                                                                                           08/28/2020
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs July 15, 2020

                RONALLEN HARDY v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Rutherford County
                    No. F-58763-C       David M. Bragg, Judge
                     ___________________________________

                           No. M2019-02100-CCA-R3-ECN
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In this consolidated appeal, Petitioner, Ronallen Hardy, appeals the summary dismissal of
his petitions for post-conviction and error coram nobis relief after being convicted of first
degree murder, felony murder, especially aggravated robbery, aggravated burglary,
conspiracy to commit especially aggravated robbery, and conspiracy to commit
aggravated burglary and resulting sentence of life without parole. See State v. Ronallen
Hardy, M2008-00381-CCA-R3-CD, 2009 WL 2733821, at *1 (Tenn. Crim. App. Aug.
31, 2009), no perm. app. filed. The trial court merged the murder convictions and this
Court merged the conspiracy convictions on direct appeal. Id. After a review of the
record, the parties’ briefs, and applicable authorities, we affirm the judgments of the trial
court.

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

TIMOTHY L. EASTER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT L. HOLLOWAY, JR., JJ., joined.

Ronallen Hardy, Nashville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Jennings H. Jones, District Attorney General, for the appellee, State of
Tennessee.

                                        OPINION

       At Petitioner’s jury trial nearly thirteen years ago, Petitioner’s taped statement
indicated that he, Aldrick “Scoot” Lillard, and Vanessa Claude went to the victim’s house
to take the victim’s guns. State v. Ronallen Hardy, 2009 WL 2733821, at *1. Petitioner
and Ms. Claude waited in the car while Mr. Lillard went into the house. Id. They heard
two gunshots and got out of the car to see what happened. Id. Petitioner saw the victim
after he had been shot. However, Petitioner claimed he did not go inside the house. Id.
Petitioner stated that Ms. Claude pulled the car into the yard and that Mr. Lillard spent
around forty-five minutes loading guns from the victim’s home into the car. Id. Mr.
Lillard told Petitioner that Mr. Lillard shot the victim because he was a “snitch.” Id.1

       Ms. Claude pled guilty to several charges. Id. Petitioner and Mr. Lillard were
tried separately. At his trial, Mr. Lillard was convicted of first degree murder, felony
murder, especially aggravated robbery, aggravated burglary, conspiracy to commit
aggravated burglary, and conspiracy to commit aggravated robbery and the trial court
merged the felony murder conviction into the first degree murder conviction and
sentenced Mr. Lillard to life without parole. State v. Aldrick Lillard, 2009 WL 2951270,
at *1. Petitioner was convicted of the same offenses. The trial court merged the murder
convictions and sentenced Petitioner to an effective sentence of life without parole plus
twenty-two years. State v. Ronallen Hardy, 2009 WL 2733821, at *1. On direct appeal,
this Court merged Petitioner’s conspiracy convictions into a single conviction but
affirmed the remaining judgments of the trial court. Id. at *11.

        Petitioner sought timely post-conviction relief on the basis of ineffective
assistance of counsel. In the petition, he claimed that one of his lawyers failed to
adequately communicate with him and withdrew prior to trial, and that another lawyer
failed to call witnesses or present mitigation evidence at sentencing. See Ronallen Hardy
v. State, No. M2011-00497-CCA-R3-PC, 2012 WL 76896, at *1 (Tenn. Crim. App. Jan.
9, 2012), perm. app. denied (Tenn. May 10, 2012). The post-conviction court denied
relief. Petitioner raised additional allegations in his petition for post-conviction relief but
failed to pursue them on appeal. This Court affirmed the denial of post-conviction relief
and the Supreme Court denied permission to appeal. Id.

        Petitioner filed a petition for writ of error coram nobis on September 26, 2019. In
the petition, he claimed that he was entitled to relief based on newly discovered evidence
that he could not have presented previously. Specifically, Petitioner claimed that a
television documentary entitled “For My Man” consisted of newly discovered evidence
about his case. According to Petitioner, the documentary described an intimate
relationship between his co-defendants, Ms. Claude and Mr. Lillard, about which he was
unaware at trial. Moreover, Petitioner claimed that the documentary revealed that the co-
defendants planned to kill the victim for being a snitch, planned to make the murder look
like “a robbery gone wrong,” and planned to blame Petitioner for the murder. Petitioner

        1
          At Mr. Lillard’s trial, Mr. Lillard claimed Petitioner was the shooter. State v. Aldrick Lillard,
No. M2008-00575-CCA-R3-CD, 2009 WL 2951270, at *3-4 (Tenn. Crim. App. Sept. 15, 2009), perm.
app. denied (Tenn. Mar. 15, 2010).
                                                  -2-
also claimed that the State withheld exculpatory evidence from a pretrial interview with
Ms. Claude that would have given Petitioner knowledge that Ms. Claude and Mr. Lillard
planned to frame him for the murder.

