Antonio Munford v. State of Tennessee

02/26/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
November 7, 2017 Session

ANTONIO MUNFORD v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County
No. 00-05477 W. Mark Ward, Judge
___________________________________

No. W2016-02593-CCA-R3-PC
___________________________________

The Petitioner, Antonio Munford, filed a petition for writ of error coram nobis relief and
a petition for post-conviction relief. Following a hearing on the petitions, the trial court
denied relief, finding that the Petitioner’s post-conviction claims were time-barred and
that the coram nobis claims were without merit. On appeal, the Petitioner contends that
he is entitled to due process tolling of the post-conviction statute of limitations and that
the trial court abused its discretion in denying coram nobis relief. Following a thorough
review of the record and applicable law, we affirm the judgment of the trial court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Michael R. Working, Memphis, Tennessee, for the appellant, Antonio Munford.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Paul Hagerman,
Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual and Procedural Background

Trial Proceedings

On May 18, 2000, the Petitioner was indicted, along with co-defendants William
Johnson, Mario Perry, and David Bond, for first degree felony murder in the perpetration
of robbery in the death of Adnan Ali. Following his indictment, trial counsel was
appointed to represent the Petitioner. In its order denying post-conviction and coram
nobis relief, the trial court provided a summary of the underlying facts from the
Petitioner’s trial, as follows:

The State’s principal witness was Fouad Ali. He testified that in the
early morning hours of October 13, 1999, he was working at the Oil City
convenience store located on Third Street in Memphis when three men
entered the store. One of the men eventually pulled a shotgun from under
his clothing and demanded that he lay on the floor. Meanwhile, another
man, whom he identified in court as [the Petitioner], jumped on the counter
and grabbed the store’s gun, a .357 revolver, and tried to open the cash
register. [The Petitioner] could not figure out how to open the register, so
Mr. Ali told him which button to push. [The Petitioner] then opened the
register and got the money out of the register. While this was taking place,
Mr. Ali’s brother, who had been sleeping in the back, came out of the back
and [the Petitioner] shot him with the .357 revolver. Mr. Ali’s brother died
as a result of a single gunshot wound to his head. After the shooting, the
three men left the store. Approximately $200 was taken in the robbery.

The store was equipped with a surveillance video. Exhibits 7-9
show the robbery in progress. In addition multiple photographs taken from
frames of the videos were also introduced into evidence. The next day after
the robbery, [the Petitioner] was identified as a suspect. On that same day,
Mr. Ali identified [the Petitioner] in a photospread as the man who took the
money from the cash register and who shot his brother. Again, on the day
after the shooting, [the Petitioner] was brought in for questioning and gave
two statements to the police.

First statement: In his first statement [the Petitioner] indicated that
before he went into the store . . . Mario Perry, David [Bond] and [the
Petitioner’s] uncle, William Johnson discussed robbing the Oil City in his
presence. According to [the Petitioner], when [Mr. Bond] asked him how
he felt about robbing the store, [the Petitioner] asked to be taken home.
However, after [Mr. Bond] advised him that it would be a simple in and out
situation, [the Petitioner] decided to go into the store to make a purchase.
[The Petitioner] further stated that[,] when he came to the counter, [Mr.]
Perry pulled out the shotgun and ordered the man to lie down. [Mr. Perry]
then told [the Petitioner] [to] grab the money, but [the Petitioner] hesitated,
after which [Mr. Bond] entered the store and both [the Petitioner] and [Mr.
Bond] grabbed the money from the cash register. [The Petitioner] then
stated he heard a shot, after which, the four men all left the store. In this
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 statement, [the Petitioner] denied responsibility for killing the victim and
stated that [Mr. Bond] was the other person with a gun. Significantly, even
in this first statement [the] Petitioner admitted entering into the store after
discussions regarding a robbery of the store and admitted to obtaining some
of the money out of the cash register. Also of major significance, in the
first statement [the] Petitioner implicated [Mr.] Perry as the leader in the
commission of the offense.

