          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                         Assigned on Briefs November 14, 2013

                 JAMELLE M. FELTS v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Robertson County
                       No. 06-0426A     Michael R. Jones, Judge


                No. M2013-00722-CCA-R3-PC - Filed December 17, 2013


The Petitioner, Jamelle M. Felts, appeals the denial of post-conviction relief, arguing that he
received ineffective assistance of counsel. He also appeals the denial of coram nobis relief,
arguing that an eyewitness’s affidavit recanting his trial testimony is newly discovered
evidence entitling him to a new trial. Upon review, we affirm the denial of post-conviction
relief and the denial of coram nobis relief.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which T HOMAS T.
W OODALL and J OHN E VERETT W ILLIAMS, JJ., joined.

Joe R. Johnson, for the Petitioner-Appellant, Jamelle M. Felts.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel Harmon, Senior Counsel; John
W. Carney, Jr., District Attorney General; and Jason C. White, Assistant District Attorney
General, for the Appellee, State of Tennessee.

                                          OPINION

         Trial. On direct appeal, this court summarized the proof presented at the Petitioner’s
trial:

                The convictions in this case are the result of events that took place on
         June 14, 2006, at the Southfield Apartments in Springfield, Tennessee. Jessica
         Elmore, a resident of the apartment complex, testified that she was at her home
         when Nathan Holden arrived and told her to summon the victim, her
         ex-boyfriend Bryan England, to the apartment. Ms. Elmore went to her sister’s
         apartment, where the victim was playing cards with Michael “Chubby” Babb,
and told the victim that Mr. Holden wanted to see him. The two then walked
to Ms. Elmore’s apartment together. Because the door was locked, Ms. Elmore
knocked and requested entry. As they waited to go inside, two men, whom she
identified as the [Petitioner] and Antonio “Doonie” Bigbee, “came . . . [f]rom
the parking lot area” armed with an “SK” assault rifle and took the victim
“around the corner.” At that point, Ms. Elmore “took off back to [her] sister’s
house” and alerted Mr. Babb, who ran into the parking lot. She then ran back
to her own apartment, briefly seeing the victim in the passenger seat of his car.
Once inside, she heard tires squealing and a single gunshot.

        Ms. Elmore initially lied to police regarding the events of June 14 and
refused to disclose the names of the perpetrators. Eventually, however, she
agreed to cooperate with police and helped Detective Rickie Morris locate the
[Petitioner]’s “MySpace” internet page, which contained a picture of the
[Petitioner] holding an SKS assault rifle. Ms. Elmore stated that the rifle
appeared to be the same one used during the offenses.

       The victim testified that he was playing cards with Mr. Babb and two
women when Ms. Elmore summoned him to meet with Mr. Holden at her
apartment. The victim explained that the summons concerned him because “I
mean [Mr. Holden and I] didn’t talk.” He recalled that when they reached Ms.
Elmore’s door, “two guys came from each corner of the breeze way, from each
side and then they had me at gunpoint.” The men, one of whom was armed
with an SKS assault rifle, forced the victim to his car and ordered him to get
inside and slide to the middle of the front seat. As the victim complied with
the request, Mr. Babb came outside and said, “I know who ya’ll are.” While
the perpetrators were distracted by Mr. Babb, the victim drove away. A single
gunshot fired at the victim’s car went through the rear window, grazed his
shoulder, and exited through the windshield. The victim stated that he drove
straight home and telephoned Mr. Babb. The police arrived shortly thereafter,
and a friend drove the victim to the hospital. He was released later that same
evening.

        Michael “Chubby” Babb recalled that on the day of the offenses he was
playing cards with the victim and two women when Ms. Elmore arrived and
told the victim that “some dude” wanted to speak with him. Mr. Babb stated
that he warned the victim not to go, but the victim went anyway. Shortly
thereafter, a girl told him that two men were holding the victim at gunpoint in
the parking lot. Mr. Babb went to the parking lot and saw the victim sitting in
the middle of the front seat of his car with the engine running. Mr. Babb

                                       -2-
       recognized the [Petitioner], whom he knew as “Scooter,” as the gunman and
       Antonio “Doonie” Bigbee as his accomplice. Mr. Babb yelled, “I know who
       ya’ll is,” and when the men turned around, the victim drove away. The
       [Petitioner] then fired a single shot at the car.

