                                                                                          07/03/2017

        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs March 14, 2017

                JERRY D. CARNEY v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                  No. 97-D-2821      Cheryl A. Blackburn, Judge
                     ___________________________________

                           No. M2016-01153-CCA-R3-ECN
                       ___________________________________


In 1998, a Davidson County jury convicted the Petitioner, Jerry D. Carney, of first degree
premeditated murder. On direct appeal, this Court affirmed the Petitioner’s convictions.
See State v. Jerry D. Carney, No. M1999-01139-CCA-R3-CD, 2000 WL 1335770, at *1
(Tenn. Crim. App., at Nashville, Sept. 15, 2000), perm. app. denied (Tenn. April 24,
2001). On December 19, 2014, the Petitioner filed his fourth petition for a writ of error
coram nobis and in it alleged newly discovered evidence. The trial court issued an order
on April 22, 2014, dismissing the petition as time-barred and meritless. We affirm the
trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and CAMILLE R. MCMULLEN, JJ., joined.

Jerry D. Carney, Only, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Megan M. King,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

       A Davidson County jury convicted the Petitioner of first degree premeditated
murder after evidence at trial showed that the Petitioner, on August 13, 1997, shot the
victim, Craig Cartwright, six times. This court summarized the underlying facts and
procedural history in our last opinion addressing the Petitioner’s third petition for a writ
of error coram nobis.
Our direct appeal opinion provides the following summary of the proof
presented at trial:

          On the night of August 13, 1997, the [Petitioner], Jerry
   Carney, was “riding around” Nashville and drinking beer with his
   friends Eric Bradshaw, Mike Shane, Jimmy Womack, and Melia
   Gribble. Erin Harris, another friend, paged the [Petitioner] and
   requested that he pick her up at 716 Virginia Avenue. On the way
   to Virginia Avenue, Bradshaw remarked that he believed that
   someone who had a problem with his brother, someone named
   “Shane” or “Shawn,” lived at that address.

          Upon arriving at the residence, the four males exited the car
   and began urinating in the front yard. Bill Massey and [the victim]
   walked out of the residence to investigate. The [Petitioner] began
   asking several people, “Who is Shane?” [The victim] responded
   that he was Shane. Upon hearing [the victim] identify himself as
   Shane, the [Petitioner] quickly walked back to the vehicle and sat in
   the back seat behind the driver.

           Massey approached the car on the driver’s side and noticed a
   gun on the seat near the [Petitioner]. Massey asked if the
   [Petitioner] had a problem. The [Petitioner] replied that there was
   no problem. Massey then requested one of the beers that was
   located in the back seat. The [Petitioner] handed Massey a beer.
   As soon as Massey touched the beer, the [Petitioner] grasped the
   gun with both hands. Massey threw down the beer and grabbed the
   [Petitioner], hoping to disarm him. [The victim] had moved to the
   passenger side of the car. Although Massey was in direct contact
   with the [Petitioner], the [Petitioner] never looked at Massey.
   Instead, the [Petitioner] pulled the slide of the gun back twice and
   fired six shots into [the victim] who was standing near the open
   passenger door.

          The [Petitioner], Bradshaw, Shane, Womack, Gribble, and
   Harris sped away in the car to Bradshaw’s house. The [Petitioner]
   took a shirt and wiped the car, inside and out, in order to destroy
   evidence. He also removed a decal from the back glass of the car
   and tried to remove all of the spent shell casings from the car. The
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      [Petitioner] entered Bradshaw’s house, removed his bloody clothes,
      and soaked them in water in the bathtub. He then went to sleep and
      slept until the next day when he was picked up by the police for
      questioning.

              The [Petitioner] testified that he shot [the victim] in self-
      defense. The [Petitioner] stated that he was afraid of Massey and
      [the victim] because they were much larger than he. The
      [Petitioner] claimed that Massey had grabbed the [Petitioner] by the
      shirt collar prior to the [Petitioner’s] retreat to the car. The
      [Petitioner] alleged that he feared Massey or [the victim] would hurt
      him or try to take his gun and use it against him.

Id.

       The [P]etitioner later filed a petition for a petition for post-
conviction relief and a petition for writ of habeas corpus, both of which
were denied. See Jerry D. Carney v. State, No. M2002-02416-CCA-R3-
PC, 2005 WL 351238, at *1 (Tenn. Crim. App. Feb. 14, 2005), perm. app.
denied (Tenn. June 20, 2005), and Jerry D. Carney v. David Mills, Warden,
No. W2004-01563-CCA-R3-HC, 2004 WL 2756052, at *1 (Tenn. Crim.
App. Dec. 2, 2004). Among other things, the [P]etitioner alleged in the
post-conviction petition that trial counsel was ineffective for failing to
object to the medical examiner’s testimony concerning the autopsy report,
which was of the wrong victim. 2005 WL 351238, at *7. This court
affirmed the post-conviction court’s findings that the [P]etitioner was not
prejudiced by the erroneous report because whether the [P]etitioner shot
and killed the victim was not an issue at his trial:

             As the post-conviction court stated, the [P]etitioner asserted
      self-defense as a defense and whether he shot the victim or not was
      not an issue in the trial. In addition, the autopsy report was never
      shown to the jury and trial counsel had the opportunity to cross-
      examine the witness regarding the autopsy report. For these
      reasons, we conclude that the evidence does not preponderate
      against the post-conviction court’s conclusions.

