        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs November 4, 2014

                  LEON FLANNEL v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 03-07354     Carolyn W. Blackett, Judge




             No. W2014-00181-CCA-R3-ECN - Filed December 17, 2014




The Petitioner, Leon Flannel, was convicted of murder in the perpetration of a theft and
premeditated murder. In this appeal from the trial court’s denial of his petition for writ of
error coram nobis, the Petitioner argues that the individual tests performed by the defense’s
expert witness, along with their results, should have been introduced at trial to bolster the
Petitioner’s diminished capacity defense. Upon review, we find that the petition for writ of
error coram nobis is barred by the statute of limitations. Additionally, we find that the trial
court did not abuse its discretion when it denied relief on the merits.

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

R OBERT L. H OLLOWAY, J R., J., delivered the opinion of the Court, in which T HOMAS T.
W OODALL, P.J., and A LAN E. G LENN, J., joined.

Eric Mogy, Memphis, Tennessee, for the appellant, Leon Flannel.

Robert E. Cooper, Attorney General and Reporter; Lacy Wilber, Senior Counsel; Amy P.
Weirich, District Attorney General; and Paul Hagerman, Assistant District Attorney General,
for the appellee, State of Tennessee.

                                         OPINION

        Leon Flannel (“the Petitioner”) appeals from the Shelby County Criminal Court’s
denial of his petition for writ of error coram nobis. On appeal, the Petitioner argues that the
trial court erred when it found that the evidence presented at the error coram nobis hearing
would not have resulted in a different judgment at trial. We conclude that the statute of
limitations bars relief in this case, and even if the petition had been filed timely, the trial
court did not abuse its discretion in denying relief on the merits.

                                Factual and Procedural Background

       On March 23, 2007,1 a jury convicted the Petitioner for one count of murder in
perpetration of a theft and one count of premeditated murder. State v. Leon Flannel, No.
W2007-00678-CCA-R3-CD, 2008 WL 4613829, at *1 (Tenn. Crim. App. Oct. 13, 2008),
perm. app. denied (Tenn. March 23, 2009). The convictions were merged, and the Petitioner
was sentenced to life in prison. Id. This Court affirmed the convictions on direct appeal.
Id. The Petitioner subsequently filed a petition for post-conviction relief alleging ineffective
assistance of counsel, and this Court affirmed the denial of post-conviction relief. Leon
Flannel v. State, No. W2011-00942-CCA-MR3-PC, 2012 WL 3156599, at *1 (Tenn. Crim.
App. Aug. 1, 2012).

       On July 24, 2013, the Petitioner filed a pro se petition for writ of error coram nobis.
Counsel was appointed, and an amended petition was filed. In his amended petition, the
Petitioner claimed that he was never informed of Dr. Fred Steinberg’s, the defense’s expert
witness, recommendation that the Petitioner may have been able to use diminished capacity
as a defense at trial. As his newly discovered evidence, the Petitioner attached a report,
written by Dr. Steinberg, which summarizes the expert’s findings based on a number of
psychological tests he performed on the Petitioner. The Petitioner claimed that he never
received copies of the individual tests Dr. Steinberg performed and that those tests were not
introduced at trial. Had the tests and their results been introduced at trial, the Petitioner
argued that the jury would have been able to conclude that the Petitioner was suffering from
diminished capacity and it is likely that the Petitioner would not have been convicted as
charged.2 After a hearing, the trial court denied the petition, and the Petitioner filed a timely
appeal.

                                             Trial Proceedings

       At trial, the State introduced two different confessions from the Petitioner. The first
was a statement the Petitioner gave to the police, which was transcribed and then signed by


        1
         The date of the Petitioner’s conviction was not included in the opinion from the direct appeal, and
the judgment is not included in the record on this appeal. However, the trial court’s order denying error
coram nobis relief provides the date of conviction.
        2
          We note that the Petitioner did not include the individual tests or their results in the record. Instead,
he relies on Dr. Steinberg’s summary report.

                                                       -2-
the Petitioner. Leon Flannel, 2008 WL 4613829, at *3. In this statement, the Petitioner
admitted to shooting the victim multiple times after the victim made unwanted sexual
advances toward him. Id. He said that the victim had previously shown him a gun that the
victim kept on a dresser. Id. The Petitioner asked the victim if he could see the gun, and
after the victim handed the Petitioner the firearm, the Petitioner “put [as] many holes as I
could put in him.” Id. The Petitioner left the scene with the victim’s keys and cell phone,
but he threw them away in a field next to a gas station. Id.

