                                                                                          04/26/2018

        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                               February 14, 2018 Session

         CLAUDE FRANCIS GARRETT v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                        No. 92-B-961   Seth Norman, Judge



                            No. M2017-01076-CCA-R3-ECN


In 2003, a Davidson County jury convicted the Petitioner, Claude Francis Garrett, of first
degree felony murder. On direct appeal, this court affirmed the Petitioner’s convictions.
See State v. Claude Francis Garrett, No. M2004-02089-CCA-R3-CD, 2005 WL
3262933, at *1 (Tenn. Crim. App., at Nashville, Dec. 1, 2005), perm. app. denied (Tenn.
May 1, 2006). This court denied the Petitioner’s subsequent petition for post-conviction
relief, Claude F. Garrett v. State, No. M2011-00333-CCA-R3-PC, 2012 WL 3834898, at
*1 (Tenn. Crim. App., at Nashville, Sept. 5, 2012), perm. app. denied (Tenn. Feb. 25,
2013), following which he filed a petition for a writ of error coram nobis that is the
subject of this appeal. The trial court issued an order summarily dismissing the petition.
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 THOMAS T.
WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

James A. Simmons, Hendersonville, Tennessee, for the appellant, Claude Francis Garrett.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Dan Hamm, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts

       This case arises from the Petitioner lighting his residence on fire after locking the
victim, his girlfriend, in a utility closet. The Petitioner was indicted for first degree
felony murder and a Davidson County jury convicted him as indicted. His conviction
was vacated on appeal when this court determined that the State had withheld
exculpatory evidence. Claude F. Garrett, 2012 WL 3834898, at *1. The Petitioner was
tried a second time and again convicted and sentenced to life in prison. Claude Francis
Garrett, 2005 WL 3262933, at *1. The Petitioner filed direct appeals following both his
first and second trial, as well as filed two petitions for post-conviction relief and appealed
those judgments. As a result, this court has filed four separate opinions in this matter and
summarized the facts in each one. See State v. Claude Francis Garrett, No. 01C01-9403-
CR-00081, 1996 WL 38105 (Tenn. Crim. App. Feb.1, 1996); Claude Francis Garrett v.
State, No. M1999-00786-CCA-R3-PC, 2001 WL 280145 (Tenn. Crim. App. March 22,
2001); State v. Claude Francis Garrett, No. M2004-02089-CCA-R3-CD, 2005 WL
3262933 (Tenn. Crim. App. Dec.1, 2005), perm. app. denied (Tenn. May 1, 2006);
Claude F. Garrett v. State, No. M2011-00333-CCA-R3-PC, 2012 WL 3834898, at *1
(Tenn. Crim. App., at Nashville, Sept. 5, 2012), perm. app. denied (Tenn. Feb. 25, 2013).
In the interest of judicial efficiency, we will include excerpts from the procedural history
of the case and recitation of the facts, relevant to the issues the Petitioner raises in this
appeal, contained in this court’s most recent opinion affirming the denial of the
Petitioner’s second post-conviction petition as it pertains to the Petitioner’s second trial:

               The Petitioner’s conviction for first degree murder arose from a
       charge that on February 24, 1992, he set fire to the Davidson County home
       that he shared with the victim, Lori Lance. The victim, who was the
       Petitioner’s girlfriend, was found by firefighters behind a closed door inside
       a utility room in the rear of the house. She died from smoke and gas
       inhalation. The State’s evidence showed that the utility room door was
       latched from the outside and that an accelerant was used to start the fire.

              The Petitioner originally was convicted by a jury in 1993 of first
       degree felony murder and sentenced to life imprisonment. The Petitioner’s
       conviction was affirmed on direct appeal. He subsequently filed for post-
       conviction relief, alleging that the State had withheld exculpatory evidence.
       On appeal from the trial court’s denial of post-conviction relief, this Court
       determined that the State, in fact, had withheld exculpatory evidence, and
       we vacated the Petitioner’s conviction and sentence and ordered a new trial.
       At his second trial, in 2003, a jury again convicted the Petitioner of first
       degree felony murder, and he was sentenced to life imprisonment. This
       Court affirmed the conviction on direct appeal.