        Petitioner insisted that even though the television documentary originally aired in
2015, he was entitled to equitable tolling on the error coram nobis petition because he
could not have known about this evidence. Petitioner claimed that he was not made
aware of the documentary until March 31, 2019, when someone told Petitioner’s brother
about the documentary, who in turn told Petitioner. The trial court summarily dismissed
the petition for error coram nobis relief on November 14, 2019, after determining that the
statute of limitations had expired and that the information from the documentary was not
newly discovered. Petitioner appealed on November 25, 2019.

       On January 6, 2020, while the error coram nobis appeal was still pending,
Petitioner filed a second petition for post-conviction relief. In this petition, Petitioner
again claimed that he was entitled to due process tolling of the statute of limitations
because of newly discovered evidence and because of the State’s failure to disclose
exculpatory evidence prior to trial.

       The post-conviction court summarily denied the petition for post-conviction relief
after determining that it was Petitioner’s second petition for post-conviction relief, that
the petition was untimely, and that Petitioner was not entitled to due process tolling
because the grounds for relief were not based on a new constitutional right or new
scientific evidence of Petitioner’s actual innocence.

       Petitioner filed separate appeals from both the denial of error coram nobis relief
and the denial of post-conviction relief. On motion of Petitioner, the appeals were
consolidated by this Court on appeal.

                                        Analysis
                                   Error Coram Nobis

       On appeal, Petitioner argues that the error coram nobis court erred in concluding
that the television documentary was not newly discovered evidence, that the State
withheld exculpatory evidence of the relationship between Ms. Claude and Mr. Lillard,
and that Petitioner was not entitled to due process tolling of the statute of limitations.
Petitioner also argues that the court erred in summarily dismissing the petition. The State
disagrees.

       A writ of error coram nobis lies “for subsequently or newly discovered evidence
relating to matters which were litigated at the trial if the judge determines that such
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evidence may have resulted in a different judgment, had it been presented at the trial.”
T.C.A. § 40-26-105(b); State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995).
The writ of error coram nobis is “an extraordinary procedural remedy,” designed to fill
“only a slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672
(Tenn. 1999) (emphasis in original). In order to seek coram nobis relief, a petitioner must
“establish[] that the petitioner 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). To be considered
“without fault,” the petitioner must 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). The error coram nobis court will then determine “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. at 526.

        A petition for error coram nobis relief must be filed within one year after the
judgment becomes final. T.C.A. § 27-7-103. For the purposes of error coram nobis
relief, a judgment becomes final thirty days after the 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 670. Whether a claim is barred by an applicable
statute of limitations is a question of law, which we review de novo. Harris v. State, 301
S.W.3d 141, 144 (Tenn. 2010) (citing Brown v. Erachem Comilog, Inc., 231 S.W.3d 918,
921 (Tenn. 2007)). The statute of limitations for a writ of error coram nobis is not an
affirmative defense that must be specifically raised by the State. Nunley v. State, 552
S.W.3d 800, 828 (Tenn. 2018).

        After reviewing the record, we conclude that the error coram nobis court did not
abuse its discretion by summarily dismissing the petition. The television documentary
provided by Petitioner does not constitute newly discovered evidence for error coram
nobis purposes. Newly discovered evidence “must be (a) evidence of facts existing, but
not yet ascertained, at the time of the original trial, (b) admissible, and (c) credible.”
Nunley, 442 S.W.2d at 816 (quoting Payne v. State, 493 S.W.3d 478, 485 (Tenn. 2016)).
Indeed, the petition itself must show why the evidence could not have been discovered
with the exercise of reasonable diligence and how the evidence, if admitted at trial, may
have resulted in a different judgment. Id. (internal citation omitted). Moreover, if the
newly discovered evidence is cumulative or does nothing other than contract or impeach,
a petitioner is not entitled to error coram nobis relief. Wlodarz v. State, 361 S.W.3d 490,
506 (Tenn. 2012), abrogated on other grounds by Frazier v. State, 495 S.W.3d 246
(Tenn. 2016). Here, Petitioner claims that he only discovered that the co-defendants were
in a romantic relationship, that the co-defendants planned to use the robbery as a way to
kill the victim and pin the murder on Petitioner, and that Ms. Claude agreed not to testify
at Petitioner’s trial that Mr. Lillard was the shooter after he viewed the documentary. In

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other words, Petitioner claimed that these were all pieces of newly discovered evidence.
We disagree.