After giving this first statement, [the Petitioner] was shown the video
surveillance tape and still photographs depicting [the Petitioner] as the sole
person on the counter, after which, [the Petitioner] agreed to give a second
statement.

Second statement: [The Petitioner’s] second statement begins with
his acknowledgment that his first statement was not completely truthful.
[The Petitioner] again indicated that he entered the store to make a purchase
after he was told that the robbery would be an[] in and out situation; and
that when he approached the counter [Mr.] Perry put the shotgun on the
clerk, after which, [the Petitioner] jumped over the counter, grabbed the
store’s gun, opened the cash register and took the money out of the register.
He then stated that he slipped, hit his head and the gun fired. He then ran
out of the store. About $200 was obtained, which was split four ways
between the four men. In this statement, [the Petitioner] admitted that [Mr.
Bond] did not [] enter the store, admitted he was the one who took the
store’s gun, admitted taking the money from the register and admitted being
the person who shot the victim in the head. He merely claimed that it was
an unintentional shooting. Significantly, in this second statement [the]
Petitioner once again implicated [Mr.] Perry as the leader in the
commission of the offense.

. . . [T]he only defense witness at the trial was the [P]etitioner,
Antonio Munford. [The Petitioner] testified on February 15, 2001. He
testified under oath that he was [twenty] years of age at the time of his
testimony.1 . . . He began his testimony by stating that the two prior
statements he gave to the police were a combination of truth and fiction.
He testified that his uncle[,] William Johnson[,] and [Mr. Bond] mentioned
on the night in question that they had just missed an opportunity to commit
a robbery, and that five minutes later they said they were going to take care

1
Based on the Petitioner’s trial testimony, he would have been at least eighteen years old on the
date of the offense.
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of some business. Despite this talk of a robbery, [the Petitioner] testified
that he merely thought they were going to get “high.” [The Petitioner] then
testified that he asked to go with the two men and they rode around in the
car smoking marijuana until they pulled up on a parking lot near the Oil
City. [The Petitioner] then testified that his uncle spotted [Mr.] Perry and
he heard his uncle tell [Mr. Perry] about the incident in which they just
tried to “knock off” the man with a money bag. [The Petitioner] testified
that he then told the three other men that he was going into the store to get
something to eat. As he was entering the store[,] he glanced back and [Mr.]
Johnson and [Mr.] Perry followed him into the store, although he opened
the door for them and they entered the store in front of him. [The
Petitioner] further testified that as he approached the counter [Mr. Perry]
pulled the shotgun on the clerk and told the clerk to get down on the floor.
[Mr.] Perry then told [the Petitioner] to get the money, so he ran and
jumped on the counter. [The Petitioner] then testified that he reached down
and grabbed the store’s gun and started trying to open the register. He
could not get it open until Mr. Ali told him which button to hit. At that
time he was holding the gun and trying to get the money at the same time.
He then heard a voice say “watch out” and heard a “pow” after which he
ran out of the store and passed the gun to [Mr. Perry], but did not have time
to pass him the money from the cash register.

According to [the Petitioner], he briefly split up with the other men,
but rejoined them at his uncle[’s] grandmother’s house[,] [a]fter which they
rode around in the car smoking more marijuana and went to a Krystal. He
testified further that he did not learn that there had been a killing involved
in the robbery until the next day. However, [the Petitioner] testified . . .
that he was the person who fired the shot that killed the victim, but claimed
that there was no discussion regarding a plan to rob the Oil City before
entering and that he actually did not enter with intent to rob the Oil City.
He further admitted that he knew the clerk had a firearm in the store and
that he got the gun before he got the money out of the cash register. He
further explained that the shooting was not intentional and that he was so
intoxicated that he did not even realize that he had fired the .357 revolver as
he didn’t notice any recoil. Finally, he re-emphasized that he did not enter
the store with intent to participate in a robbery, but he also acknowledged
that no one forced him into getting the money out of the cash register.