              Detective Rickie Morris of the Springfield Police Department
       investigated the offenses, which were originally reported as “shots fired” at the
       Southfield Apartments. He found a single spent shell casing from “an assault
       type weapon” in the parking lot. He stated that the shell casing found in the
       parking lot was of the type fired by the weapon featured on the [Petitioner]’s
       MySpace page. He was unable to locate the weapon.

               The [Petitioner] presented no proof.

State v. Jamelle M. Felts, No. M2007-00945-CCA-R3-CD, 2008 WL 2521663, at *1-2
(Tenn. Crim. App. June 24, 2008), perm. app. denied (Tenn. Dec. 22, 2008).

       On February 7, 2007, the Petitioner was convicted of one count of reckless
endangerment, a Class A misdemeanor, and one count of especially aggravated kidnapping,
a Class A felony. The trial court imposed an effective sentence of fifteen years.

        Post-Conviction/Error Coram Nobis Hearing. On December 18, 2009, the
Petitioner filed a timely pro se petition for post-conviction relief, alleging, in part, ineffective
assistance of counsel. Following the appointment of counsel, Petitioner filed a petition for
writ of error coram nobis on September 1, 2010, and an amended petition for post-conviction
relief on December 16, 2011. In the petition for writ of error coram nobis, the Petitioner
alleged that he had newly discovered evidence in the form of an affidavit signed by Michael
Babb stating that Babb’s identification of the Petitioner at trial as the gunman was untrue.
The Petitioner further alleged that Babb’s affidavit entitled him to coram nobis relief because
it may have changed the outcome of his trial if it had been presented to the jury. In the
amended post-conviction petition, the Petitioner alleged that there was a fatal variance
between the factual allegations in count 3, the count charging him with especially aggravated
kidnapping, and the proof at trial.

        At the post-conviction hearing, the Petitioner, age twenty-four, testified that the State
failed to provide him with adequate notice of the evidence that would be presented against
him in count 3. He said that although count 3 only stated that he had “confined” the victim
during the offense, the State presented evidence at trial that the Petitioner had both
“removed” and “confined” the victim. However, the Petitioner acknowledged that count 3
did mention him moving the victim, walking the victim to his car, and putting him inside.

                                                -3-
         The Petitioner was unsure whether trial counsel tried to speak with the attorney
representing his co-defendant, Nathan Holden, about having Holden testify on the
Petitioner’s behalf. He acknowledged that he was the first of the three co-defendants to go
to trial. He also acknowledged that Holden still had charges pending and had not settled his
case at the time of his trial.

        Nathan Holden, one of the Petitioner’s co-defendants, was called to testify. In
response to the court’s questioning, Holden stated that he had testified in the trial of Antonio
Bigbee, one of the other co-defendants charged in this case. The court informed Holden that
if he testified differently than he had at Bigbee’s trial, he could be convicted of perjury or
aggravated perjury. After talking to counsel unassociated with the case, Holden exercised
his Fifth amendment right not to incriminate himself. Then Petitioner’s attorney asked that
Holden’s affidavit be admitted, and the State objected. Holden’s affidavit, which stated that
the Petitioner was innocent of the charges and that Petitioner’s attorney never attempted to
interview him about the Petitioner’s involvement in the offense, was entered into evidence.

        Trial counsel testified that she had spoken with Holden’s attorney about the possibility
of Holden testifying in the Petitioner’s case but that “there was no way” Holden was going
to testify on the Petitioner’s behalf. She said it was Holden’s attorney’s position that “if
anybody was going to get a deal it was [Holden].” She did not recall the Petitioner being
insistent about wanting to get Holden to testify on his behalf. In fact, she believed that the
Petitioner knew Holden “couldn’t offer him anything” in his case.