             On April 17, 2007, the Petitioner filed a pro se petition for post-
       conviction relief, which was amended by appointed counsel on April 6,
       2010. The amended petition, which incorporated the pro se petition by
                                              2
reference, set forth three principal grounds for post-conviction relief: (1)
that new scientific evidence established that the Petitioner was innocent of
the offense for which he was convicted; (2) that the Petitioner received
ineffective assistance of counsel at his second trial; and (3) that the trial
court abused its discretion in allowing the State’s expert witness, James
Cooper, to testify.

        After an evidentiary hearing held August 30, and October 13, 2010,
the post-conviction court denied the petition, and the Petitioner now
appeals. On appeal, the Petitioner’s sole argument is that he received
ineffective assistance of counsel at his second trial. From our review of the
Petitioner’s appellate brief, we discern three facets to his ineffective
assistance of counsel claim: (1) that trial counsel failed to present evidence
that in the ten years between the first and second trials, the methods by
which the State’s expert witness Cooper reached his conclusion of arson
had been discredited by the scientific community; (2) that trial counsel
failed to advance the defense theory of an accidental fire by not calling the
treating physician, Dr. Robert Roth, as a witness regarding the burn patterns
on the bodies of the Petitioner and the victim; and (3) that trial counsel
failed to move for a mistrial when the State and the State’s witnesses
referenced the Petitioner’s prior trial.

        A more thorough summary of the facts adduced at trial can be found
in this Court’s opinion on direct appeal. In the interest of clarity and
conciseness, we will limit our recitation of the facts below to those relevant
to the issues the Petitioner raises on appeal.

          ....

               James Cooper testified that he had retired as an agent
       of the United States Department of Treasury Bureau of
       Alcohol, Tobacco and Firearms (ATF). As an ATF agent, he
       had been a certified fire investigator and a fire-cause and
       origin specialist. Because local authorities had requested that
       he assist in investigating the fire that killed the victim, he
       inspected the house on the evening of February 24, after the
       fire department had washed the flooring with a booster hose.
       He opined that the washing did not obstruct or hamper his
       observation of the burn pattern. He concluded that the fire
       began in the front room. He found no evidence of an
       electrical or other accidental cause of the fire. A kerosene
                                      3
      heater found in the bedroom was not the cause of the fire. He
      discovered a saturation of kerosene in the kitchen. The utility
      room door was closed during the fire. Mr. Cooper testified
      that [Metro Fire Department Captain] Otis Jenkins told him
      that he had “had to use two hands to slide the bolt on the latch
      to the other side to open the door.”

              Mr. Cooper testified that he collected material from
      beneath the baseboard in the front room because liquid spilled
      in the floor would typically run under a baseboard and
      because the flooring beneath the baseboard was free of foot
      traffic occurring during and after the firefight. Also, he found
      a “V” pattern on the baseboard, which to him was “like a red
      flag waving at you,” indicating an accelerated fire. Mr.
      Cooper presented a number of pictures and slides of the fire
      scene. He opined, “[T]his was a deliberately set fire, arson.
      Somebody went into the house, and their design, their intent,
      was to spread the fire from the front room to the back where
      the victim was.”

              Defense counsel engaged Mr. Cooper in a rigorous
      cross-examination, during which the witness testified that the
      kitchen floor contained “[q]uite a bit of water,” that a portion
      of the liquid on the bedspread was water, and that he relied
      upon Detective Miller’s report of his interviews of the
      firefighters and did not interview them personally other than
      to talk with Otis Jenkins. Mr. Cooper did not see the house
      before the booster-hose cleansing and did not see the front-
      room furniture in its pre-fire position. He insisted, however,
      that the flooring in the front room evinced a “pour pattern,”
      indicating that a liquid accelerant had been poured in the
      floor. He admitted that polyester from furniture could melt
      onto the floor and simulate a pour pattern but maintained that
      he could distinguish a pour pattern from a polyester
      meltdown. He admitted that one photograph showed that the
      latch bar was dark, as if it was coated in carbon, which might
      indicate that the bar was not inserted into the latch housing
      during the fire.