       The State also introduced a three-page letter, which indicated the Petitioner was the
author. Id. at *4. In that letter, the Petitioner said that he had accompanied the victim to the
victim’s house. Id. They drank a “few beers,” and the victim fell asleep. Id. The Petitioner
found the gun, woke up the victim, and robbed him. Id. When the victim told the Petitioner
that he did not have any money, the Petitioner “hit him six times in the head” and took the
victim’s wallet, the little money he had, his watch, and his cell phone. Id. The Petitioner
called Keeiyona Hill and told her that he was about to kill the victim, but in the letter, the
Petitioner admits that, at the time he called Ms. Hill, the victim was already dead. Id.

       Dr. Steinberg testified at trial as the defense’s expert witness. On direct appeal, this
Court summarized his testimony as follows:

       Dr. Steinberg testified that he administered several tests to determine the
       [Petitioner’s] intelligence, behavior, and cognitive abilities. Dr. Steinberg
       noted that the [Petitioner’s] IQ was 74, which was in the borderline range of
       intellectual functioning. He also tested poorly on several psychological tests,
       indicating that he tended to have poor judgment, impulsive behavior, a short
       attention span, a tendency to favor simple solutions to complex problems, and
       did not perceive the world in the same way most people perceived it. The
       [Petitioner] read reasonably well. He had an eighth grade reading ability, but
       his reading comprehension was at the third grade level.

       Dr. Steinberg testified that the [Petitioner] had suffered head injuries in 1996
       and 2002, requiring hospitalization in a rehabilitation center. However, Dr.
       Steinberg testified that he did not believe the [Petitioner’s] head injuries
       contributed to his mental problems. He noted:

              I found him to have, as I said, poor reality testing. There was no
              evidence of active psychosis at the time I tested him, but he’s
              high risk to relapse under certain circumstances, not only
              because of his cognitive abilities or lack of, but also because of
              his history of psychotic thinking. He’s prone to a lot of

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               impulsivity. He’s very concrete, and, of course, his intellectual
               function was in the borderline area. These things culminate in
               poor judgment.

       On cross-examination, Dr. Steinberg acknowledged that the [Petitioner] had
       no psychosis, was competent at the time of the crime, and was not committable
       as a danger to himself or others. When shown the three page letter, Dr.
       Steinberg acknowledged that the language and tone of the letter differed from
       what the [Petitioner] related to him. Specifically, Dr. Steinberg acknowledged
       that the letter’s indication that the [Petitioner] decided to rob the victim, then
       kill him, did not suggest impulsivity. However, Dr. Steinberg suggested that
       the [Petitioner] wrote this letter in jail and probably took a “macho approach”
       because his circumstances had changed at the time of writing the letter.

Id. at *4-5.

       Based on this evidence, along with testimony from other witnesses, the jury convicted
the Petitioner as charged. Id. at *5.

                               Error Coram Nobis Proceedings

        At the beginning of the error coram nobis hearing, the State argued that the petition
should be dismissed because it had been filed outside the one-year statute of limitations. The
State also noted that the summary report the Petitioner planned to offer as new evidence was
dated October 26, 2005, seven years before the Petitioner filed his petition for writ of error
coram nobis. The Petitioner argued that the one-year statute of limitation began running
when he discovered Dr. Steinberg’s letter in 2012, and since he filed his petition within a
year of its discovery, he had filed within the statute of limitations. The trial court stated that
it believed the statute of limitations had expired, but in the interest of judicial efficiency, it
proceeded with the hearing.

        Trial counsel testified that, prior to trial, he had the Petitioner evaluated by Dr.
Steinberg to determine whether a psychological defense could be raised at trial. Dr.
Steinberg prepared a three-page summary report based on his evaluation of the Petitioner.
In that report, Dr. Steinberg explained the results of various tests he had performed on the
Petitioner and noted that the Petitioner may have a possible diminished capacity defense.
Trial counsel testified that he proceeded to trial on a dual strategy–first, that the Petitioner
suffered from diminished capacity and second, that the Petitioner had overreacted to an
event. Based upon the first strategy, the trial court gave the jury an instruction as to
diminished capacity.



                                               -4-
        Additionally, trial counsel testified that he reviewed Dr. Steinberg’s report with the
Petitioner prior to a motion to suppress hearing in December 2005. Moreover, trial counsel
stated that he gave the Petitioner a copy of all the discovery he had received before the trial.
In 2012, the Petitioner wrote to trial counsel to request a copy of his file. Trial counsel
responded on July 5, 2012, stating that he had already given copies of everything in the file
to the Petitioner. Trial counsel admitted that he did not ask Dr. Steinberg for the actual tests
he performed on the Petitioner. Consequently, he did not give copies of the actual tests to
the Petitioner.