         Trial counsel stated that she spent time reviewing the Petitioner’s indictment to
consider whether the Petitioner was properly charged. She said her file contained “copious
case law notes” regarding the Petitioner’s charges. In addition, she was able to have the
Petitioner’s attempted first degree murder charge dismissed because the State had not met
its burden regarding that charge. She also stated that she “was very disappointed that the law
was written” in such a way that a “[k]idnapping [could] be a kidnapping of two minutes, it
could be 30 seconds.” She said she was unable to comment as to whether she believed that
the State properly charged the Petitioner in count 3. Trial counsel stated that her defense
strategy in this case was to challenge Jessica Elmore’s and Michael Babb’s identification of
the Petitioner. She recalled arguing that “it was dark out, they were wearing masks, just
because somebody has braids doesn’t mean it’s the same person as my client . . . .” She also
recalled telling the Petitioner that under the theory of criminal responsibility, he could be
found guilty of the charged offenses regardless of whether he was holding the gun. Trial
counsel stated that Babb “couldn’t get his facts straight” and had made “a horrible witness”
at trial.




                                              -4-
        Michael Babb testified that he testified truthfully at the Petitioner’s jury trial in
February 2007. When asked if he signed an affidavit after the Petitioner’s trial that called
into question some of his trial testimony, he replied, “I’m not for sure.” When he was shown
a copy of his affidavit, he acknowledged that he had signed the affidavit but had not read the
contents of the affidavit before signing it. Babb said he did not recall a notary putting his
stamp on the affidavit after he signed it. He then stated that he was “not sure” if someone
had read the contents of the affidavit to him before he signed it. Babb said his appointed
attorney had read the affidavit to him the day of the post-conviction hearing and
acknowledged that the affidavit stated that he had poor eyesight and could not see the
victim’s assailants. He also recalled the affidavit stating that Detective Morris coerced him
into identifying the Petitioner at trial. Babb stated that although Detective Morris did, in fact,
coerce him into signing a statement prior to trial, he did not feel pressure to testify
consistently with this statement.

       Babb reiterated that he was completely truthful at the Petitioner’s trial, that Detective
Morris did not coerce him to identify the Petitioner at trial, and that his testimony at trial was
given of his own free will. He said he understood that the affidavit was significantly
different than what he testified to at trial and that his testimony at trial was the truth. Babb
said that no one forced him to sign the affidavit and that he could not recall who asked him
to sign it. He acknowledged that the Petitioner could not have personally given him the
affidavit to sign because they were not housed in the same prison.

        On March 15, 2013, the post-conviction court entered an order denying post-
conviction relief and coram nobis relief. Although the court did not address, within the
context of ineffective assistance of counsel, the issue of a variance between the allegations
in count 3 and the proof at trial, it found that the State’s “theories and evidence were fairly
embraced in the allegations made in the indictment.” Regarding whether counsel was
ineffective in failing to interview Holden, the court found that Holden’s testimony would not
have been beneficial to the Petitioner. Finally, regarding whether Babb’s affidavit
constituted newly discovered evidence entitling the Petitioner to coram nobis relief, the court
determined that the affidavit was not newly discovered evidence because Babb had testified
at the post-conviction hearing that “the testimony he gave in the [Petitioner’s] trial was true.”
The Petitioner timely appealed.

                                         ANALYSIS

       I. Ineffective Assistance of Counsel. The Petitioner argues that trial counsel
provided ineffective assistance by failing to object to a fatal variance between the allegations
in count 3 of the indictment and the proof at trial and by failing to interview co-defendant



                                               -5-
Nathan Holden to develop him as a potential witness. The State asserts that the Petitioner
has failed to prove his claims by clear and convincing evidence. We agree with the State.

      Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.
§ 40-30-103. The Tennessee Supreme Court has held:

              A post-conviction court’s findings of fact are conclusive on appeal
       unless the evidence preponderates otherwise. When reviewing factual issues,
       the appellate court will not re-weigh or re-evaluate the evidence; moreover,
       factual questions involving the credibility of witnesses or the weight of their
       testimony are matters for the trial court to resolve. The appellate court’s
       review of a legal issue, or of a mixed question of law or fact such as a claim
       of ineffective assistance of counsel, is de novo with no presumption of
       correctness.

Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006) (internal quotation and citations
omitted). “The petitioner bears the burden of proving factual allegations in the petition for
post-conviction relief by clear and convincing evidence.” Id. (citing T.C.A. § 40-30-110(f);
Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006)). Evidence is considered clear and
convincing when there is no serious or substantial doubt about the accuracy of the
conclusions drawn from it. Hicks v. State, 983 S.W.2d 240, 245 (Tenn. Crim. App. 1998)
(citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)).