In essence, [the Petitioner’s] trial testimony was basically consistent
with his version of events in his second statement given to the police,
except at trial he claimed no prior discussions or planning of the robbery
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 took place and he did not enter into the store with the intent to participate in
the robbery. He did acknowledge his participation in the robbery, but, in
essence, testified that it was a spur of the moment reaction to the events that
unfolded without his prior knowledge. Again, at trial, [the] Petitioner
implicated [Mr.] Perry as the leader in the commission of the offense.

Faced with a video depicting the Petitioner participating in the
robbery and the fact that [the] Petitioner had given a typed confession to
participating in the robbery and shooting the victim, [] trial counsel made
an opening statement that emphasized to the jury that [the Petitioner] had
been placed in a situation where he was forced to make a “split-second
decision” as to how to react. In his closing argument, [the] Petitioner’s trial
counsel continued the version of the incident testified to by the Petitioner
and simply contended that [the Petitioner] never entered the Oil City with
intent to participate in a robbery.

Following deliberations, the jury found the Petitioner guilty as charged, and he
was sentenced to life imprisonment. A motion for new trial was filed on July 12, 2001,
which was overruled on August 1, 2001. No notice of appeal was filed by trial counsel.

On September 23, 2003, the Petitioner filed a pro se notice of appeal with this
2
court. He then filed a pro se motion to accept late-filed notice of appeal on October 10,
2003. On October 30, 2003, this court filed an order denying the Petitioner’s motion to
accept his late-filed notice of appeal and denied his request to waive the timely filing
requirement found in Rule 4(a) of the Tennessee Rules of Appellate Procedure. A
mandate was issued by this court on December 1, 2003.

Post-Conviction and Coram Nobis Proceedings

On July 27, 2012, the Petitioner filed a pro se petition for writ of error coram
nobis. Attached to the pro se petition were several newspaper articles from 2004 which
indicated that the Petitioner’s trial counsel had been charged and convicted in federal
court of various offenses relating to his involvement with the Gangster Disciples. The
Petitioner asserted that he did not become aware of this information until June 14, 2012.

Following the appointment of counsel, the Petitioner filed two amended petitions
for writ of error coram nobis. The Petitioner alleged in the amended petitions that he had

2
The record reflects that the Petitioner first filed a notice of appeal in the trial court on September
20, 2003, and was advised by the clerk that he needed to file a motion to waive the timely filing of the
notice of appeal and a motion to appoint counsel in this court.
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been a juvenile at the time he committed the instant offense. The Petitioner also asserted
that his co-defendant, Mario Perry, prepared an affidavit stating that the Petitioner was
not involved in the conspiracy to commit the robbery and did not shoot the victim. He
further alleged that his now-disbarred trial counsel had been a member of the Gangster
Disciples and had pled guilty to “nearly two-dozen counts of criminal activity involving
[h]is activity with the Gangster Disciples . . . .” He argued that trial counsel’s
“involvement in this case did not further the best interests of [the Petitioner], but the best
interests of the Gangster Disciples and its members including [] co-defendants Perry and
Johnson.” The amended petition argued that the statute of limitations should be tolled
because: (1) the claims in the present case arose after the statute of limitations had
already run; (2) the Petitioner was mentally incompetent; and (3) because of trial
counsel’s misconduct.

The Petitioner, through appointed counsel, filed a petition for post-conviction
relief on April 28, 2014. The petition for post-conviction relief raised the identical claims
as raised in the petition for writ of error coram nobis and alleged the same grounds for
due process tolling of the post-conviction statute of limitations. Additionally, the
Petitioner asserted that trial counsel rendered ineffective assistance of counsel based on
the following:

1. Trial counsel did not legally waive the Petitioner’s right to a
transfer hearing in juvenile court.

2. Trial counsel did not challenge the jurisdiction of the criminal
court based on the lack of a transfer hearing.

3. Trial counsel failed to file a motion to suppress the Petitioner’s
statements to police.

4. Trial counsel did not file a motion to suppress the search in which
weapons were discovered.

5. Trial counsel never requested a mental evaluation.

6. Trial counsel failed to raise a mental defect defense.

7. Trial counsel failed to seek funds for an investigator.

8. Trial counsel did not seek funds for an expert on eyewitness
identification.

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 9. Trial counsel stated in opening statement that Mr. Perry would be
a witness at trial.