For purposes of this opinion, we supplement our prior summary of
Cooper’s testimony with the following relevant facts. During cross
                                     4
            examination, trial counsel asked Cooper to describe “flashover.”1 Cooper
            explained that flashover occurs when “everything in [a] room reaches its
            combustible ignition.” As a fire in a room grows, superheated gases rise
            until they become trapped by the ceiling and begin to bank down towards
            the floor. Eventually, the “whole room will be in fire, from the ceiling
            down to the floor. That is a flashover.” Cooper acknowledged that the
            living room in this case appeared to have been fully involved in fire.
            Cooper also acknowledged that flashover can occur with or without the use
            of an accelerant and that the radiant heat caused by flashover can create
            burn patterns on the floor because the heat ignites the floor.

                   Trial counsel asked Cooper whether he could distinguish burn
            patterns on a floor caused by radiant heat from those created after pouring
            and igniting an accelerant on the floor. Cooper answered:

                            [R]adiant heat normally, normally, will burn, coming
                    from the ceiling down, uniformly, even. A pour pattern will
                    be irregular and into the floor[,] into the wooden material.
                    But the radiant heat can, also, indicate a pour pattern if the air
                    movement changes. As an investigator you have to realize
                    that. And that’s why you have to be careful not to jump the
                    gun. I am satisfied in front of that door, inside the front door,
                    is radiant heat. I am satisfied in the center of the living room,
                    near that window, there is a pour pattern.

                   Trial counsel asked Cooper on what scientific basis he formed his
            opinion that a pour pattern existed on the living room floor. Cooper replied
            that he used his experience and training in determining the presence of a
            pour pattern. Cooper elaborated:

                           I have set fires . . . pouring things. I have spilt [sic]
                    things, to see the difference in an accidental spill and a
                    deliberate pour. I have talked to other investigators, where
                    they call radiant heat arson. They call it a pour pattern.
                    Through my training, I can make that distinction from pour
                    pattern versus radiant heat. Now radiant heat can be
                    irregular. It all depends on what is going on inside the
                    interior of that building at the time.


1
    “Flash over” and “flashover” have been used interchangeably throughout the record and transcripts.
                                                           5
      When asked about the possibility of error in his analysis, Cooper
responded:

               I don’t know. I mean, all I can testify to is, I’ve done
       pours. I’ve done accidental spills. I have been on another
       fire fatality where another investigator called radiant heat a
       pour pattern, and I actually said, it is radiant heat. Just
       through my training and experience.

              . . . [I]f I’m proven wrong I will admit I am wrong.
       But on this one, no sir. I was there. I saw it with my eyes.
       And, I know the difference in radiant heat and a pour pattern,
       sir.

       Trial counsel then asked Cooper whether he performed his fire
investigations using the scientific method, which trial counsel defined as
“defining a problem, collecting relevant data, and then analyzing that data
and applying it to the problem.” Cooper replied that he did so in this case.
Cooper explained that when forming his hypothesis certain things stood
out:

               [A]ll these abnormal things come together[.] [N]ot
       one thing stands by itself. The pour pattern in the living room
       does not stand by itself. You have to have the bedspread.
       You have to have the kerosene can. You have got to have
       that latch on the door. You have got to have the smoke alarm.
       And you have got to have where [the victim] was found, and
       what was on top of [the victim]. That is the hypothesis. The
       hypothesis is the cause of the fire, which was arson . . . .

       ....

The defense’s theory at trial was that the fire was accidental. As part of this
strategy, the defense sought to prove that the burn patterns on the living
room floor were caused by radiant heat during flashover. The defense also
sought to prove that the burn patterns on the bodies of the victim and the
Petitioner were similar. The defense proposed that the similarity of their
burns proved that they had been exposed to the fire at the same time, thus
negating the possibility that the Petitioner locked the victim in the utility
room and started the fire. In this Court’s prior opinion, we summarized the
testimony of the defense’s expert witness, Stuart Bayne:
                                      6
              Stewart [sic] Bayne testified for the defendant as an
      expert in fire investigation and fire science.               He
      acknowledged that he did not visit the scene of the fire until
      after the house had been restored but maintained that he has
      testified in other cases despite being unable to personally
      inspect the fire scene. In the present case, he studied the
      records from the first trial, interviewed the firefighters, and
      examined the pictures.

