                                                                                        05/21/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs April 16, 2019

                ASHLEY M. COOK v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Bedford County
                      No. 16258    Forest Durard, Jr., Judge


                           No. M2018-01149-CCA-R3-ECN


The petitioner, Ashley M. Cook, appeals the summary dismissal of her petition for writ of
error coram nobis, which petition challenged her 2008 convictions of first degree murder
and conspiracy to commit first degree murder. Discerning no error, we affirm.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Ashley M. Cook, Nashville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Robert J. Carter, District Attorney General; and Mike Randles, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

              A Bedford County Circuit Court jury convicted the petitioner of first degree
premeditated murder and conspiracy to commit first degree murder for her role in the
death of the victim, William Ross. This court summarized the evidence supporting the
petitioner’s convictions in our consideration of the sufficiency of the evidence on direct
appeal:

             [T]he record shows that during the weeks leading up to the
             murder on February 14, 2007, [the petitioner] participated in
             several conversations with Justin Young and Kimberly Ross
             about killing the victim. A plan was then developed during
             which [the petitioner] would take a cab to the Golden Gallon,
             walk from the store to the victim’s residence, and use a ladder
to climb in Mr. Young’s bedroom window. [The petitioner]
would then be given a gun to shoot the victim while he was in
bed asleep. Mr. Young testified that he was supposed to wipe
down the gun and place it in the gun cabinet with a clip in it
waiting for [the petitioner]. Mr. Young and Mrs. Ross were
then to be tied up, and they would tell police that two black
men broke into the residence looking for Jimmy Whitmire, a
former resident. After the shooting, [the petitioner] was
supposed to leave town in Mrs. Ross’ Nissan Versa.

       The plan went into action on the evening of February
13, 2007, and continued into the early morning hours of
February 14, 2007. The plan was originally supposed to have
occurred the previous night, but [the defendant] could not be
there. After the victim left for work on the morning of
February 13, Mr. Young loaded a .380 pistol with five
rounds, wiped it down, and placed it back inside the gun
cabinet with one door left slightly ajar. He and Mrs. Ross had
several phone conversations with [the petitioner] throughout
the day to make sure that she was still coming over and to let
her know that everything was “ready to go” when she arrived.
[The petitioner] indicated that she would be there around
12:00 to 12:30 a.m. Although not part of the plan, [the
petitioner] called two black men, Rodney Tinnel and Floyd
Vinson, and arranged for them to be at her residence at the
time of the murder.

         At 12:54 a.m., while Mr. Tinnel and Mr. Floyd were
still at her trailer, [the petitioner] dressed in dark clothing and
called for an MTS cab to pick her up and take her to the
Golden Gallon. [The petitioner] then left the store without
paying her cab fare and walked to the victim’s residence. She
climbed up the ladder to Mr. Young’s window wearing purple
latex gloves, and he helped pull her inside. Mr. Young then
gave her some money and the keys to Mrs. Ross’ Nissan
Versa. They walked down the hall to the living room where
Mrs. Ross was waiting. Mrs. Ross then took the .380 pistol
out of the gun cabinet and showed [the petitioner] how to use
it. Mrs. Ross chambered a round so that all [the petitioner]
had to do was “point and shoot.” [The petitioner] then tied
Mr. Young’s hands and feet with bailing twine, and she used
                                -2-
             a phone cord to tie Mrs. Ross. Mr. Young positioned himself
             on the floor between the chair and the hallway, and Mrs. Ross
             laid on the couch with her cell phone on the arm of the couch.
             [The petitioner] walked over to the bedroom where the
             unarmed victim was sleeping, pushed the door open with her
             foot, and began shooting. The three fatal shots hit the
             victim’s left forehead, right chest, and left flank above the
             kidney. [The petitioner] then left as planned in the Nissan.
             Mrs. Ross called 911 and when police arrived, she and Mr.
             Young told them that two black men broke into the residence
             looking for Jimmy Whitmire and shot the victim. The victim
             was still alive when police arrived, and at no time did [the
             petitioner], Mr. Young, or Mrs. Ross render aid to him.

                     After shooting the victim, [the petitioner] acted with
             calmness and in taking steps to conceal her crime. She tossed
             the purple gloves out of the car, and she abandoned the car in
             a church parking lot. [The petitioner] arrived home and hid
             the .380 pistol underneath her mattress. In her first interview
             with Agent Wesson, [the petitioner] denied any involvement
             in the murder. She eventually told him about the plan to kill
             the victim, and she confessed [to] the murder. Although [the
             petitioner] claims that the dominion and control exerted over
             her by Mrs. Ross negates the element of premeditation, the
             record does not support this claim. Mr. Young testified that
             although Mrs. Ross could be persuasive and provided both
             him and [the petitioner] with financial assistance, she did not
             exert any undue influence over them. [The petitioner] herself
             testified at one point that Mrs. Ross never “personally” asked
             [the petitioner] to kill the victim, and she never thought that
             Mrs. Ross was serious about killing the victim.