10. Trial counsel failed to adequately prepare the Petitioner to
testify.

11. Trial counsel advised the Petitioner to take responsibility for the
actions of Mr. Perry and Mr. Johnson.

12. Trial counsel elicited testimony at trial about the statements of
Mr. Perry and Mr. Johnson.

13. Trial counsel objected to the admission of the Petitioner’s self-
serving statement, in which he denied culpability.

14. Trial counsel failed to cross-examine police officers as to the
misidentification of the Petitioner at the preliminary hearing.

15. Trial counsel abandoned the Petitioner after the motion for new
trial was denied and failed to file a notice of appeal.

16. Trial counsel’s performance in negotiations with the State was
deficient as Mr. Perry and Mr. Johnson received lesser sentences for their
involvement in the crime.

On November 10, 2015, the State filed a response to the petition for writ of error
coram nobis. A hearing on both the petition for post-conviction relief and the petition for
writ of error coram nobis was conducted over three days.

Mario Perry testified that he was currently incarcerated at the Hardeman County
Correctional Facility (HCCF). He explained that he was originally charged with first
degree felony murder along with the Petitioner, but he pleaded guilty to second degree
murder and received a sentence of twenty-two years. Mr. Perry testified that his sentence
was set to expire in June 2018. He recalled that each of the Petitioner’s co-defendants
received a lighter sentence than the Petitioner because they took plea deals.3 Mr. Perry
recalled that he and the Petitioner were both housed at HCCF following their convictions,
but he and the Petitioner were not around one another and did not have any interactions
for the first ten years of their confinement. Mr. Perry explained that, in the summer of

3
According to Mr. Perry, co-defendant William Johnson entered a guilty plea in exchange for a
fifteen-year sentence.
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2012, the Petitioner got out of “solitary,” and the Petitioner “ended up in the pod with
[Mr. Perry].” At that time, he spoke to the Petitioner and presented the Petitioner with a
newspaper clipping about the Petitioner’s trial counsel. According to Mr. Perry, he knew
trial counsel “through [a] mutual party . . . by [Mr. Perry] being a member of the
Gangster Disciples . . . .” Mr. Perry explained that he was the “governor” of South
Memphis for the Gangster Disciples and that a man named Jeff Holiday was the
“overseer” for the entire state. Mr. Perry first met trial counsel at an “authority meeting,”
which he explained was a city-wide meeting of Gangster Disciples that every member of
the gang was required to attend. He testified that individuals who were not gang
members were not allowed in the meeting and that trial counsel’s attendance indicated to
him that trial counsel was a member of the Gangster Disciples. Mr. Perry said that co-
defendants William Johnson and David Bond were also members of the gang but that the
Petitioner was not and had no relationship to the organization.

During his testimony, the following colloquy took place regarding Mr. Perry’s
ability to communicate with gang members during his pretrial incarceration:

Q. What communications did you have from your organization
regarding [trial counsel’s] role in this trial as [the Petitioner’s] attorney?

A. Really pretty much when I talked to my godbrother Shamar, I
ma[d]e sure that he ha[d] [Mr. Holiday] relay a message to [trial counsel] to
make sure that [the Petitioner] was still going to take the charge and all
that.

Q. Okay. So you were communicating to the organization to make
sure that [the Petitioner] was the person who went down and took the brunt
of the punishment in this case?

A. Right.

Q. And what reason was that?

A. Because I was basically trying to get off the case all together.
But I couldn’t get off because they had my fingerprint. So I was basically
stuck. But I was trying to make sure I didn’t get the murder charge, the
actual charge as the shooter.

Q. Okay. So you were trying to make sure that you weren’t charged
as the actual shooter. When you say they had your fingerprints, is that in
the store or on a weapon or what do you mean by that?
-8-
 A. Well, in the store.

Q. Okay. Were you attempting to influence the outcome by having
. . . a person who was not a Gangster Disciple be the person who ends up
being held responsible for the charge?