      Testifying at trial, Bayne summarized the defense’s theory as
follows:

             This fire was a Class A fueled with paper and plastic
      fabrics, accidental naturally growing, meaning unaccelerated
      by any petroleum compound type fire. Secondly, analysis of
      the burn patterns on Ms. Lance and Mr. Garrett prove that
      Ms. Lance and Mr. Garrett were exposed to that fire at the
      same point in time with the fire as the fire growth.
      Furthermore, their burn patterns indicate a directional quality
      to the fire, and a height in the room to the fire. My findings
      included that this fire was not fueled by kerosene, the point of
      origin was not on the floor, rather it was in the love seat. And
      the ignition source was the carelessly dropped cigarette from
      an intoxicated, wasted as it were, person.

As we stated in our prior opinion:

             Mr. Bayne elaborated that based upon the medical
      reports, the victim and the defendant sustained burns on their
      faces and left arms as a result of being exposed to the flames
      in the living room at the same time. He opined that because
      the burns were on the upper portions of the victim and the
      defendant, the fire did not originate in the floor. He believed
      that the burns on the couple were consistent with them trying
      to reach the front door and with the defendant’s statement to
      him that, after a night of drinking, the couple returned home
      and smoked cigarettes, with the victim falling asleep on the
      love seat and the defendant falling asleep on the couch.



                                     7
              Mr. Bayne opined that the fuel load in the front room,
       including the furniture and the wood paneling covering the
       sheetrock walls, explained the fire growth. He opined that the
       defendant did not receive his burns from igniting kerosene
       and that it was “impossible” for the victim to have received
       her burns from inside the utility room. He dismissed the burn
       pattern on the front room floor as resulting from radiant heat
       or “flash over.”

              Mr. Bayne testified that the utility room door edge had
       scuff marks which indicated that the door stuck in the door
       frame. He testified that the defendant confirmed to him that
       the door tended to stick. Mr. Bayne opined that the latch bar
       was “very carbonized.”

              On cross-examination, Mr. Bayne testified that in
       reaching his conclusions, he ignored Otis Jenkins’ claim that
       the utility room door had been latched. He declined to say
       how much time elapsed between the deposit of a lit cigarette
       in the love seat and the onset of a blaze, although he
       suggested that the process could take minutes or hours. He
       opined that the presence of the plastic container of kerosene
       in the kitchen was irrelevant to the cause of the fire. He
       conjectured that because the container had three holes in the
       top, the firefighters or investigators could have sloshed some
       of the kerosene onto the bedspread.

       In addition to these facts, we note that Bayne testified that the
alleged area of origin had “a very uniform floor burn pattern indicative of
radiant heat and flash over.” Regarding the burn injuries to the bodies of
the victim and the Petitioner, Bayne disagreed with Dr. Harlan’s
conclusions. Bayne explained that burn patterns on bodies can tell an
investigator about the relative intensity of a fire, the direction of the heat
source relative to a person’s body, and a fire’s developmental timeline.
Bayne reviewed the medical records and autopsy in this case, and he
compared and analyzed the burn patterns on the victim and the Petitioner.
Bayne asserted that the body burns were consistent with the version of
events that the Petitioner had relayed to him. He testified that the Petitioner
had told him that the Petitioner had awoken to a fire, grabbed the victim’s
hand, and headed to the front door, exposing their left sides to the fire. At
that point, as the Petitioner was attempting to open the front door, the
                                      8
victim retreated into the house. Bayne said that it was “impossible” for the
victim to have received her burns in the utility room because the utility
room never reached a temperature adequate to deliver the particular types
of burns that the victim sustained. Bayne also explained that kerosene is
not volatile or flammable like gasoline and will not explode upon ignition.
Thus, the Petitioner could not have received his burns by igniting kerosene.
After comparing the burn patterns for the jury, Bayne opined that “those
two human bodies were standing in the same place at the same time in the
relative intensity of the fire, from the growth of the fire.”

       After hearing this and other evidence, the jury found the Petitioner
guilty of first degree felony murder.           He was sentenced to life
imprisonment. His conviction was affirmed on appeal, and he filed the
instant petition for post-conviction relief alleging ineffective assistance of
counsel.

                      Evidence at Post-Conviction Hearing

       A post-conviction hearing was held over two days, August 30, and
October 13, 2010. At the hearing, the post-conviction court heard the
testimony of John Joseph Lentini, trial counsel, Bayne, the Petitioner, and
Dr. Robert Roth.

        Lentini testified as an expert in the field of fire analysis and fire
science. Lentini stated that he had personally investigated over 2,000 fires
but that he primarily reviews the fire investigations of others. Lentini is
certified by the National Association of Fire Investigators and the
International Association of Arson Investigators (“IAAI”), and he discussed
in detail his education, qualifications, and peer-reviewed publications.

