        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned on Briefs April 27, 2010

                    JIMMY GRAY v. STATE OF TENNESSEE

              Direct Appeal from the Circuit Court for McMinn County
                         No. 09-343     Amy Reedy, Judge




                  No. E2009-02339-CCA-R3-CD - Filed July 26, 2010


The petitioner, Jimmy Gray, stands convicted of four counts of aggravated rape and is
serving a sentence of eighty years in the Tennessee Department of Correction. On September
14, 2009, the petitioner filed a petition for writ of error coram nobis on the basis of newly
discovered evidence. The trial court summarily dismissed the petition as filed outside the
statute of limitations. On appeal, the petitioner claims that (1) due process requires tolling
of the statute of limitations; (2) he filed his petition within one year of discovering new
evidence; and (3) the trial court erred by summarily dismissing his petition. Following our
review of the parties’ briefs, the record on appeal, and the applicable law, we affirm the
judgment of the trial court.

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

J.C. M CL IN, J., delivered the opinion of the court, in which JOSEPH M. T IPTON, P.J., filed a
concurring opinion, and J AMES C URWOOD W ITT, J R., concurred in result only.

Jimmy Gray, Pro Se, Pikeville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney
General; Robert Steve Bebb, District Attorney General; and James H. Stutts, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                       Background
      This case concerns the summary dismissal of the petitioner’s petition for writ of error
coram nobis. The petitioner did not include the judgments of conviction or other
documentation in the record on appeal. However, according to the petitioner’s pleadings, on
December 22, 1983, a McMinn County jury found the petitioner guilty of four counts of
aggravated rape in case numbers 10605 and 10606. The trial court sentenced him to an
effective eighty-year sentence in the Tennessee Department of Correction. See State v.
Jimmy Dean Gray and Ricky Gene Williams, Nos. 1209 and 130, McMinn County, (Tenn.
Crim. App. July 24, 1985). This court affirmed his convictions and sentence in 1985. Id.
The petitioner filed for post-conviction relief, alleging ineffective assistance of counsel, and
this court affirmed the trial court’s denial of post-conviction relief. See Ricky Gene Williams
and Jimmy Edward Gray v. State, Nos. 155 and 156, 1988 WL 79770, at *1 (Tenn. Crim.
App. at Knoxville, Aug. 1, 1988). According to the petitioner’s pleadings, he filed a petition
under the DNA Post-Conviction Procedure Act in 2006, but his appointed counsel was
unable to discover evidence for DNA testing. The trial court denied the petition on January
12, 2007.

        The petitioner filed his petition for writ of error coram nobis on September 14, 2009,
alleging that the attorney who represented him in the DNA post-conviction proceeding
discovered a previously undisclosed photograph of the victim in the original case file and that
the photograph rebutted the state’s theory in his case. The petitioner further alleged that he
received the photograph on November 19, 2008. The petitioner did not attach any exhibits
to his petition. The state responded that the petition was untimely filed, that the petitioner
had an opportunity to file the petition while represented by the attorney who discovered the
photograph, that the petition was not supported by documentation to allow the court to
review the petitioner’s claim, and that the photograph, “if it exists and if it is indeed material
to the case” would serve only to impeach the testimony of the state’s witnesses and did not
rise to the level of “newly discovered evidence.”

       The trial court dismissed the petition without a hearing, finding that it was barred by
the statute of limitations and that the photograph did not rise to the level of “newly
discovered evidence.” The petitioner timely filed a notice of appeal.

                                            Analysis

       On appeal, the petitioner argues that the trial court erred in summarily dismissing his
petition, that due process requires tolling the statute of limitations, and that he filed his
petition for writ of error coram nobis within one year of discovering new evidence.

       Trial courts may grant a criminal defendant a new trial following a judgment of
conviction under limited circumstances through the extraordinary remedy offered by a writ
of error coram nobis. Tenn. Code Ann. § 40-26-105; State v. Mixon, 983 S.W.2d 661, 666
(Tenn. 1999). A writ of error coram nobis may be granted where the defendant establishes
the existence of newly discovered evidence relating to matters litigated at trial if the

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defendant shows he was without fault in failing to present the evidence at the proper time,
and if the judge determines the evidence may have resulted in a different judgment had it
been presented to the jury. Tenn. Code Ann. § 40-26-105; Mixon, 983 S.W.2d at 668.

