                                                                                        03/18/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs January 9, 2019

                FABIAN CLAXTON v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                      No. 07-06442       Chris Craft, Judge
                     ___________________________________

                          No. W2018-00618-CCA-R3-ECN
                       ___________________________________


The petitioner, Fabian Claxton, appeals the denial of his petition for writ of error coram
nobis by the Shelby County Criminal Court, arguing the trial court erred in dismissing the
petition because newly discovered evidence exists in his case. After our review, we
affirm the denial of the petition.

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

J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,
P.J., and ALAN E. GLENN, J., joined.

Terrell L. Tooten, Cordova, Tennessee, for the appellant, Fabian Claxton.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                             Facts and Procedural History

       On May 22, 2007, the petitioner approached Riverview Park in Memphis,
Tennessee and fired multiple shots in an attempt to shoot Jeremy Gray. Though the
petitioner did not injure Mr. Gray, he did injure three innocent bystanders. For his
actions, a jury convicted the petitioner of four counts of attempted first degree murder
and unlawful possession of a handgun while in a public place. State v. Fabian Claxton,
No. W2009-01679-CCA-R3-CD, 2011 WL 807459, at *1 (Tenn. Crim. App. Mar. 7,
2011), no perm. app. filed. The trial court sentenced him to an effective eighty-eight
years’ incarceration. Id. This Court upheld the petitioner’s convictions and sentence on
appeal. Id. at *4-10. In doing so, we summarized the proof presented at trial, as follows:

             On May 22, 2007, the [petitioner], wearing a blue bandana that
      covered the lower part of his face, approached the Riverview Park at the
      Riverview Community Center in Memphis, Tennessee and fired a .40
      caliber revolver into the air. After firing into the air, the [petitioner] began
      shooting toward the basketball court with a semi-automatic handgun and
      the .40 caliber revolver, injuring three teenagers, Demarcus Fleming,
      Blessing Pollard, and Frederick Buford, who had attempted to run away
      when the [petitioner] began shooting. There were several other teenagers
      and children sitting near and playing on the basketball court that also ran
      but were not injured by the [petitioner].

              In the investigation that followed, Investigator Jeffrey Garey of the
      Memphis Police Department found four Winchester .40 Smith & Wesson
      bullet shell casings and six .25 automatic bullet shell casings near where the
      [petitioner] had been reportedly standing as he shot toward the basketball
      court. When the [petitioner] was apprehended the next day, Officer John
      Gorley of the Memphis Police Department found a small handgun and a
      purse in the [petitioner’s] vehicle. In the purse, officers found a box of
      Remington .25 caliber ammunition and a blue bandana. The handgun was a
      6.32 millimeter handgun, which is equivalent to a .25 caliber handgun and
      can fire .25 caliber ammunition. Officer Gorley did not find a carrying
      permit for the weapon even though a permit is required when possessing a
      weapon upon a public road “in the fashion that that gun was being
      transported.”

             Once at the police station, the [petitioner] waived his Miranda rights
      and confessed to his involvement in the shooting. Detective Robert Wilkie
      of the Memphis Police Department transcribed the [petitioner’s] statement,
      which was signed by the [petitioner]. In his statement, the [petitioner]
      admitted that he and Antonio Malone were responsible for shooting
      Frederick Buford, Blessing Polard, and Demarcus Fleming. He stated that
      he was intending to shoot Jeremy Gray. According to him, there were only
      two people, Jeremy Gray and a person named A.J., on the basketball court
      when he began shooting. He was on the “top of the hill for the first shots,”
      and he was “by the bridge” for the “second shots.”