        Lentini claimed to be familiar with the history and development of
fire science and investigation. He defined “fire science” as “the application
of the laws of chemistry and physics to the investigation of fires.” Lentini
said that he is a member of the National Fire and Protection Association
(“NFPA”) Technical Committee, which is responsible for the maintenance
of NFPA 921, Guide for Fire and Explosion Investigations. Lentini stated
that NFPA 921 presently represents the standard of care in fire
investigations. In 1985, the NFPA Standards Council “became concerned
about the quality of work that they saw in fire investigations” and produced
NFPA 921 as a guide for fire investigators. NFPA 921 was first published
in 1992 and gained gradual acceptance over the following years.
                                      9
According to Lentini, in 2000, the United States Department of Justice
embraced NFPA 921 as a benchmark and the IAAI called it the de facto
standard of care. Lentini stated that it was the embrace of the scientific
method that led to the acceptance of NFPA 921 as the standard of care in
the field. On cross-examination, Lentini acknowledged that NFPA 921 had
undergone revisions since its original publication in 1992. Lentini believed
that such revisions represented a feature of NFPA 921 as it is “constantly
reviewed by the fire investigation community, commented on, and
maintained as a standard.”

       Lentini discussed certain “mythologies” of arson investigation,
which he claimed many arson investigators previously embraced but have
since been discredited by the scientific community. Lentini read from a
National Academy Report on the State of Forensic Science issued in
February, 2009. Specifically, the concluding paragraph of the report’s
discussion on fire and arson investigation, stated as follows:

              By contrast, much more research is needed on the
       natural variability of burn patterns and damage characteristics
       and how they are affected by the presence of various
       accelerants. Despite the paucity of research, some arson
       investigators continue to make determinations about whether
       or not a particular fire was set.

               However, according to testimony presented to the
       committee, many of the rules of thumb that are typically
       assumed to indicate that an accelerant was used (e.g.,
       alligatoring of wood, specific char patterns) have been shown
       not to be true. Experiments should be designed to put arson
       investigations on a more solid scientific footing.

       Lentini testified that he had reviewed portions of the record in this
case, including Cooper’s trial testimony, Cooper’s investigation report, and
photographs of the fire scene. Lentini stated that from reviewing the
photographs, “it was pretty clear that the fire originated in the living room,
[and] it was pretty clear that it went to flashover.” Lentini explained further
that, when fires achieve flashover, they light the floor on fire. A lot of
time—in fact, early in my career that was considered to be a suspicious
thing because fires burn up and the floor shouldn’t burn, but it is now pretty
well accepted that when a room becomes fully involved one of the things

                                      10
that is going to burn is the floor and you, typically, get irregular burns on
the floor.

       When asked whether he had identified any “mythology” in this case,
Lentini responded:

              The only mythology is the belief on the part of the
       investigator that he can, by looking at the floor, determine the
       difference between charring done by radiation and charring
       caused by a flammable liquid.

               Then he goes one step further and believes that he can
       tell the difference between flammable liquid charring caused
       by a spill, an accidental spill, or flammable liquid charring
       caused by an intentional pour, and that is just beyond the
       scope in terms of what is valid or what is generally accepted
       as valid in fire investigation.

        Trial counsel also testified at the post-conviction hearing. At the
time of the hearing, trial counsel had practiced criminal defense law for
fifteen years. Trial counsel represented the Petitioner in his prior successful
post-conviction proceedings and continued to represent the Petitioner
during the second trial. Trial counsel recalled hiring Bayne as an expert in
arson investigation to assist the defense in proving that the fire had not been
intentionally set. Trial counsel relied on Bayne to assist him in preparing
for and examining the State’s expert witnesses. He stated that he had “lots
of meetings” with Bayne in preparation for trial.

       Bayne, who qualified as an expert at the second trial, was also
qualified as an expert in fire analysis at the post-conviction hearing. He
stated that he first became involved in the case in the fall of 2001. He
explained that his role on the defense was to “render an independent origin
and cause determination” as to the fire and to offer his analysis at trial. In
order to do so, he communicated with trial counsel and the Petitioner,
reviewed the case file, and interviewed firefighters who responded to the
scene. He explained that all of his efforts were “toward rendering a
technically defensible opinion.”

