        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs December 18, 2012

                  GARY S. MAYES v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Knox County
                     No. 98632     Jon Kerry Blackwood, Judge


                No. E2012-00680-CCA-R3-PC - Filed February 7, 2013


On December 12, 2011, the petitioner, Gary S. Mayes, filed a pro se petition for a writ of
error coram nobis alleging newly discovered evidence related to the Knox County Criminal
Court’s 2008 denial of his petition for post-conviction relief. The coram nobis court
summarily denied relief. We affirm the denial of relief.

              Tenn. R. App. P. 3; Order of the Criminal Court Affirmed

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and C AMILLE R. M CM ULLEN, J., joined.

Adam Elrod, Knoxville, Tennessee (on appeal), for the appellant, Gary S. Mayes.

Robert E. Cooper, Jr., Attorney General and Reporter; and Lacy Wilber, Assistant Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

              The record reflects that a Knox County Criminal Court jury convicted the
petitioner of especially aggravated sexual exploitation of a minor, and the trial court
sentenced him as a repeat, violent offender to life imprisonment without the possibility of
parole. This court affirmed the petitioner’s conviction and sentence on direct appeal, and the
supreme court denied further review. State v. Gary Stephen Mayes, No. E2004-02344-CCA-
R3-CD (Tenn. Crim. App., at Knoxville, Oct. 3, 2005), perm. app. denied (Tenn. Feb. 21,
2006). The petitioner then filed an unsuccessful petition for post-conviction relief alleging
multiple instances of deficient performance by trial counsel. This court affirmed the denial
of post-conviction relief on direct appeal, and the supreme court denied further review. Gary
S. Mayes v. State, E2008-02777-CCA-R3-PC (Tenn. Crim. App., at Knoxville, Mar. 9,
2010), perm. app. denied (Tenn. Sept. 2, 2010).
               On December 12, 2011, the petitioner filed the instant petition for writ of error
coram nobis alleging that the post-conviction court failed to rule on his motion to reconsider
the denial of post-conviction relief and that the post-conviction judge was incompetent to
preside over the post-conviction proceedings. In support of his claim concerning the motion
to reconsider the dismissal of the coram nobis petition, the petitioner attached the motion to
reconsider filed in the post-conviction action which alleged instances of ineffective
assistance of post-conviction counsel.

               On February 21, 2012, the coram nobis court summarily denied the petition for
writ of error coram nobis. In its order denying relief, the coram nobis court held that the
motion to reconsider filed in the post-conviction action was, in fact, ruled upon and denied
by the post-conviction court. The coram nobis court further held that any attack on the
performance of post-conviction counsel was not appropriate in a coram nobis action.

              On March 12, 2012, the petitioner filed a motion to reconsider the coram nobis
court’s denial of relief. In this motion, the petitioner alleged that newly discovered
unspecified evidence relating to the performance of both his trial and post-conviction
attorneys necessitated coram nobis relief. The petitioner also alleged that newly discovered
evidence related to “questions concerning the judgment and morality of the [post-conviction
judge]” warranted coram nobis relief. On March 19, 2012, the coram nobis court denied the
petitioner’s motion to reconsider without further findings.

               On March 28, 2012, the petitioner filed a notice of appeal. On appeal, he
argues that the coram nobis court should not have denied him relief without an evidentiary
hearing because the “newly discovered evidence” of the post-conviction judge’s drug
addiction affected the outcome of his post-conviction proceedings. The State asks that this
court dismiss the appeal based upon the untimeliness of the notice of appeal. Alternatively,
the State argues that none of the petitioner’s allegations call into question his guilt at trial and
that, therefore, the coram nobis court’s summary denial should be affirmed.

                The State correctly notes that the petitioner’s notice of appeal was untimely in
this case. The petitioner filed his notice of appeal 35 days after the coram nobis court entered
the order denying coram nobis relief in this case, outside the 30-day time limit prescribed by
Rule 4 of the Tennessee Rules of Appellate Procedure. See Tenn. R. App. P. 4(a) (“In an
appeal as of right to the . . . Court of Criminal Appeals, the notice of appeal required by Rule
3 shall be filed with and received by the clerk of the trial court within 30 days after the date
of entry of the judgment appealed from . . . .”). Although the defendant filed a motion to
reconsider within 30 days of the entry of the order, such a motion does not toll the time
period for filing a notice of appeal in this court. See Tenn. R. App. P. 4(c) (“In a criminal
action, if a timely motion or petition under the Tennessee Rules of Criminal Procedure is

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filed in the trial court by the defendant: (1) under Rule 29(c) for a judgment of acquittal; (2)
under Rule 32(a) for a suspended sentence; (3) under Rule 32(f) for withdrawal of a plea of
guilty; (4) under Rule 33(a) for a new trial; or (5) under Rule 34 for arrest of judgment, the
time for appeal for all parties shall run from entry of the order denying a new trial or granting
or denying any other such motion or petition.”). In consequence, the time for filing a timely
notice of appeal expired 30 days from the entry of the order on February 21, 2012. In
criminal cases, however, “the ‘notice of appeal’ document is not jurisdictional and the filing
of such document may be waived in the interest of justice.” See Tenn. R. App. P. 4(a). We
will excuse the untimely filing of the notice of appeal in this case.

               A writ of error coram nobis is an “extraordinary procedural remedy,” filling
only a “slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn.
1999). Coram nobis relief is provided for in criminal cases by statute:

              The relief obtainable by this proceeding shall be confined 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. 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.

T.C.A. § 40-26-105(b) (2006) (emphasis added); see State v. Vasques, 221 S.W.3d 514, 525-
28 (Tenn. 2007) (describing 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’”) (citation omitted). The decision to grant or deny coram nobis relief
rests within the sound discretion of the trial court. Vasques, 221 S.W.3d at 527-28.

               We note that a petitioner is not entitled to effective representation in a post-
conviction proceeding. See generally House v. State, 911 S.W.2d 705, 712 (Tenn. 1995)
(citing Pennsylvania v. Finley, 481 U.S. 551, 554-55 (1987) (holding that “the scope of the
right to counsel is limited and applies only through the first appeal as of right. It does not
apply to post-conviction relief”). Accordingly, the petitioner’s allegations concerning the
performance of post-conviction counsel raised in the original motion to reconsider the denial
of post-conviction relief and again in the present petition for coram nobis relief would never
avail the petitioner relief.

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               Furthermore, none of the allegations raised in the coram nobis petition
attacking the denial of post-conviction relief, including the petitioner’s allegation concerning
the post-conviction judge’s competency to preside over his 2008 post-conviction action, cast
doubt on the guilt of the defendant or the factual reliability of his 2004 conviction. Vasques,
221 S.W.3d at 526 (holding that “the standard to be applied is whether the new evidence, if
presented to the jury, may have resulted in a different outcome”). In consequence, the claims
are not justiciable in a coram nobis petition.

              Accordingly, we affirm the denial of coram nobis relief.


                                            _________________________________
                                            JAMES CURWOOD WITT, JR., JUDGE




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