        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON

               FREDERICK MOORE v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Madison County
                      No. C14174 Roy B. Morgan, Jr., Judge




                No. W2014-01740-CCA-R3-ECN - Filed April 9, 2015


Appellant, Frederick Moore, appeals the denial of his petition for writ of error coram nobis
in which he challenged his convictions for first degree premeditated murder, felony murder,
aggravated kidnapping, and two counts of tampering with evidence and his effective sentence
of life imprisonment plus twenty years. We affirm the judgment of the coram nobis court
pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
        Pursuant to Rule 20 of the Rules of the Court of Criminal Appeals

R OGER A. P AGE, J., delivered the opinion of the Court, in which JOHN E VERETT W ILLIAMS
and A LAN E. G LENN, JJ., joined.

Frederick Moore, Tiptonville, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; and Benjamin A. Ball, Senior
Counsel, for the appellee, State of Tennessee.

                              MEMORANDUM OPINION

        Appellant was convicted of premeditated first degree murder, felony murder,
aggravated kidnapping and two counts of tampering with evidence. Appellant’s convictions
resulted from the murder of Latonya Cole, his ex-girlfriend, on the day before they were
scheduled to appear in court regarding child support payments. The evidence presented at
trial included the testimony of Brad and Dennis Smartt, who lived near the victim. See State
v. Frederick Lamont Moore, No. W2009-01266-CCA-R3-CD, 2011 WL 856379, at *2
(Tenn. Crim. App. Mar. 9, 2011). They both saw a vehicle matching the description of
appellant’s car parked in their driveway between 12:00 and 12:30 a.m. Id. At approximately
1:00 a.m., Brad Smartt saw a man and a woman walk into his yard from the direction of the
victim’s home. Id. The man was helping the woman as though she was injured, and the
woman appeared “[j]ell-o-like.” Id. The man helped the woman into the car, picking up her
feet to get her inside. Id. Based upon this testimony and other evidence, appellant was
convicted as charged.

       The trial court merged appellant’s murder convictions and imposed an effective
sentence of life plus twenty years. This court affirmed appellant’s convictions on direct
appeal. See id. at *1.

       Appellant then filed a petition for post-conviction relief alleging that he received
ineffective assistance of counsel at trial. The post-conviction court denied relief, and this
court affirmed the post-conviction court’s judgment on appeal. See Frederick Moore v.
State, No. W2012-02189-CCA-R3-PC, 2013 WL 6001928, at *1 (Tenn. Crim. App. Nov. 6,
2013).

       On July 15, 2014, appellant filed a petition for writ of error coram nobis in which he
alleged newly discovered evidence. It consisted of photographs of the outside of the victim’s
residence, photographs of the outside of the Smartts’ residence, and measurements of the
area. Appellant maintained that the evidence discredited the testimony of the Smartts. On
July 23, 2014, the State filed a response maintaining that appellant’s petition was time-barred
and without merit. On August 14, 2014, the trial court entered an order dismissing the
petition. The trial court found that the petition was time-barred and that the evidence relied
upon by appellant was easily obtainable at the time of the trial. This appeal followed.

        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)
(citation omitted). Tennessee Code Annotated section 40-26-105(b) provides that coram
nobis relief is available in criminal cases as follows:

       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.



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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.” State v. Vasques, 221 S.W.3d 514, 525-28 (Tenn. 2007) (citation
omitted).

        Coram nobis claims may be based upon any “newly discovered evidence relating to
matters litigated at the trial” so long as the petitioner establishes that he or she was “without
fault” in failing to present the evidence at the proper time. Harris v. State, 102 S.W.3d 587,
592 (Tenn. 2003). Coram nobis claims are “singularly fact-intensive,” are not easily resolved
on the face of the petition, and often require a hearing. Id. at 592-93. 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.

        A petition for the writ of error coram nobis must relate: (1) the grounds and the nature
of the newly discovered evidence; (2) why the admissibility of the newly discovered evidence
may have resulted in a different judgment had the evidence been admitted at the previous
trial; (3) that the petitioner was without fault in failing to present the newly discovered
evidence at the appropriate time; and (4) the relief sought by the petitioner. Freshwater v.
State, 160 S.W.3d 548, 553 (Tenn. Crim. App. 2004). Newly discovered evidence is
evidence that was unknown to the defendant at the time of the proceedings which are the
subject of the coram nobis claim. Wlodarz v. State, 361 S.W.3d 490, 506 (Tenn. 2012). It
has been repeatedly held that a coram nobis court is not required to hold an evidentiary
hearing when a petition for the writ of error coram nobis fails to meet the necessary
prerequisites for granting relief. Cole v. State, 589 S.W.2d 941, 941-43 (Tenn. Crim. App.
1979).

        Coram nobis claims are subject to a one-year statute of limitations. Tenn. Code Ann.
§ 27-7-103. 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 v.
State, 301 S.W.3d 141, 144 (Tenn. 2010). The issue of whether a claim is barred by an
applicable statute of limitations is a question of law, which this court reviews de novo. Id.
We must 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 one-year statute of limitations may be tolled on due process grounds if the
petitioner seeks relief based upon newly discovered evidence. Wilson, 367 S.W.3d at 234.
In determining whether tolling is proper, the court must balance the petitioner’s interest in
having a hearing with the State’s interest in preventing a claim that is stale and groundless.

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Harris, 301 S.W.3d at 145 (citing Workman v. State, 41 S.W.3d 100, 102 (Tenn. 2001)).
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 consists of three steps:

       (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).

        Appellant’s judgments were entered in February and March of 2009, and appellant did
not file his petition for writ of error coram nobis until July of 2014 more than four years after
the one-year statute of limitations expired. Evidence in the form of photographs of the two
residences and measurements as illustrated in the photographs is not “later-arising,” and
appellant was not prevented from presenting the claim at an earlier time. Appellant failed
to establish that the evidence was unavailable to him or trial counsel at the time of trial.
Accordingly, the appellant’s claim is time-barred, and due process does not warrant tolling
of the statute of limitations.

        When an opinion would have no precedential value, the Court of Criminal Appeals
may affirm the judgment or action of the trial court by memorandum opinion when the
judgment is rendered or the action taken in a proceeding without a jury and such judgment
or action is not a determination of guilt, and the evidence does not preponderate against the
finding of the trial judge. See Tenn. Ct. Crim. App. R. 20. We conclude that this case
satisfies the criteria of Rule 20. The judgment of the trial court is affirmed in accordance
with Rule 20, Rules of the Court of Criminal Appeals.




                                                     _________________________________
                                                     ROGER A. PAGE, JUDGE




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