       Trial counsel planned to use Bayne’s expertise to show that
flashover had occurred and that the radiant heat caused by flashover had
caused the burn patterns on the floor. Trial counsel also intended to use
                                      11
Bayne’s testimony regarding the burn patterns on the bodies of the victim
and the Petitioner to advance the defense’s theory that the two had been in
close proximity to one another at some point during the fire.

       . . . Bayne told trial counsel that the evidence Cooper intended to
offer was not generally accepted in the scientific community, “especially
since 1992.” Bayne wrote that in order to rebut Cooper’s testimony
regarding the pour pattern, “I will use the most commonly accepted
publications in the industry and the best consensus document in the field
(NFPA 921).” However, Bayne also cautioned trial counsel that he would
“lose this [Daubert] challenge because [Cooper] possesses the credentials
on paper.”

       In a May 16, 2003 document, Bayne recommended that trial counsel
ask Cooper “technical questions” related to flashover conditions and
effects. Bayne also recommended trial counsel ask Cooper what the
“current fire technology journals, books, and other treatises say about the
damages inflicted upon wood and carpeted floors at flashover-and during
postflashover-condition fires.” However, Bayne warned trial counsel that
“[t]he problem with this line of questioning is that [Cooper] will be
responding as one who has learned much in the 11 years since the fire,
when he probably could not have answered these questions adequately in
1993.”

        . . . In preparation for trial, Bayne sent several emails to trial counsel
discussing his findings regarding the cause of the fire and various strategies
for effectively communicating his conclusions at trial. At the post-
conviction hearing, Bayne identified an email to trial counsel in which
Bayne relayed his belief that flashover occurred. Bayne also identified a
document that he prepared titled “Bayne Direct Testimony,” which
contained proposed questions for his direct examination. Bayne gave
several examples of questions on the list that trial counsel did not ask him.
Notably, the proposed list of questions for Bayne’s direct examination does
not contain questions related to NFPA 921 or changes in the understanding
of fire science related to pour patterns in the years between the two trials.

        Bayne also discussed several excerpts from the 2001 edition of the
NFPA 921, which he claimed that he intended to discuss at trial but was not
questioned about by trial counsel. Bayne said that one of the excerpts
illustrated “graphically how a fire grows and what happens with the
influence of radiant heat in pre-flashover conditions, flashover conditions,
                                       12
and post-flashover or full room involvement.” Another excerpt showed the
“approximate radiant heat flux” required to cause certain burn injuries to
human skin.

      ....

                        Post-Conviction Court’s Findings

       After hearing this testimony, the post-conviction court denied the
Petitioner’s claim for post-conviction relief by written order entered
December 17, 2010. In its order denying relief, the post-conviction court
addressed a myriad of issues raised by the Petitioner and made several
relevant findings.

       First, the post-conviction court analyzed the Petitioner’s claim that
new scientific evidence established his innocence. In doing so, the post-
conviction court reviewed the testimony of Lentini and the scientific
conclusions that “much more research is needed on the natural variability of
burn patterns and damage characteristics and how they are affected by the
presence of various accelerants” and that many of the “generally accepted
methods of analysis indicating the use of an accelerant have been proven to
be unreliable.”

      The post-conviction court found Lentini’s testimony to be
unavailing, stating that:

             Mr. Lentini only testified about his record and
      accomplishments but nothing relevant to the case under
      examination. He simply stated that the fire in question was
      not started by the use of an accelerant but provided no basis
      upon which this conclusion was founded. Mr. Lentini
      basically just testified as to his opinion of the science and its
      evolution.

      The post-conviction court also found that Cooper’s trial testimony
accounted for the possibility that radiant heat damage could sometimes be
mistaken for a pour pattern:

             Agent Cooper testified as to various “V-patterns”
      discovered in the house which he explained would indicate
      the use of an accelerant in the spread of a fire. With regard to
                                     13
             such a pattern discovered underneath some baseboard
             removed from the living room, he stated that radiant heat
             damage can sometimes be mistaken for a pour pattern by less
             experienced investigators but that he possessed extensive
             experience that provided him with the ability to differentiate
             between the two. Agent Cooper apparently believed that the
             evidence pointed to the existence of an accelerant on the
             baseboard due to the fact that an accelerant would normally
             run underneath baseboards in this fashion. He also admitted
             that polyester meltdown from furniture could appear as a pour
             pattern[,] but he adamantly averred that he could discern
             between the two based upon his experience as a fire
             investigator.