        On cross-examination, trial counsel confirmed that he had received Dr. Steinberg’s
report in October 2005. Additionally, trial counsel stated that Dr. Steinberg testified at trial
as to his opinion of the Petitioner’s mental state and told the jury that his testimony was based
upon his evaluations of the Petitioner. He also noted that Dr. Steinberg testified at a hearing
on a motion to suppress. Moreover, trial counsel stated that he had tried other cases with
mental health defenses before the Petitioner’s, and it is common practice for an evaluating
expert to explain his opinion to the jury and state that he had based that opinion on tests and
evaluations given to the defendant. Trial counsel stated that he had never introduced an
expert’s actual tests into evidence but instead relied on the expert’s testimony.

        The Petitioner testified that he was evaluated by Dr. Steinberg so “[his] attorney could
find a defense for [him].” He claimed he did not receive a copy of any reports Dr. Steinberg
had prepared or any of the tests he had performed on the Petitioner. Additionally, the
Petitioner said that he did not receive a copy of the report summarizing Dr. Steinberg’s
findings before the December 2005 motion to suppress hearing; instead, he claimed he first
saw the summary report when trial counsel sent it to him in June 2012.

       The Petitioner stated that, based on the information he saw in the summary report, he
believed that his defense was not properly argued at trial. He noted that Dr. Steinberg’s
report suggested that the Petitioner had a possible diminished capacity defense, but he
claimed that counsel argued an insanity defense at trial as opposed to diminished capacity.

        On cross-examination, the Petitioner stated that he remembered Dr. Steinberg
testifying at the motion to suppress hearing, but he did not remember the substance of his
testimony. However, the Petitioner stated that he believed Dr. Steinberg testified about the
Petitioner’s mental capacity at both trial and the motion to suppress hearing. The Petitioner
also admitted that trial counsel met with him a couple of times before trial to talk about the
case, but he claimed he did not remember ever discussing a defense strategy during these
meetings.




                                               -5-
        In a written order, the trial court found that it was unlikely that the trial outcome
would had been different had the summary report and test results from Dr. Steinberg’s
evaluation been admitted to bolster a diminished capacity defense. The trial court noted that
the Petitioner had confessed twice to killing the victim, and both of those confessions were
used against the Petitioner at trial. In light of the evidence that was presented to the jury, the
trial court found that it was unlikely that the admission of the report and the individual tests
on which Dr. Steinberg based his opinion would have changed the jury’s verdict.

        Additionally, the trial court found that Dr. Steinberg’s summary report and test results
did not constitute new evidence. The trial court noted that Dr. Steinberg testified at trial as
to his opinions as expressed in his summary report and that those opinions were based upon
findings from the tests he personally administered to the Petitioner. As the ultimate finder
of fact, the jury could choose to believe or disbelieve Dr. Steinberg’s testimony, and the trial
court noted that the verdict reflected the jury’s determination that the Petitioner was not
mentally compromised. Based on these findings, the trial court denied relief.

                                            Analysis

       On appeal, the Petitioner argues that the trial court “failed to understand” that the new
evidence directly related to the Petitioner’s mental capacity at the time of the offense and that
the evidence could have bolstered Dr. Steinberg’s testimony. The State maintains that the
petition is barred by the statute of limitations. Additionally, the State argues that Dr.
Steinberg’s summary report is not newly discovered evidence and even if it were, it would
not have affected the outcome of the trial.

       Tennessee Code Annotated section 40-26-105 provides relief in criminal cases by
petition for error coram nobis and states 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.

Tenn. Code Ann. § 40-26-105(b) (2012). The writ of error coram nobis is “an extraordinary
procedural remedy,” providing relief in only a limited number of cases. State v. Mixon, 983
S.W.2d 661, 672 (Tenn. 1999) (emphasis in original). “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.

                                               -6-
Crim. App. 1995) (quoting State ex rel. Carlson v. State, 407 S.W.2d 165, 167 (Tenn. 1966)).
The decision of whether to grant or deny a petition for writ of error coram nobis on its merits
rests within the sound discretion of the trial court. State v. Vasques, 221 S.W.3d 514, 527-38
(Tenn. 2007).