       In order to prevail on an ineffective assistance of counsel claim, the petitioner must
establish that (1) his lawyer’s performance was deficient and (2) the deficient performance
prejudiced the defense. Vaughn, 202 S.W.3d at 116 (citing Strickland v. Washington, 466
U.S. 668, 687 (1984); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)). “[A] failure to
prove either deficiency or prejudice provides a sufficient basis to deny relief on the
ineffective assistance claim. Indeed, a court need not address the components in any
particular order or even address both if the [petitioner] makes an insufficient showing of one
component.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996) (citing Strickland, 466 U.S.
at 697).

       A petitioner successfully demonstrates deficient performance when the clear and
convincing evidence proves that his attorney’s conduct fell below “an objective standard of
reasonableness under prevailing professional norms.” Id. at 369 (citing Strickland, 466 U.S.
at 688; Baxter, 523 S.W.2d at 936). Prejudice arising therefrom is demonstrated once the
petitioner establishes “‘a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is a

                                              -6-
probability sufficient to undermine confidence in the outcome.’” Id. at 370 (quoting
Strickland, 466 U.S. at 694).

       First, the Petitioner argues that although count 3 of the indictment did not reference
the “removal” of the victim, the proof at trial indicated that the Petitioner “removed” the
victim and only “attempted” to “confine” the victim. He asserts that “[d]efense counsel
should have objected to the sufficiency of the [i]ndictment once it became clear that the State
was arguing both theories of ‘removal’ and ‘confinement,’ as defense counsel was not put
on adequate notice as to the State’s theory in the case.”

        In support of his claim that the State’s evidence showed that he “removed” the victim,
he notes Elmore’s testimony, wherein she stated that the assailants “took [the victim] around
the corner, they were telling him to follow them.” She also said, “I seen [the Petitioner] push
[the victim] once like just trying to get him to go towards the direction of the car, but he was
behind [the victim] just pretty much guiding [the victim] to the car.” Moreover, he notes that
the State argued in its closing that the Petitioner and the other assailant “removed [the victim]
from the breezeway to the car, and they were going to confine him to the car, consistent with
getting in the middle so [one of the assailants could] get in and drive.” The State then made
the following statement during its closing:

       [T]hey removed [the victim] from that breezeway to the car. And then,
       attempted to confine him, said get in the middle. Not get[] in the driver’s side,
       get in the middle. They attempted to confine him, but it doesn’t have to be
       both. Remember that. It just has to be one, a removal or a confinement. It
       was a clear removal from the breezeway to the car, in an attempt to confine
       him once they get in there.

        Although the indictment was not included in the record on appeal, the indictment was
read to the jury at the beginning of trial and is included in the trial transcript that was made
a part of the appellate record. The pertinent portion of the indictment provides:

       . . . . [The Petitioner] unlawfully, feloniously, intentionally, knowingly and by
       use of a deadly weapon, did confine the victim unlawfully so as to interfere
       substantially with the victim’s liberty. When doing this confinement, the
       victim suffered bodily injury, to-wit, by having Mr. James [Nathan] Holden
       specifically ask to see Mr. Brian England, causing Mr. England to walk
       towards Mr. Holden’s supposed location and [the Petitioner] and Mr. Antonio
       Big[]bee approached Mr. England wearing masks and displaying an assault
       rifle, demanding that Mr. England get into his car, at which time the
       Defendants knowingly confined Mr. England to his car, so as to interfere with

                                               -7-
       his liberty. Then as Mr. England attempted to drive the car away from the
       location, during this process, one of the Defendants fired the rifle at Mr.
       England, causing Mr. England to suffer bodily injury and in violation of
       T.C.A. [§§] 39-12-101 and 39-13-305 and against the peace and dignity of the
       State of Tennessee.

As relevant in this case, especially aggravated kidnapping is defined as false imprisonment
“[a]ccomplished with a deadly weapon or by display of any article used or fashioned to lead
the victim to reasonably believe it to be a deadly weapon[.]” T.C.A. § 35-13-305(a)(1). The
crime of false imprisonment is committed by one “who knowingly removes or confines
another unlawfully so as to interfere substantially with the other’s liberty.” Id. §
35-13-302(a).