             The post-conviction court ultimately concluded that the Petitioner
      had “failed to submit sufficient proof at the evidentiary hearing to show that
      the fire analysis and investigation in this case was erroneous based upon
      obsolete techniques that have since been debunked.”

Garrett, 2012 WL 3834898 at *1-14 (citations omitted).

       In holding that the Petitioner’s trial counsel had not been ineffective for his
alleged failure to present evidence linked to the advancements in fire science, this court
made the following statements regarding the evidence presented at trial and at the post-
conviction hearing:

      [F]rom the testimony at trial as well as the post-conviction hearing, it is
      apparent that burn patterns may be left on a floor during a fire either
      through the use of an accelerant or through radiant heat during flashover (or
      presumably, both). Critically, neither Bayne’s nor Lentini’s testimony at
      the post-conviction hearing negated the possibility that a burn pattern could
      be left from the ignition of an accelerant.

              At trial, Cooper repeatedly stated that a burn pattern can be caused
      by either the ignition of an accelerant or radiant heat. Cooper believed that
      the burn patterns in this case were indicative of accelerant use while Bayne
      believed they were caused by radiant heat. Thus, the two possible
      interpretations of the burn patterns were presented to the jury even if the
      fact that the scientific understanding of burn patterns had changed was not.

             ....
                                           14
         Cooper readily acknowledged that flashover can create burn patterns and
         that it appeared to him that the living room underwent flashover. That is,
         Cooper was aware of the alleged flaw in his methodology. Cooper
         maintained that, from his experience, and taking all factors into account, he
         believed that the burn patterns had not been created through flashover.

Id. at *20-21.

       In this most recent filing, a petition for a writ of error coram nobis, the Petitioner
contended that “newly-obtained scientific evidence” would prove that he was not guilty
of first degree murder and would prove that the State’s evidence at trial was
“scientifically inaccurate and untrue.” He contended that the “newly-obtained” evidence,
attached to the petition, were reports and affidavits from various experts who presented
scientific evidence made available in 2016, and that the evidence may have resulted in a
different judgment.

         On April 20, 2017, the trial court issued an order denying relief. The trial court
found:

                The grounds upon which the [P]etitioner bases his Petition for Writ
         of Error Coram Nobis have already been litigated. The Petition[er] has
         attached three [written] reports [to his petition], the first two authored by
         Craig Beyler, Ph.D., and the second by John J. Lentini, CFI. Each of the
         reports base their findings on an analysis of the evidence and testimony
         presented at the Petitioner’s trials. Their analysis is based on the method
         embodied in NFPA 921. To quote Mr. Lentini’s report, “[s]ince 2000, the
         NFPA 921 has come to be generally accepted by the relevant scientific
         community. Not only was this information available to trial counsel at the
         time of the second trial, Mr. Lentini himself testified at the subsequent
         hearing on the Petition for Post-Conviction Relief. Dr. Beyler’s reports
         merely bolster the opinion and analysis offered by Mr. Lentini. Far from
         being newly discovered evidence, the attached exhibits represent evidence
         and issues which have already been litigated. The issue is without merit.

         It is from this judgment that the Petitioner appeals.

                                          II. Analysis

      On appeal, the Petitioner argues that, because newly discovered evidence entitles
him to relief, the trial court erred when it summarily dismissed his petition for a writ of
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error coram nobis. The Petitioner submits that he did not have access to the new
scientific information relied on in Dr. Beyler’s and Mr. Lentini’s reports until 2016. He
claims the scientific information showed that the original investigation of the fire was
“scientifically bogus” and might have secured his acquittal. The State responds that the
reports are merely “newly written opinions” of the evidence presented at trial by the
Petitioner’s expert witness and thus do not constitute “newly discovered evidence.” The
State further alleges that the petition was time-barred.