            In his statement, the [petitioner] said that prior to the shooting,
      Antonio Malone had talked to Jeremy Gray, who told Antonio Malone that
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he believed that the [petitioner] and Antonio Malone had shot “some dope
boy” and that he was looking for them and that “some GD’s were looking”
for Antonio Malone. When the [petitioner] told Antonio Malone that he
wanted to “confront” Jeremy Gray about the situation, Antonio Malone told
the [petitioner] that Jeremy Gray “had a gun on him.” The [petitioner] said
that when they approached the park, Antonio Malone had the .40 caliber
revolver while he had the .25 semi-automatic. The [petitioner] told
Antonio Malone that he would not shoot toward the basketball court
because “there were too many kids.” They eventually decided that Antonio
Malone would “fire a couple of shots to scare the little kids off.” After
Antonio Malone “shot a couple of times down there,” the [petitioner] took
back the gun and “shot the rest of the shots out of the gun” and “shot the
[.25 semi-automatic] in the air until it was empty.” The [petitioner] stood
on the bridge for 15 or 20 seconds and after seeing that there “wasn’t no
kids out there laying or screaming,” he “ran back to the car” and gave the
.40 caliber revolver back to Antonio Malone. Upon further questioning, the
[petitioner] told Detective Wilkie that he shot the .25 caliber semi-
automatic into the air but that he “shot at Jeremy with the [.40 caliber
revolver].”

        At trial, Ortanio Sharp, who was 15 years old at the time of the trial
and in [the] State’s custody for unrelated charges, testified that he observed
Antonio Malone and Jeremy Gray talking on May 22, 2007, sometime
before the shooting. He believed that Jeremy Gray had confronted Antonio
Malone, and he heard Antonio Malone say that he was going to find the
[petitioner]. After observing the two talking, he went to his boss’s house for
approximately 15 minutes before returning to the park.

       Once he arrived back at the park but before he stepped onto the
basketball court, he heard people say, “[T]here go Fay.” He turned around
and saw whom he believed to be the [petitioner] fire a revolver into the air
before firing toward Jeremy Gray, who was standing on the basketball
court. The [petitioner] had a “black rag across his face” and was “wearing
a hoodie over his head” while standing on a bridge that was near the
basketball court. After seeing the [petitioner] fire the first shot into the air,
Ortanio Sharp saw the [petitioner] lower his weapon before firing more
shots. As Ortanio Sharp was running away, he heard gunshots coming
from a semi-automatic weapon. He returned to the basketball court when
he heard Blessing Pollard screaming. He admitted that he was unable to
positively identify the [petitioner] as the shooter but stated that the shooter
looked like the [petitioner] and that he had heard that others had identified
                                      -3-
the [petitioner] as the shooter. He stated that there were “about” 21 kids in
the area when the shooting occurred.

       Demarcus Fleming, who was 15 at the time of the trial but 14 at the
time of the shooting, testified that on May 22, 2007, he was sitting on a
bench with his 12-year-old sister, Cashondra Fleming; his 12-year-old
friend, Demetrius; and Blessing Pollard. He was at the park watching
“A.J.” and Jeremy Gray play basketball for approximately ten minutes
when he heard gunshots. He turned toward the sound of the gunshots and
saw a “dark skin dude with a [bandana] over his face.” The man “had two
guns in his hands” and was pointing the weapons toward the basketball
court. He ran toward the railroad tracks with Cashondra Fleming and
Demetrius. Blessing Pollard tried to run with them but fell on the ground.
After approximately ten minutes, Demarcus Fleming stopped and realized
that he had been shot in the back of his left leg and that Fredrick Buford
had been shot. They returned to the basketball court to find that Blessing
Pollard had also been shot and was “losing a lot of blood.”

        Blessing Pollard, who was 16 at the time of trial and in the State’s
custody for unrelated charges, testified that she was at Riverview Park
sitting on a bench with Demarcus Fleming and others on May 22, 2007.
They were watching Jeremy Gray and others play basketball when she
noticed Jeremy Gray looking up. She turned around and saw a person with
two guns in his hands. The person was aiming the guns toward Jeremy
Gray. She could not remember how many times the person fired the
weapons. She could not identify the shooter, but she stated that the shooter
was wearing a “scarf on his mouth” and that there was only one shooter.
She stated that she was shot in the back of her right calf.

       Frederick Buford, who was 16 at the time of trial, testified that on
May 22, 2007, he was at the Riverview Park playing basketball with
Jeremy Gray, Demarcus Fleming, A.J., and others. As they were playing,
he heard gunshots. He stated that when he heard gunshots and saw
everybody running, he ran toward the railroad tracks. He eventually
realized that he had been shot in the upper back; the bullet ended up in his
neck. He could not identify the shooter.