         At Petitioner’s trial there was testimony that Mr. Lillard told Petitioner that Mr.
Lillard shot the victim because he was a “snitch.” State v. Ronallen Hardy, 2009 WL
2733821, at *1. Petitioner now claims that he did not learn this until he watched the
documentary. Moreover, the television true-crime show relied upon by Petitioner, is not
the type of credible evidence that would generally be considered newly discovered.
Petitioner attached documents to the petition for error coram nobis relief in the form of
affidavits from Petitioner’s brother and friend to establish that the television documentary
was newly discovered. These affidavits establish merely that the affiants watched the
television documentary and told Petitioner about its existence, not that the information
contained in the television documentary is credible or that the documentary contained
information about which Petitioner had no prior knowledge. Additionally, Petitioner
included a letter from the district attorney dated September 2018 in which the State
informed Petitioner that they had located documents from Ms. Claude’s case and that
Petitioner could receive a copy of the file if he paid for the cost of copies. We fail to see
how this supports Petitioner’s assertion that the State concealed exculpatory evidence.

        Lastly, the petition does not set forth any information that was not known to
Petitioner at the time of trial. The trial transcript excerpt included with the petition
indicates that there was a relationship between the co-defendants, that the murder of the
victim was committed because the victim was a “snitch,” and that Petitioner was aware of
the plan at the time of the robbery and murder. While we acknowledge that the one-year
statute of limitations for error coram nobis relief can be tolled to “accommodate due
process concerns” if the petition for error coram nobis relief is “based upon new evidence
of actual innocence discovered after expiration of the limitations period,” a petition is
“not entitled to equitable tolling to pursue a patently non-meritorious ground for relief.”
Nunley, 552 S.W.3d at 828-29 (internal citations omitted). In our view, equitable tolling
does not apply in this case. None of the information alleged in the petition is either new
or credible evidence and the claims are patently non-meritorious. Petitioner is not entitled
to relief.

                                 Post-conviction Petition

       Petitioner claims on appeal that the trial court erred by determining that the post-
conviction petition should be summarily dismissed because his Brady claim was later
arising and his second post-conviction petition requires courts to disregard the one
petition requirement. The State disagrees.



                                            -5-
       The Post-Conviction Procedure Act “contemplates the filing of only one (1)
petition for post-conviction relief. If a prior petition has been filed which was resolved
on the merits by a court of competent jurisdiction, any second or subsequent petition shall
be summarily dismissed.” T.C.A. § 40-30-102(c). “In no event may more than one (1)
petition for post-conviction relief be filed attacking a single judgment.” Id. A petitioner
can reopen a prior post-conviction proceeding if he satisfies the requirements of
Tennessee Code Annotated section 40-30-117(a):

       (1) The claim in the motion is based upon a final ruling of an appellate
       court establishing a constitutional right that was not recognized as existing
       at the time of trial, if retrospective application of that right is required. The
       motion must be filed within one (1) year of the ruling of the highest state
       appellate court or the United States supreme court establishing a
       constitutional right that was not recognized as existing at the time of trial;
       or

       (2) The claim in the motion is based upon new scientific evidence
       establishing that the petitioner is actually innocent of the offense or
       offenses for which the petitioner was convicted; or

       (3) The claim asserted in the motion seeks relief from a sentence that was
       enhanced because of a previous conviction and the conviction in the case in
       which the claim is asserted was not a guilty plea with an agreed sentence,
       and the previous conviction has subsequently been held to be invalid, in
       which case the motion must be filed within one (1) year of the finality of
       the ruling holding the previous conviction to be invalid; and

       (4) It appears that the facts underlying the claim, if true, would establish by
       clear and convincing evidence that the petitioner is entitled to have the
       conviction set aside or the sentence reduced.

        Petitioner does not dispute that he had already filed a petition for post-conviction
relief and/or that his first petition was resolved on the merits. See Ronallen Hardy v.
State, 2012 WL 76896, at *4-5. Moreover, Petitioner did not allege any of the grounds
listed in section 40-30-117(a) that would entitle him to reopen his prior post-conviction
proceedings. There is no need for further inquisition. The post-conviction court properly
dismissed the petition. Petitioner is not entitled to relief.

                                         Conclusion

       For the foregoing reasons, the judgments of the trial court are affirmed.
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 ____________________________________
 TIMOTHY L. EASTER, JUDGE




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