        A writ of error coram nobis is available to a defendant in a criminal prosecution.
T.C.A. § 40-26-105(a) (2014). 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). The decision to grant or to
deny a petition for the writ of error coram nobis on its merits rests within the sound
discretion of the trial court. Ricky Harris v. State, 301 S.W.3d 141, 144 (Tenn. 2010)
(citing State v. Vasques, 221 S.W.3d 514, 527-28 (Tenn. 2007)). We, therefore, review
for abuse of discretion. See State v. Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App.
2002). Tennessee Code Annotated section 40-26-105(b) provides, in pertinent part:

       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.

       A petition for a writ of error coram nobis “‘may be dismissed without a hearing,
and without the appointment of counsel for a hearing’” if the petition does not allege
facts showing that the petitioner is entitled to relief. Bernardo Lane v. State, No. W2008-
02504-CCA-R3-CO, 2009 WL 4789887, at *5 (Tenn. Crim. App., at Jackson, Dec. 11,
2009), perm. app. denied (Tenn. June 17, 2010) (citations omitted). “As a general rule,
subsequently or newly discovered evidence which is simply cumulative to other evidence
in the record . . . will not justify the granting of a petition for the writ of error coram
nobis when the evidence, if introduced,” might not have resulted in a different outcome.
State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App. 1995) (citations omitted); see also
Vasques, 221 S.W.3d at 525-28 (noting that proper standard of review is whether the
proffered evidence “might have” resulted in a different outcome rather than whether it
“would have” resulted in a different one).

      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
                                            16
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, 301 S.W.3d at 144 (citing
Mixon, 983 S.W.2d at 670. The State bears the burden of raising the statute of limitations
as an affirmative defense. Harris, 301 S.W. 3d at 144 (citation omitted).

        In the present case, the State contends on appeal that the Petitioner’s filings are not
timely. The judgment in the Petitioner’s second trial became final on July 30, 2004,
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 March 31, 2017,
more than twelve years later. The State contends in its brief that it failed to raise the
statute of limitations as an affirmative defense at the trial level because it was not given
the opportunity to do so. The trial court dismissed the petition twenty days after the
Petitioner filed it, and before the State filed a response. The State also contends that the
trial court did not address the statute of limitations issue when it summarily dismissed the
petition. The Petitioner does not address this issue in his brief.

        Because the trial court addressed the Petitioner’s filings on the merits, and did not
address the issue of whether the statute of limitations was a valid defense in this case, we
will also review the case on the merits.

       We now turn to address the Petitioner’s argument that he was entitled to coram
nobis relief. The convicting and sentencing jury heard substantial evidence concerning
the various experts’ opinions about the cause of the fire that resulted in the victim’s
death. The State’s expert, Agent Cooper, testified, in simple terms, that the fire was
caused by an accelerant being poured on to the floor of the residence, as indicated by the
burn patterns on the floor; in other words, it was intentional. On cross-examination,
Agent Cooper acknowledged that a “flashover” appeared to have been present in the fire,
which he stated could have occurred with or without the use of an accelerant and could
have created the burn patterns. The Petitioner’s expert, Mr. Bayne, testified that the fire
was fueled not by kerosene but by paper and plastic and was ignited by a cigarette being
dropped inadvertently. At subsequent post-conviction hearings, Mr. Bayne and another
expert, Mr. Lentini, both testified that the fire had not been intentionally set. Mr. Lentini
reviewed Agent Cooper’s testimony and investigation and declared that Agent Cooper
had relied on an out-of-date and invalid method of fire investigation that had been
discredited by the science community.

        To his petition for error coram nobis relief, the Petitioner attached a report from
Mr. Lentini, offering another opinion on how the fire was ignited, and a report from a
new expert, Craig Beyler, with a second new opinion on the cause of the fire. Neither of
these reports constitutes “new evidence” as statutorily defined. Rather, as the trial court
stated, both reports are merely new opinions on already-presented evidence. How the fire
                                              17
was started was an issue of fact to be decided by a jury, and it was within the jury’s
purview to credit or discredit the testimony of the experts who stated that it was started
intentionally or otherwise.

       As the trial court succinctly laid out in its order denying relief, the Petitioner’s
claims do not raise newly discovered evidence and, we conclude, therefore, that the trial
court properly denied the Petitioner’s petition for a writ of error coram nobis. The
Petitioner is not entitled to relief.

                                     III. Conclusion

     Based upon the foregoing reasoning and authorities, we affirm the trial court’s
judgment.



                                             ____________________________________
                                                  ROBERT W. WEDEMEYER, JUDGE




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