
Acknowledging that the one-year statute of limitations has expired, Petitioner asserts that “applying
the statute of limitations would be unconstitutional in this case because he did not have Charles
McClelland’s statement recanting his trial testimony within the limitations period.” The State
responded that due process did not require tolling the statute of limitations because the alleged newly
discovered evidence does not show Petitioner’s actual innocence nor does it establish mitigating
evidence relating to Petitioner’s sentence.

        On March 20, 2002, the trial court denied Petitioner’s motion, finding that due process did
not require tolling of the one-year statute of limitations. Specifically, the court noted that (1) this
is not a capital case, (2) the considerations alleged by the Petitioner do not outweigh the
governmental interests at stake, and (3) the evidence against the Petitioner was great, including the
testimony of a police officer identifying the Petitioner and the fact that stolen items were found in
the vehicle and at the Petitioner’s home.

        To the extent that the Petitioner seeks the benefit of a writ of error coram nobis, his claim
is time barred. The statute of limitations for that form of relief is one year from a judgment's
finality. See Tenn. Code Ann. § 27-7-103. Moreover, the Petitioner has not demonstrated the
applicability of any basis upon which he might be excused from the statute of limitations bar. See
generally Workman v. State, 41 S.W.3d 100 (Tenn. 2001) (due process may toll statute of
limitations where petitioner facing death penalty seeks to present claim of newly discovered
evidence). With respect to the writ of error coram nobis, the Code provides:
        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.
Tenn. Code Ann. § 40-26-105. Although a witness's recantation of his prior trial testimony may
be newly discovered evidence, Mixon, 983 S.W.2d at 672, before granting a new trial on the
basis of newly discovered recanted testimony, the trial court must find: (1) it is reasonably well
satisfied that the testimony given by the material witness was false and the new testimony is true;
(2) the defendant was reasonably diligent in discovering the new evidence, or was surprised by
the false testimony, or was unable to know of the falsity of the testimony until after the trial; and
(3) the jury might have reached a different conclusion had the truth been told. State v. Ratliff, 71
S.W.3d 291, 298 (Tenn. Crim. App. 2001) (citing State v. Mixon, 983 S.W.2d 661, 673 n. 17
(Tenn. 1999). In this case, the Petitioner's claims, even if taken as true, do not fit within the
category of cognizable claims. He is not seeking to bring new evidence before the court which
might have had an effect on the judgment. Indeed, at the Petitioner’s trial, Charles McClelland
testified that he had agreed to testify for the State in return for a fifteen-year sentence. See State
v. Carl Ross, No. 02C01-9510-CR-00301, 1997 WL 30347, at * 2. On cross-examination,
McClelland acknowledged that he had not been completely honest with the police. Id. Thus,

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McClelland’s credibility was effectively questioned at trial. Moreover, a police officer identified
the Petitioner as being in the get-away vehicle and stolen items were discovered at the
Petitioner’s home and in the car. Id. We cannot conclude that McClelland’s recantation would
have had an impact on the result of the trial. Thus, coram nobis relief, therefore, cannot lie.


        Accordingly, it is ORDERED that the State’s motion is GRANTED. The judgment of the
trial court is AFFIRMED in accordance with Rule 20, Rules of the Court of Criminal Appeals.
Costs of this appeal shall be assessed to the State.




                                                      ____________________________________
                                                            DAVID G. HAYES, JUDGE




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