Id. at *8.

       On September 10, 2004, the [P]etitioner filed a pro se petition for
writ of error coram nobis in which “he alleged various pieces of favorable
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evidence were withheld at trial by the State.” Jerry D. Carney v. State, No.
M2005-01904-CCA-R3-CO, 2006 WL 2206045, at *2 (Tenn. Crim. App.
July 31, 2006). The trial court dismissed the petition on the grounds that it
was untimely, that several of the [P]etitioner’s allegations of favorable
evidence had been previously addressed, and that the two remaining pieces
of allegedly favorable evidence, which consisted of a piece of the
[P]etitioner’s clothing and a hair that had been found on the victim, were
not newly discovered and would not have changed the outcome of the trial.
Id. at *2-4. On appeal, this court affirmed the judgment of the trial court by
memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal
Appeals. Id. at * 1.

       On May 2, 2006, the [P]etitioner filed a second petition for writ of
error coram nobis in which he claimed that he had first learned at the
hearing on his first petition for writ of error coram nobis “that a .22 caliber
gun listed on a police report was actually found inside the vehicle in which
the fatal shooting had taken place.” Jerry D. Carney v. State, No. M2006-
01740-CCA-R3-CO, 2007 WL 3038011, at *2 (Tenn. Crim. App. Oct. 17,
2007). The trial court dismissed the petition on the basis that it was
untimely and failed to state a claim for error coram nobis relief, and this
court affirmed the judgment. Id. at *2-3.


        Finally, on September 15, 2011, the [P]etitioner filed this, his third
petition for writ of error coram nobis, or, in the alternative, motion to
reopen his previously filed coram nobis petitions. In the instant petition,
the [P]etitioner alleges that the medical examiner’s 2010 Mississippi arrest
and subsequent guilty plea conviction to felony possession of marijuana
and his 2010 Tennessee guilty plea conviction to official misconduct
constitute newly discovered evidence that would have altered the outcome
of his trial. The [P]etitioner argues that the medical examiner’s “negligent
and deceptive acts” at the [P]etitioner’s trial and his “recent felonious act
and official misconduct,” show that the medical examiner was not credible
and that he committed fraud and aggravated perjury at the [P]etitioner’s
trial.

        On November 14, 2011, the trial court entered a detailed written
order dismissing the petition on the grounds that it was untimely, that there
were no due process grounds that required the tolling of the statute of
limitations, and that the petition failed to state a cognizable ground for error
coram nobis relief.
                                       4
Jerry D. Carney v. State, No. M2011-02766-CCA-R3-CO, 2012 WL 5193435, at *1
(Tenn. Crim. App, at Nashville, Oct. 22, 2012).

       In this most recent petition, the Petitioner acknowledged filing this petition outside
the one-year statute of limitations but asserted that due process tolling should be applied
based upon later-arising evidence in the form of a trial witness’s August 2014
recantation. The Petitioner submitted an affidavit signed by a state witness, Natasha
Holland. The affidavit asserts that there was a “hostile environment” at the residence
where the shooting occurred and that the victim acted aggressively toward the Petitioner.
Further, Ms. Holland affirms that both the Petitioner and Massey had their hands on the
pistol “at the time [she] heard the shots fired.” She recants her testimony about seeing
the Petitioner point the gun at the victim and fire it.

         On April 22, 2016, the trial court issued an order denying relief. The trial court
found:

         [T]he limitations period [in this case] would have begun to run in April
         2001, when the Tennessee Supreme Court denied permission to appeal the
         Court of Criminal Appeals opinion. The filing of the petition for a writ of
         error coram nobis nearly 15 years later, therefore, is untimely.

                 The next step is to determine whether the grounds alleged in the
         coram nobis petition arose after the statute of limitations period expired, or
         in other words, whether the grounds were later-arising. As further
         discussed in Part III.B. of this order, the grounds Petitioner alleges are not
         “later-rising” grounds related to Petitioner’s case.

               Accordingly, this Court concludes that nearly 15-year delay is
         unreasonable and that, as a matter of law, the [P]etitioner is not entitled to
         due process tolling. See, e.g., Billy Ray Irick v. State, No. E2010-02385-
         CCA-R3-PD, 2011 WL 1991671 (Tenn. Crim. App., at Knoxville, May 23,
         2011). The petition is time-barred.