        A criminal defendant has one year, from the entry of the final judgment or disposition
of post-trial motions, in which to file a petition for writ of error coram nobis. See Tenn.
Code Ann. §§ 40-26-105(a), 27-7-103; State v. Vasques, 221 S.W.3d 514, 525 (Tenn. 2007).
We review de novo the question of whether the statute of limitations operates to bar a claim.
Harris v. State 301 S.W.3d 141, 144 (Tenn. 2010). “We construe the coram nobis statute of
limitations consistent with the longstanding rule that persons seeking relief under the writ
must exercise due diligence in presenting the claim.” Id. The state bears the burden of
raising the statute of limitations as an affirmative defense in the trial court. Id.

        When a petitioner presents newly discovered evidence as grounds for coram nobis
relief, due process considerations may act to toll the statute of limitations. Harris, 301
S.W.3d at 145. “These due process considerations refer to the principle that ‘before a state
may terminate a claim for failure to comply with procedural requirements such as 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.’” Id. (quoting
Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992)). We review de novo, with no
presumption of correctness, the question of whether due process requires the tolling of the
statute of limitations. Id.

       “To determine whether due process requires tolling, a court must weigh the
petitioner’s interest in obtaining a hearing to present a later-arising ground for relief against
the State’s interest in preventing stale and groundless claims.” Harris, 301 S.W.3d at 145.
Balancing these interests requires a three-step analysis:

       (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.

Id. (quoting Sands v. State, 903 S.W.2d 297, 301 (Tenn.1995)).

       In this case, the limitations period would normally have begun to run thirty days after
the disposition of the petitioner’s motion for new trial. The record is unclear as to the date
of the petitioner’s motion for new trial; however, the jury convicted the petitioner on

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December 22, 1983, and this court disposed of the petitioner’s direct appeal in 1985.
Therefore, the limitations period would have begun to run sometime between 1983 and 1984
and would have expired between 1984 and 1985, approximately twenty-five years before the
petitioner filed for a writ of error coram nobis.

        The petitioner asserts that grounds for coram nobis relief arose on or around
November 19, 2008, when his former attorney first sent him a letter, the exact contents of
which are unknown, and later sent him the actual photograph that the petitioner claims
constitutes new evidence. The state contends that grounds for relief arose when the
petitioner’s attorney discovered the photograph at some point between June 2006 and January
2007, while she was researching for the petitioner’s DNA post-conviction proceeding. The
petitioner does not contest when his attorney found the photograph. Under the law of this
state, “[a] client is implied to have notice of facts transmitted to his attorney in the matter and
course of his employment for such client.” Roberts v. State, 546 S.W.2d 264, 265 (Tenn.
Crim. App. 1976). This rule applies whether or not the attorney actually communicated the
facts to the client. See Smith v. Petkoff, 919 S.W.2d 595, 597-98 (Tenn. App. 1995).
Therefore, we hold that the petitioner had notice of the photograph as of the time when his
attorney discovered it. Assuming, arguendo, that the photograph constituted newly
discovered evidence, grounds for coram nobis relief arose, at the latest, in January 2007,
thirty-five months before the petitioner filed his petition.

        The third step of the analysis is to determine whether “a strict application of the
limitations period would effectively deny the petitioner a reasonable opportunity to present
the claim.” Harris, 301 S.W.3d at 145. Our supreme court has declined to set “a specific
limitations period for later-arising claims.” Id. In Harris, the supreme court held that a delay
of six years for one of the petitioner’s claims and a delay of twenty-one months for his
second claim were unreasonable under the circumstances of that case. Id. In this case, the
petitioner’s former attorney discovered the photograph while she represented him on a
separate claim. The petitioner could have filed a petition for coram nobis relief while she
represented him. Instead, he filed his petition nearly three years later. Nothing prevented
him from filing during that three-year period. We conclude that, under the circumstances of
this case, the petitioner’s delay in seeking coram nobis relief is unreasonable and that the
pleadings, read in the light most favorable to the petitioner, “do not present a legal basis for
overcoming the [s]tate’s assertion of the statute of limitations.” Id. Therefore, due process
considerations do not merit tolling the statute of limitations, and his petition for writ of error
coram nobis is time-barred. The petitioner is without relief in this matter.

                                           Conclusion

       Based on the foregoing reasons, we affirm the trial court’s judgment.

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      ___________________________________
      J.C. McLIN, JUDGE




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