       Jeremy Gray, who was 17 at the time of trial and in [the] State’s
custody for unrelated charges, testified that he went to the Riverview park
with Aven Farrow to play basketball on May 22, 2007. He stated that he
had a 10 or 15-minute conversation with Antonio Malone “right before” he
                                    -4-
started playing basketball. He stated that Antonio Malone asked him about
“Clavin and Fay.” He stated that approximately three weeks prior to May
22, 2007, he and the [petitioner] had a dispute at the Crystal Palace skating
rink about the [petitioner] “shooting in the neighborhood.” However, he
stated that this dispute was not the topic of the discussion that he had with
Antonio Malone on May 22, 2007.

        Mr. Gray testified that on May 22, 2007, he was not armed while he
was playing basketball. He said that while he was on the basketball court,
he saw a person wearing a blue bandana around his mouth standing on the
bridge near the basketball court and that he believed that this person was
the [petitioner] because the [petitioner] “was the only problem [he] had in
the neighborhood.” Jeremy Gray further stated that he recognized how the
[petitioner] walked and “how his body shaped up.” He said that he ran
when the [petitioner] raised a handgun and pointed it toward him. He said
that as he was running, he heard “different shots come from different guns”
and that he heard eight or nine gunshots before he stopped running. When
he returned to the basketball court, he called 9-1-1 with his cellular
telephone because he saw that a little girl had been shot.

       The [petitioner], who was 20 at the time of trial but 19 on May 22,
2007, testified at trial that he went to the park to talk with Jeremy Gray. He
said that as he was walking over the bridge to the basketball court, he called
out to Jeremy Gray, waving and raising his hand to get his attention. When
he saw Jeremy Gray reaching for what he believed was a weapon hidden
under a t-shirt, he began shooting with a .40 caliber revolver that Antonio
Malone had handed him as they were walking toward the park. He
admitted that he also used a .25 that he had bought from Antonio Malone.
He said that he brought weapons with him because Antonio Malone had
told him that Jeremy Gray was armed and wanted to kill him. He said that
he was carrying the weapons because he feared for his life.

        The [petitioner] stated that he was wearing a white shirt and a black
hat that was “turned to the back” and that he did not have anything covering
his face. He stated that he did not mean for anyone to get hurt and that he
only returned to his car after he scanned the area and found that nobody
was yelling or screaming. He admitted that he saw two or three people
sitting on the bench beside the basketball court when he shot toward Jeremy
Gray, but he stated that he did not see Blessing Pollard lying on the ground
when he scanned the area.

                                    -5-
               Relative to his apprehension, he stated that he did not know that
       there was a bandana in the purse in his car. He stated that he asked his
       sister if he could borrow the purse to store the gun and the ammunition that
       Antonio Malone had given him. He admitted that he gave a statement at
       the police station that was contrary to his trial testimony, but he explained
       that his statement differed from his testimony because the detective was
       arguing with him and telling him what to say.

              The [petitioner’s] mother, Constance Claxton, testified at trial that
       Antonio Malone was not allowed to come to her house and that despite her
       instructions, Antonio Malone was at her house on May 22, 2007. She said
       that she told Antonio Malone to leave and that the [petitioner] left with
       Antonio Malone but returned 30 or 45 minutes later. The [petitioner’s]
       friend, Oscar Brent, testified that he worked with the [petitioner] and that
       he believed the [petitioner] was a “reliable and trustworthy employee.”

Fabian Claxton, 2011 WL 807459, at *1-4 (footnote omitted).