State v. Ashley Mai Cook, No. M2009-00136-CCA-R3-CD, slip op. at 20-22 (Tenn.
Crim. App., Nashville, Feb. 24, 2011) (Cook I). This court affirmed the petitioner’s
convictions and accompanying sentence of life plus 20 years on direct appeal. See id.,
slip op. at 1, 31. The petitioner later filed a timely but unsuccessful petition for post-
conviction relief, and this court affirmed the denial of post-conviction relief. See Ashley
Mai Cook v. State, No. M2012-01876-CCA-R3-PC (Tenn. Crim. App., Nashville, May
23, 2013) (Cook II).



                                            -3-
               In May 2018, the petitioner filed a petition for writ of error coram nobis in
the Bedford County Circuit Court, alleging that newly discovered evidence in the form of
a statement from her co-defendant, Kimberly Ross, inculpating Justin Young in the
murder of the victim and documentary “information obtained from the Emergency
Medical Technician - Basic: National Standard Curriculum” entitled her to a new trial.
The petitioner claimed both that Mr. Young had killed the victim and that the victim died
as a result of medical error.

              The court stated that it was “unsatisfied with the veracity of the letter”
purporting to be from Mrs. Ross, observing that although the document was “purportedly
signed by Mrs. Ross, it is undated and contains no other indicia of reliability, such as
being notarized[,] and the origins of the statement are unknown or how long it has been
in existence.” In a footnote, the court further observed, “The entire statement is
preposterous anyway.” The court also deemed any claim regarding the statement to be
untimely given that the petitioner did not indicate when she had obtained the statement.

               Regarding the emergency medical technician’s manual, the coram nobis
court found that the petitioner had failed to establish that this information was
unavailable at the time of trial or that it could not have been obtained through the exercise
of due diligence. The court also concluded that, even if, as the petitioner claimed, the
victim’s death was hastened by improper medical treatment, the petitioner would not be
entitled to relief given that the victim’s death was the natural and probable result of the
petitioner’s having shot him multiple times.

              In this appeal, the petitioner contends that the coram nobis court erred by
summarily dismissing her petition. The State asserts that this court should dismiss the
appeal as untimely. The State avers, in the alternative, that the coram nobis court did not
err.

              Tennessee Rule of Appellate Procedure 3 requires the notice of appeal to be
filed within 30 days of the entry of the order being appealed. Tenn R. App. P. 4(a). The
order summarily dismissing the coram nobis petition bears a file stamp date of May 14,
2018, and the petitioner’s notice of appeal was filed on June 20, 2018. “[I]n all criminal
cases the ‘notice of appeal’ document is not jurisdictional and the timely filing of such
document may be waived in the interest of justice.” Tenn. R. App. P. 4(a). Given that
the court’s order was delivered to the pro se petitioner via United States Mail, it is not
clear when the petitioner actually received the court’s order. Moreover, the petitioner’s
notice of appeal and certificate of service both indicate that the document was signed and
mailed on June 8, 2018, which would have been within 30 days of the court’s order.
Even if the petitioner’s notice of appeal was late, a delay of six days does not seem

                                             -4-
particularly egregious under these circumstances. Consequently, we elect to waive the
timely filing of the notice of appeal in this case.

               In support of her claim to coram nobis relief, the petitioner directs this
court’s attention to what she deems newly discovered evidence in the form of a letter that,
the petitioner asserts, is from her co-defendant and a manual describing the appropriate
standard of care to be used when caring for patients with injuries like those inflicted on
the victim.

             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) (citation omitted). Coram nobis relief is provided for in criminal cases by
statute:

              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.

T.C.A. § 40-26-105(b) (2006); see State v. Vasques, 221 S.W.3d 514, 525-28 (Tenn.
2007) (describing standard of review as “whether a reasonable basis exists for concluding
that had the evidence been presented at trial, the result of the proceedings might have
been different” (citation omitted)). The grounds for seeking a petition for writ of error
coram nobis are not limited to specific categories but may be based upon any “newly
discovered evidence relating to matters which were 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. T.C.A. § 40-36-105(b).