        The trial court went on to consider whether Ms. Holland’s affidavit constituted
“later-arising” grounds warranting relief and made the following findings:

                This Court has reviewed the “newly discovered” evidence of Ms.
         Holland’s recantation in the form of her Affidavit and has compared it to
         her trial testimony, which also has been provided as an exhibit to the
         petition. Other than Ms. Holland making the blanket statement that her trial
                                               5
testimony was not true, and that her trial testimony that she observed
Petitioner shoot the victim is false, Ms. Holland’s factual statements in her
affidavit do not contradict her trial testimony. The only seemingly “new”
information Ms. Holland provides is that the victim displayed signs of
aggression towards Petitioner and both Petitioner and the victim had their
hands on the firearm when it went off. Ms. Holland also provides the
history of her conversations with the police where she said she volunteered
the firearm may have been discharged by Bill Massey during the struggled
with Petitioner, or simply discharged during the struggle with no one
intending it to be fired. All of the statements Ms. Holland gave the police
during her pre-trial interviews would have been known and available to the
parties prior to trial and provided in the discovery.

Although Ms. Holland testified on direct that she saw Petitioner shoot the
victim and fire a total of five times, during the cross-examination,
Petitioner’s trial counsel (1) pointed out Ms. Holland’s prior
testimony/statements where she said she saw Mr. Massey grab Petitioner,
and Ms. Holland agreed that Mr. Massey was holding on to the Petitioner
until the shots were fired; (2) pointed out Ms. Holland’s friendship with the
victim and her sister’s relationship with the other passengers in the car to
show bias against the Petitioner; and (3) explored that Mr. Cartwright may
have been hiding a weapon in his hat.

       As has been noted in the Court’s previous orders regarding the three
prior petitions for writ of error coram nobis, at no point during the trial was
there a dispute that Petitioner shot the victim. The issue at trial was
whether the shooting was an act of self-defense. Petitioner’s trial counsel
addressed the self-defense issues and conflicts in Ms. Holland’s pre-trial
and trial statements that are raised in Ms. Holland’s 2014 Affidavit during
his cross-examination of her at trial. The jury, therefore, heard this
evidence and was able to make a credibility determination when rendering
its verdict. Accordingly, Ms. Holland's affidavit does not raise any new
issues to warrant the tolling of the statute of limitations nor does her
affidavit provide Petitioner a cognizable claim for a writ of error coram
nobis. Petitioner’s request for relief is denied. The Court further notes that
in Ms. Holland’s Affidavit, in addition to indicating she felt pressured by
the state and doing what “everyone wanted me to do”, Ms. Holland
explicitly states that she “was also under threats made by Jerry Carney’s
family and friends” and moved to Memphis until the trial was over.



                                      6
              Moreover, the Court notes that Ms. Holland was not the only
       eyewitness who testified at trial. Eyewitnesses who testified at trial
       included Melia Gribble, Mike Shane, and William Massey. These three
       witnesses testified in addition to the State’s other witnesses: MNPD Officer
       Randy Jones. MNPD Sergeant Duane Phillips, and Officer Johnny
       Lawrence who responded to the shooting scene; MNPD Officer Jeff
       Biggerstaff, MNPD William Massey, MNPD Detective Brad Corcoran,
       MNPD Officer Earl Hunter, and Detective D. Satterfield who worked the
       scene and interviewed witnesses; and Dr. Emily Ward who participated in
       the autopsy. The Petitioner also testified at trial.

(citations omitted). It is from this judgment that the Petitioner appeals.

                                        II. Analysis

        On appeal, the Petitioner argues that the trial court erred when it dismissed his
petition for a writ of error coram nobis because newly discovered evidence entitles him to
relief. The Petitioner submits that Ms. Holland’s recantation is material and vital,
requiring the waiving of the statute of limitations. The State responds that the trial court
correctly dismissed the Petitioner’s claim as untimely and that the stated grounds for
relief do not constitute “newly discovered evidence.” We agree with the State.

       Tennessee Code Annotated section 40-26-105 (2012) provides:

               There is hereby made available to convicted defendants in criminal
       cases a proceeding in the nature of a writ of error coram nobis, to be
       governed by the same rules and procedure applicable to the writ of error
       coram nobis in civil cases, except insofar as inconsistent herewith. . . .
       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 are litigated at the trial if the judge determines that such
       evidence may have resulted in a different judgment, had it been presented at
       trial.