       On November 19, 2015, nearly five years after the denial of his direct appeal, the
petitioner filed a pro se petition for writ of error coram nobis.1 In the petition, the
petitioner alleged newly discovered evidence exists in his case in the form of “sworn
testimony of the State’s witness, Jeremy Gray, declaring that [Mr. Gray] was misled by
detectives to believe that the crimes were committed by [the petitioner] and that [Mr.
Gray] gave false testimony at trial because he was threatened and coerced to do so.” The
petitioner attached the “Affidavit of Jeremy Gray” to his petition which stated:

               On May 22nd, 2007, I was a victim of a crime in Shelby County,
       Memphis, Tennessee, that was eligibly (sic) committed by [the petitioner].
       During the investigation process, I was misled by detectives into believing
       that this crime was committed by [the petitioner] through deception. As the
       process continued I began to believe the events as truth. The case
       eventually went to trial and through coercion and threats I gave false
       testimony which resulted in a guilty verdict for [the petitioner]. I had a
       robbery and kidnapping charge pending and Judge Chris Craft, in division
       VIII, told me that if I didn’t proceed with the prosecution of [the petitioner]
       and testify at his trial, he would make sure that I serve 100 percent on my
       pending cases. Through threats and coercion I gave false testimony and

       1
        The petitioner simultaneously filed a pro se petition for post-conviction relief. After the
appointment of counsel, however, he elected to pursue the petition for writ of error coram nobis before
pursuing his post-conviction claims.
                                                 -6-
       hereby recant all previous statements and testimony involved in the
       criminal charges brought against [the petitioner].

        Mr. Gray served as the only witness at the evidentiary hearing on the petitioner’s
coram nobis claims. Mr. Gray stated he was seventeen years old when he testified at the
petitioner’s trial. At the time, Mr. Gray had charges pending against him. However, he
believed he would get a reduction in the service of his sentences for the pending charges
in exchange for his testimony against the petitioner. Specifically, Mr. Gray’s attorney
stated he was to receive “thirty (30%) percent on [his] time, but [he] didn’t.” Instead,
after testifying against the petitioner, Mr. Gray served an eight-year sentence at 100%.

        Mr. Gray then discussed the affidavit pertinent to the petitioner’s present claims,
asserting he provided the same to the petitioner’s brother in 2015. According to Mr.
Gray, he was not threatened or coerced into writing the affidavit. Rather, as noted in the
above-detailed affidavit, Mr. Gray stated detectives and a trial judge coerced him into
testifying against the petitioner at trial.

        During cross-examination, Mr. Gray acknowledged the statement he provided to
police on May 22, 2007, was similar to his preliminary hearing and trial testimony. Mr.
Gray affirmed the details surrounding the shooting, including: Mr. Gray had a
disagreement with the petitioner prior to the shooting; Mr. Gray spoke to Mr. Malone
prior to the shooting; the petitioner wore a blue bandana, blue shorts, and a white t-shirt
during the shooting; Mr. Gray believed the petitioner to be the shooter based on his
stature, complexion, and gait; Mr. Gray believed the petitioner shot at him; and Mr. Gray
identified Mr. Malone and the petitioner in photographic lineups after the shooting. After
the State detailed the similarities between Mr. Gray’s statement and his trial testimony,
Mr. Gray ultimately affirmed the testimony he provided at the petitioner’s trial was true.
During re-direct, Mr. Gray again stated his attorney told him to testify against the
petitioner in exchange for “a deal” on his pending cases, noting the jury was unaware of
the deal.

       Upon its review of the evidence presented, the coram nobis court entered a written
order denying the petition. This timely appeal followed.

                                            Analysis

       On appeal, the petitioner asserts the trial court erred in denying his petition for
writ of error coram nobis because Mr. Gray admitted in his affidavit “that he did not give
truthful testimony” at trial and “this information should be provided to the jury, so that
they can test the credibility of Mr. Gray, when determining whether to accept or reject his
testimony.” The State disagrees and suggests “the coram nobis court properly noted that
                                           -7-
[Mr. Gray] admitted at the evidentiary hearing that his trial testimony had been truthful”
and “[Mr. Gray’s] affidavit claiming that he had been forced to falsely implicate the
petitioner was not credible.” The State also contends ample evidence exists in the record
to support the petitioner’s convictions, including “that an additional eyewitness had
identified the petitioner as the shooter, and the petitioner admitted to the police that he
had fired the shots.” Upon our review, we agree with the State.