        A variance exists when the proof at trial does not correspond to the allegations in the
indictment. State v. Keel, 882 S.W.2d 410, 416 (Tenn. Crim. App. 1994). We note that a
variance is not fatal unless it is material and prejudicial. State v. Moss, 662 S.W.2d 590, 592
(Tenn. 1984); State v. Shropshire, 45 S.W.3d 64, 71 (Tenn. Crim. App. 2000); State v.
Holloman, 835 S.W.2d 42, 45 (Tenn. Crim. App. 1992). “A material variance occurs only
if the prosecutor has attempted to rely at the trial upon theories and evidence that were not
fairly embraced in the allegations made in the indictment.” State v. Mayes, 854 S.W.2d 638,
640 (Tenn. 1993) (citation omitted); State v. Ealey, 959 S.W.2d 605, 609 (Tenn. Crim. App.
1997). Moreover, “[a] material variance will not be found where the allegations and proof
substantially correspond.” Holloman, 835 S.W.2d at 45.

      The Tennessee Supreme Court outlined the following test for evaluating a variance
between the allegations in the indictment and the proof presented at trial:

       “Unless substantial rights of the defendant are affected by a variance, he has
       suffered no harm, and a variance does not prejudice the defendant’s substantial
       rights (1) if the indictment sufficiently informs the defendant of the charges
       against him so that he may prepare his defense and not be misled or surprised
       at trial, and (2) if the variance is not such that it will present a danger that the
       defendant may be prosecuted a second time for the same offense; all other
       variances must be considered to be harmless error.”

Mayes, 854 S.W.2d at 640 (quoting Moss, 662 S.W.2d at 592).

       Upon review, we conclude that the indictment and the evidence substantially
corresponded. Count 3, which included a detailed description of the factual allegations
supporting the offense and referenced the especially aggravated kidnapping statute,

                                               -8-
sufficiently informed the Petitioner of the charge against him and protected him against
double jeopardy. Moreover, the trial transcript shows that the State did not attempt to rely
upon “theories and evidence that were not fairly embraced in the allegations made in the
indictment.” Id. Accordingly, we conclude that trial counsel was not ineffective for failing
to object to the variance at trial. See Roger Lee Wilson v. State, No. E2003-01378-CCA-R3-
PC, 2004 WL 1533830, at *8 (Tenn. Crim. App. 2004) (concluding that trial counsel was not
ineffective in failing to raise a variance issue when the Petitioner received sufficient notice
of the charges against him, which allowed him to adequately prepare for trial).

        Second, the Petitioner claims that trial counsel provided ineffective assistance of
counsel by failing to interview Nathan Holden, his co-defendant, to develop him as a
potential witness. He notes that Holden’s statement, which was admitted at the post-
conviction hearing, stated that the Petitioner was innocent of the charges. In addition, he
asserts that although trial counsel stated that she discussed the Petitioner’s case with
Holden’s attorney, she never specifically asked Holden’s attorney whether Holden would
testify on the Petitioner’s behalf. The State responds that the Petitioner has waived this issue
by failing to provide any legal authority or substantive argument in support of this issue. See
Tenn. Ct. Crim. App. R. 10(b). In any event, the State contends that the evidence at the post-
conviction hearing established that Holden’s case had not been settled at the time of the
Petitioner’s trial and that Holden’s testimony would not have been beneficial to the
Petitioner’s case. We agree with the State that the Petitioner has waived review of this issue.

       The Petitioner’s brief provides no substantive argument, no citations to authority, and
no references to the record regarding this claim. Accordingly, we conclude that the
Petitioner has waived review of this issue. See id. (“Issues which are not supported by
argument, citation to authorities, or appropriate references to the record will be treated as
waived in this court.”). Waiver notwithstanding, we conclude that the record fully supports
the post-conviction court’s finding that Holden’s testimony would not have been helpful to
the Petitioner’s case.

        II. Coram Nobis Relief. The Petitioner argues that Michael Babb’s affidavit, which
recanted Babb’s trial testimony identifying him as the gunman and was not discovered until
after his trial, is newly discovered evidence entitling him to coram nobis relief. The
Petitioner asserts that he was without fault in presenting this evidence at trial and that had
this affidavit had been presented to the jury, it may have changed the outcome of his trial
because it discredited Babb, one of the State’s main identification witnesses. The State
responds that the Petitioner has failed to establish that Babb’s affidavit warrants coram nobis
relief. We agree.