It is well-established that the 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). Generally, a decision whether to grant a writ rests within
the sound discretion of the coram nobis court. See State v. Hart, 991 S.W.2d 371, 375
(Tenn. Crim. App. 1995). We, therefore, review for abuse of discretion. See State v.
Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002).
                                              7
        A petition for a writ of error coram nobis must be filed within one year of the
judgment becoming final in the trial court. T.C.A. § 27-7-103. This 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 v. State, 301 S.W.3d 141, 144
(Tenn. 2010); see Mixon, 983 S.W.2d at 670 (“[W]e reject the contention . . . that the
statute does not begin to run until the conclusion of the appeal as of right proceedings.”).
In the present case, the judgment became final on February 11, 1999,1 when the trial
court entered an order denying the Petitioner’s motion for new trial. The Petitioner did
not file this petition for writ of error coram nobis until December 19, 2014, more than
fifteen years later.

        The one-year statute of limitations for a petition for writ of error coram nobis may
be tolled on due process grounds if a petition seeks relief based upon newly discovered
evidence of actual innocence. Harris, 301 S.W.3d at 145. In determining whether the
statute should be tolled, the court must balance a petitioner’s interest in having a hearing
with the State’s interest in preventing a claim that is stale and groundless. Id. Generally,
“before a state may terminate a claim for failure to comply with . . . 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 Burford rule requires three steps:

                 (1) determine when the limitations period would normally have
         begun to run; (2) determine whether the grounds 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 299, 301 (Tenn. 1995). As a general rule, the claim at issue
must not have existed during the limitations period to trigger due process consideration.
Seals v. State, 23 S .W.3d 272 (Tenn. 2000). Discovery of or ignorance to the existence
of a claim does not create a “later-arising” claim. See Brown v. State, 928 S.W.2d 453,
456 (Tenn. Crim. App. 1996); Passarella v. State, 891 S.W.2d 619, 635 (Tenn. Crim.
App. 1994).

      After reviewing the record, we conclude that the trial court abused its discretion in
dismissing the petition as time-barred. The Petitioner contends that the trial court
1
 The trial court relied on the date that the supreme court denied application for review in the Petitioner’s direct
appeal rather than the date that the judgment became final in the trial court, as is directed by the coram nobis statute.
                                                           8
improperly dismissed the petition without an evidentiary hearing. We first note that this
court has repeatedly held that, in general, trial courts are not required to hold evidentiary
hearings when the petition for a writ of error coram nobis fails to meet the necessary
prerequisites to file for such relief. See State v. Lingerfelt, 687 S.W.2d 294, 295 (Tenn.
Crim. App. 1984); Cole v. State, 589 S.W.2d 941, 943 (Tenn. Crim. App. 1979); see also
State v. Johnny L. McGowan, No. M2007-02681-CCA-R3-C0, 2008 WL 4170273, at *3
(Tenn. Crim. App., at Nashville, Aug.5, 2008), perm. app. denied (Tenn. Oct. 27, 2008).
Since the Petitioner has not asserted his claim within the time allowed by the statute of
limitations, we must now consider whether he has demonstrated that he is entitled to a
tolling of the statute of limitations.

       The Petitioner has failed to state any ground for which the statute of limitations
should be tolled. Further, the claims the Petitioner now raises are not cognizable within a
petition for writ of error coram nobis. In Tennessee, a writ of error coram nobis should
be granted when “subsequently or newly discovered evidence . . . may have resulted in a
different judgment, had it been presented at trial.” T.C.A. § 40-26-105 (2003); Workman
v. State, 41 S.W.3d 100, 104 (Tenn.2001). As the trial court succinctly laid out in its
order denying relief, the Petitioner’s claims do not raise such evidence and, we conclude,
therefore, that the trial court properly denied the relief sought by the Petitioner.

       Finally, the Petitioner argues that the State failed to raise the statute of limitations
as an affirmative defense. He correctly notes that the State failed to file a response to the
petition at the trial court level. We agree that the statute of limitations is an affirmative
defense that must be specifically pled by the State or is deemed waived. Harris v. State,
102 S.W.3d 587, 593 (Tenn. 2003). However, we are reviewing the trial court’s
dismissal of the petition on this basis; the State is not seeking to preclude our review of
the trial court’s conclusions on this basis. Moreover, the Petitioner concedes in his
petition that he was filing outside the statute of limitations in asserting that due process
considerations require the tolling of the statute of limitations. See Sands, 903 S.W.2d at
299 (Tenn. 1995) (holding there is no waiver if the opposing party is given fair notice and
an opportunity to rebut). Because the Petitioner raised the issue of statute of limitations
in his petition, he cannot now claim he was not given fair notice of the defense or the
opportunity to rebut it.

       Accordingly, the Petitioner has failed to demonstrate that the statute of limitations
should be tolled in this case; therefore, we conclude that the trial court properly dismissed
his untimely petition for coram nobis relief. The Petitioner is not entitled to relief.

                                      III. Conclusion



                                              9
       Based upon the foregoing reasoning and authorities, we affirm the coram nobis
court’s judgment.



                                          ____________________________________
                                               ROBERT W. WEDEMEYER, JUDGE




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