         The writ of error coram nobis in criminal cases is a statutory remedy limited 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.” Tenn. Code Ann. § 40-26-105(b).
To obtain relief, a petitioner must show he “was without fault in failing to present certain
evidence at the proper time.” Id. If successful, “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.” Id. “Our supreme court has stated the 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.’” Kenneth
Dale Sanders v. State, No. M2016-00756-CCA-R3-ECN, 2017 WL 633784, at *2 (Tenn.
Crim. App. Feb. 16, 2017) (citing State v. Vasques, 221 S.W.3d 514, 525-28 (Tenn.
2007)). More specifically, within the context of “newly discovered recanted testimony,”
a new trial is warranted when:

              (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 State v. Mixon, 983
S.W.2d 661, 673 n.17 (Tenn. 1999)).

      In this case, the petitioner’s coram nobis claims rest on the fluctuating testimony
of Mr. Gray in identifying the petitioner as the shooter. The petitioner suggests Mr.
Gray’s affidavit demonstrates his trial testimony was biased, a fact the jury should have
known in weighing Mr. Gray’s credibility at trial. The petitioner argues if the jury had
known of Mr. Gray’s bias, the outcome of his trial would have been different. We,
however, disagree.

       In denying relief to the petitioner, the coram nobis court stated:
                                             -8-
                As this court finds that the newly discovered evidence in this case,
        the recantation of [Mr. Gray’s] identification of the petitioner as the shooter
        at trial, was itself recanted by [Mr. Gray] at the hearing on this petition,
        who admitted that he testified truthfully at trial, the petitioner is not
        deserving of relief. Furthermore, even had [Mr. Gray] testified at trial that
        he was not able to identify the petitioner as the shooter, the finding of the
        other evidence, such as the weapon and ammunition, the petitioner’s
        identification by another witness as the shooter and the petitioner’s
        confession to the police and admission at trial that he was in fact the
        shooter convinces this court that this evidence would not have resulted in a
        different judgment.

        Our review of the issue presented reflects that of the coram nobis court. Nothing
in the record supports the petitioner’s claim that newly discovered evidence exists
relating to Mr. Gray’s testimony. Rather, the record shows Mr. Gray identified the
petitioner as his shooter in a statement to police on May 22, 2007, the day the crimes
were committed. At the petitioner’s trial, Mr. Gray again identified the petitioner as the
shooter. Years later, Mr. Gray recanted his trial testimony, claiming he was coerced into
identifying the petitioner as the shooter by detectives and a trial court judge. Mr. Gray’s
change of position was documented in an affidavit dated July 31, 2015. However, at the
February 9, 2018 hearing on the present coram nobis petition, Mr. Gray recanted the
testimony within the affidavit. In doing so, Mr. Gray affirmed he testified truthfully at
trial. Accordingly, any alleged newly discovered evidence has been recanted by Mr.
Gray and the petitioner has failed to show how Mr. Gray’s inconsistent testimony
affected the outcome of his trial. The petitioner cannot meet his burden. Kenneth Dale
Sanders, 2017 WL 633784, at *2; Ratliff, 71 S.W.3d at 298. Furthermore, as addressed
by the coram nobis court, copious evidence exists in the record to support the petitioner’s
convictions, including the petitioner’s own confession to police and at trial, and the
proposed newly discovered evidence alleged by the petitioner in no way contradicts the
overwhelming proof of the petitioner’s guilt as established at trial.2 The petitioner is not
entitled to relief.

                                               Conclusion



        2
          Separately, we note, the coram nobis court did not address the statute of limitations in regards to
the petitioner’s claims. The court stated: “This court need not decide the statute of limitation question,
finding that the ‘newly discovered evidence’ would have made no difference in the verdict at trial.” We
agree. Based upon the above-outlined reasoning, it is unnecessary to address the applicability of
equitable tolling in the petitioner’s case as it is clear he is not entitled to relief.
                                                   -9-
       Based upon the foregoing authorities and reasoning, the judgment of the coram
nobis court is affirmed.



                                         ____________________________________
                                         J. ROSS DYER, JUDGE




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