        Petitions for writ of error coram nobis are subject to a one-year statute of limitations.
Tenn. Code Ann. § 27-7-103 (2000); Harris v. State, 301 S.W.3d 141, 144 (Tenn. 2010).
“The 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, 301 S.W.3d at
144 (citing Mixon, 983 S.W.2d at 670). Calculating the statute of limitations in this manner
is consistent with the “longstanding rule that persons seeking relief under the writ must
exercise due diligence in presenting the claim.” Mixon, 983 S.W.2d at 670; Harris, 301
S.W.3d at 144. The State bears the burden of raising a violation of the statute of limitations
as an affirmative defense. Harris, 301 S.W.3d at 144. Whether a claim is time-barred is a
question of law, which we review de novo. Id. (citing Brown v. Erachem Comilog, Inc.,
S.W.3d 918, 921 (Tenn. 2007)).

        In certain circumstances, due process considerations may require tolling the statute
of limitations. Workman v. State, 41 S.W.3d 100, 101 (Tenn. 2001). To determine whether
due process requires tolling, we must balance the State’s interest in preventing “stale and
groundless” claims against the petitioner’s interest in having a hearing to present newly
discovered evidence which may have led the jury to a different verdict if it had been
presented at trial. Id. at 103. To balance these interests, courts should use a three-step
analysis:

       (1) determine when the limitations period would normally have begun to run;
       (2) determine whether the ground 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 297, 301 (Tenn. 1995); see also Harris, 301 S.W.3d at 145.

        In this case, the State appropriately raised the statute of limitations issue in the trial
court, and it maintains on appeal that the statute of limitation bars the Petitioner’s request for
relief. We agree.




                                               -7-
        A petition for writ of error coram nobis must be filed within one year of the date the
judgment became final in the trial court. The record in this case does not reflect whether any
post-trial motions were filed before direct appeal or the date the judgment of conviction
became final. However, in its order denying coram nobis relief, the trial court noted that the
Petitioner was convicted on March 23, 2007, and we note that the direct appeal was assigned
to this Court on briefs on July 1, 2008, and decided on October 13, 2008. Leon Flannel, 2008
WL 4613829. Therefore, the statute of limitation began to run, at the latest, in 2008. The
Petitioner filed his pro se petition for error coram nobis on July 24, 2013–five years after the
latest point at which the judgment of the trial court became final. The petition was untimely
filed, but we must consider whether due process requires tolling the statute of limitations.

        As noted above, the limitations period began to run in 2007 or 2008. The second step
of the due process analysis requires us to determine whether the grounds for relief arose after
the limitations period commenced. See Sands, 903 S.W.2d at 301. The Petitioner claims Dr.
Steinberg’s summary report, dated October 26, 2005, and the tests referenced in that report
are “newly discovered evidence” that should have been introduced at trial. However, trial
counsel testified that he received that report in October 2005 and reviewed it with the
Petitioner prior to a motion to suppress hearing in December 2005. Additionally, trial
counsel stated that he gave the Petitioner copies of everything in his file prior to trial.
Finally, when the Petitioner wrote to trial counsel in 2012 requesting copies of his file, trial
counsel wrote back and explained that he had already given the Petitioner copies of
everything in his file. We also note that Dr. Steinberg testified as to his evaluation of the
Petitioner at trial. He told the jury that he had based his opinion on tests he had performed
on the Petitioner, and he explained his findings based on the results of those tests. Based on
these facts, we find that the grounds for relief did not arise after the limitations period had
commenced, but instead, arose prior to trial. Since the evidence is not “later-arising,” we
need not consider the third step of the due process analysis. Therefore, we find that due
process does not require tolling the statute of limitations, and the petition for writ of error
coram nobis is time-barred.

        However, even if the petition had been timely filed, the Petitioner would not be
entitled to relief. In order to be granted relief under a writ of error coram nobis, the
Petitioner must present newly discovered evidence that may have resulted in a different
judgment had it been presented at trial. Tenn. Code Ann. § 40-26-105(b) (2012). The
Petitioner’s evidence in this case is not “newly discovered.” As noted above, the summary
report was available to the Petitioner before trial, and Dr. Steinberg testified as to his findings
at trial. Additionally, the jury received an instruction as to diminished capacity, but by
convicting the Petitioner as charged, it chose not to believe Dr. Steinberg’s testimony and
found that the Petitioner was not suffering from diminished capacity at the time of the
offense. It is unlikely that introducing the individual tests to bolster Dr. Steinberg’s

                                                -8-
testimony would have resulted in a different verdict. Therefore, we find that the trial court
did not abuse its discretion in denying relief.

                                        Conclusion

       For the aforementioned reasons, we affirm the judgment of the trial court.




                                                   _________________________________
                                                   ROBERT L. HOLLOWAY, JR., JUDGE




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