             The statute of limitations for filing a petition for writ of error coram nobis
is one year. See T.C.A. § 27-7-103; Mixon, 983 S.W.2d at 670. “To accommodate due
process concerns, the one-year statute of limitations may be tolled if a petition for a writ
of error coram nobis seeks relief based upon new evidence of actual innocence
discovered after expiration of the limitations period.” Nunley v. State, 552 S.W.3d 800,
                                             -5-
828-29 (Tenn. 2018) (citations omitted). The petition must establish on its face either the
timeliness of the petition or must “set forth with particularity facts demonstrating that the
prisoner is entitled to equitable tolling of the statute of limitations.” Id. at 829.

              Although the decision to grant or deny coram nobis relief rests within the
sound discretion of the trial court, see Vasques, 221 S.W.3d at 527-28, “[w]hether due
process considerations require tolling of a statute of limitations is a mixed question of law
and fact, which we review de novo with no presumption of correctness,” Harris v. State,
301 S.W.3d 141, 145 (Tenn. 2010).

               The petitioner acknowledged in her petition that she had filed outside the
one-year statute of limitations but argued that she was entitled to due process tolling of
the statute of limitations because her “sentences are clearly within the range of sentences
for which the appellate courts have found the considerations of due process applicable to
permit a petition for relief beyond the applicable statute of limitations.” This statement
misapprehends the availability of due process tolling. The length of a particular sentence
has no bearing on the issue of due process tolling. Instead, the proper inquiry is whether
the petitioner has been “provided an opportunity for the presentation of claims at a
meaningful time and in a meaningful manner.” Nunley, 522 S.W.3d at 830 (citation
omitted).

              As the coram nobis court correctly observed, the document purporting to be
the statement of co-defendant Kimberly Ross bears no date, and the petitioner does not
indicate when she became aware of its existence. Because the petitioner has failed to
plead specific facts to support a finding of due process tolling relative to this claim, the
petition was subject to summary dismissal as time barred. Moreover, assuming for the
sake of argument that the petitioner came into possession of this document within one
year of filing her coram nobis petition, she still would not be entitled to coram nobis
relief because no “reasonable basis exists for concluding that had the evidence been
presented at trial, the result of the proceedings might have been different.” Vasques, 221
S.W.3d at 525-28 (citation omitted). The handwritten document, purportedly prepared by
Mrs. Ross, described a series of events that is so utterly at odds with all of the proof
adduced at the petitioner’s trial as to be, as the coram nobis court observed, preposterous.
For example, the writer claimed that Mr. Young shot the victim and bound Mrs. Ross, but
when the police arrived, Mr. Young’s “hands and feet were tied with bailing twine.”
Cook I, slip op. at 2. Contrary to the convoluted tale provided in the document, Mrs.
Ross told responding officers “that she and the victim were in bed when ‘two black males
entered the home, one of which had come in their bedroom and asked where is Jimmy
and William,’” and “then shot the victim, tied her up, and left the residence.” Id. “Mr.
Young ‘told pretty much the same story.’” Id., slip op. at 4. The petitioner sent two text
messages to Mrs. Ross’s cellular telephone shortly after the shooting, first indicating
                                             -6-
“that Mrs. Ross ‘told’ on her and that she was going to jail for murder” and the second
indicating that the petitioner “would tell everything if Mrs. Ross did not help her.” Id.,
slip op. at 4-5. Later, both Mr. Young and Mrs. Ross separately implicated the petitioner
in the shooting. Most importantly, perhaps, the petitioner admitted both to the police and
at trial that she shot the victim. The murder weapon was discovered under her mattress.
We agree with the coram nobis court that the unsworn statement is utterly lacking in
veracity or any indicia of reliability. In consequence, it cannot avail the petitioner of
coram nobis relief, regardless of the timing of its alleged discovery.

               Similarly, the information contained within the medical manual cannot
avail the petitioner of the relief she desires. Although the petitioner alleged that she only
discovered this document in December 2017, less than one year before she filed her
petition for writ of error coram nobis, she failed to show that she could not have
discovered it earlier with the exercise of due diligence. See Mixon, 983 S.W.2d at 670.
Moreover, no evidence established a cause of the victim’s death other than the three
gunshot wounds inflicted by the petitioner. Although the victim was still alive when
emergency medical personnel arrived, he was bleeding copiously and leaking “gray brain
matter” from a gunshot wound above his left eye. Cook I, slip op. at 3. Emergency
medical workers were initially unable to intubate the victim, see id., but nothing suggests
that this initial failure caused or hastened the victim’s death. In consequence, the
petitioner cannot establish that a “reasonable basis exists for concluding that had the
evidence been presented at trial, the result of the proceedings might have been different.”
Vasques, 221 S.W.3d at 525-28 (citation omitted).

               Based upon the foregoing analysis, we affirm the judgment of the coram
nobis court.


                                                    _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




                                             -7-