                                              -9-
        A writ of error coram nobis is available to convicted defendants. T.C.A. § 40-26-
105(a). However, a writ of error coram nobis is an “extraordinary procedural remedy” that
“fills only a slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672
(Tenn. 1999) (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). “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 16, 167 (Tenn. 1966)). “The
decision to grant or deny a petition for the writ of error coram nobis on the ground of
subsequently or newly discovered evidence rests within the sound discretion of the trial
court.” Hart, 911 S.W.2d at 375 (citations omitted).

      Relief by petition for writ of error coram nobis is provided for in Tennessee Code
Annotated section 40-26-105. The statute provides, in pertinent part:

       (b) 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 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.

       (c) The issue shall be tried by the court without the intervention of a
       jury, and if the decision be in favor of the petitioner, the judgment
       complained of shall be set aside and the defendant shall be granted a
       new trial in that cause. . . .

T.C.A. § 40-26-105(b), (c).

        The Petitioner’s petition for writ of error coram nobis is based solely on his claim that
Babb recanted his testimony in the affidavit he signed after the Petitioner’s trial. In certain
circumstances, recanted testimony can constitute newly discovered evidence entitling a
Petitioner to coram nobis relief. Mixon, 983 S.W.2d at 672 n.16. This court has held that
a trial court should grant coram nobis relief on the basis of newly discovered recanted
testimony if:




                                              -10-
       (1) the trial court 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 Mixon, 983 S.W.2d at
673 n.17).

        The statute of limitations for a petition for writ of error coram nobis is one year from
the date the judgment becomes final in the trial court. T.C.A. § 27-7-103; Mixon, 983
S.W.2d at 671. For the purposes of a coram nobis petition, a judgment becomes final thirty
days after the entry of the trial court’s judgment if no post-trial motions are filed or upon
entry of an order disposing of a timely post-trial motion. Mixon, 983 S.W.2d at 670 (citing
Tenn. R. App. P. 4(c); State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996)). Due
process considerations may toll the one-year statute of limitations when a petitioner seeks a
writ of error coram nobis. Harris v. State, 301 S.W.3d 141, 145 (Tenn. 2010). “[B]efore a
state may terminate a claim for failure to comply with procedural requirements such as
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 State has the burden of raising the statute of limitations bar as an affirmative
defense in a coram nobis proceeding. Harris, 301 S.W.3d at 144 (citing Harris v. State, 102
S.W.3d 587, 593 (Tenn. 2003)). Whether a claim is barred by the statute of limitations is a
question of law, which this court reviews de novo. Id. (citing Brown v. Erachem Comilog,
Inc., 231 S.W.3d 918, 921 (Tenn. 2007)). Because the State did not raise the bar of the
statute of limitations as an affirmative defense, we will proceed as if the statute of limitations
does not preclude our consideration of this case.

       At trial, Babb identified the Petitioner as the gunman in this case. However, Babb’s
affidavit, which was signed more than three years after the Petitioner’s trial, states that Babb
was unable to identify the Petitioner as one of the victim’s assailants and that he identified
the Petitioner only after he was threatened and coerced by Detective Morris. Although
Babb’s testimony at the post-conviction hearing was extremely confusing regarding the
affidavit, Babb unequivocally stated that he had testified truthfully at the Petitioner’s trial.




                                              -11-
        The Petitioner claims that Babb’s affidavit is newly discovered evidence and that had
this affidavit had been presented to the jury, the outcome of his trial may have been different.
We disagree. Babb unequivocally stated at the post-conviction hearing that his trial
testimony identifying the Petitioner as the gunman in the victim’s case was truthful. In
addition, Babb testified that he did not read the contents of the affidavit before signing it.
Moreover, Elmore also identified the Petitioner as one of the victim’s assailants.
Accordingly, we conclude that the affidavit is not newly discovered evidence warranting
coram nobis relief and that the trial court did not abuse its discretion in dismissing the
petition for writ of error coram nobis. The Petitioner is not entitled to relief.

                                       CONCLUSION

       We affirm the denial of post-conviction relief and the denial of coram nobis relief.




                                                     ___________________________________
                                                     CAMILLE R. McMULLEN, JUDGE




                                              -12-