A. Right. Because it was more like better him than us. . . . So who
better to put it on than the odd man out?

Q. And, again, his lawyer was a member of the organization?

A. Right.

Q. Is there any doubt in your mind whether he got that message?

A. Well, I know he got the message.

Q. Okay. Can you say how you know he got the message?

A. Like I said, my godbrother, whatever I communicate[d] to him,
he relay[ed] it to [Mr. Holiday]. It’s going to come right back the same
way.

According to Mr. Perry, a police sergeant allowed him to speak to the Petitioner in
a holding cell following the Petitioner’s arrest. He told the Petitioner “to take the charge”
and made sure that the Petitioner understood “what would happen” if “he didn’t take the
case[.]” Mr. Perry explained that he was trying to “save himself” by blaming the
Petitioner. He threatened the Petitioner, and the Petitioner went to protective custody at
the jail. Mr. Perry did not testify at the Petitioner’s trial.

On cross-examination, Mr. Perry stated that the Petitioner did not have anything to
do with the robbery, that the Petitioner was in the car at the time of the offense, and that
the Petitioner did not know about plans to rob the store. He testified that he, William
Johnson, and David Bond went into the store. He claimed that the Petitioner came into
the store during the robbery, “but he turned around.”

Laura Maceli testified that she worked at the Memphis Central Library. Ms.
Maceli identified a newspaper article from the Commerical Appeal from 2004. She
explained that she sent the document to the Petitioner after he requested the newspaper
article in June 2012.
-9-
 Dr. Frederick Steinberg, an expert in clinical and forensic psychology, testified on
the Petitioner’s behalf. He explained that he had a “working knowledge” of psychotropic
drugs and how those drugs affect patients. Dr. Steinberg stated that he had never
personally met with or assessed the Petitioner; however, Dr. Steinberg reviewed the
Petitioner’s mental health records from HCCF and explained that the Petitioner had been
diagnosed as having psychotic disorder, not otherwise specified, and major depressive
disorder, not otherwise specified. When asked if someone who suffers from psychosis
would be able to manage their legal affairs, Dr. Steinberg replied:

That’s hard to say. I haven’t assessed that. A psychiatric diagnosis
doesn’t necessarily translate to a legal status. However, what I can say is
that . . . a person that has this kind of diagnosis has difficulties with reality
testing, has difficulties with perceptual problems. What I mean by that is
the potential of hallucinations, delusions and very potentially, problems
with mood. In other words, they’re not seeing the world like normal people
would see the world. That’s what a psychosis is.

Dr. Steinberg had not been provided a list of the Petitioner’s current medications
but testified that patients with psychosis were usually prescribed “medication consistent
with psychotic symptoms.” He stated that taking prescribed psychotropic medication
would improve an individual’s ability to manage their legal affairs. Dr. Steinberg stated
that the Petitioner should be assessed to determine whether he was capable of managing
his legal affairs but that he had not performed such an assessment.

Trial counsel testified that he was appointed to represent the Petitioner while the
case was still in general sessions court. During his representation, trial counsel became
aware that the Petitioner was a juvenile at the time of the offense, and he argued that the
general sessions court did not have jurisdiction over the Petitioner based on his age. He
explained that there was a discrepancy between the Petitioner’s birth certificate and his
age on the charging instrument. The birth certificate showed a birth date of June 18,
1982, but the arrest ticket indicated that the Petitioner was born in 1980. Trial counsel
made an oral motion to have the case sent to juvenile court. However, the general
sessions court judge found that it was a “typographical error” and proceeded hearing the
Petitioner’s case. Trial counsel agreed that he did not file a written motion in criminal
court to challenge its jurisdiction over the Petitioner. Trial counsel stated that he had
practiced in juvenile court and was familiar with transfer hearings. He stated that, as a
seventeen-year-old charged with first degree murder, it was “[v]ery likely [the Petitioner]
would have been transferred[,]” if a transfer hearing had been held.

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 Trial counsel testified that he and co-defendant Mario Perry “had some mutual
friends[.]” Trial counsel acknowledged that he was no longer licensed to practice law,
effective February 2004. Trial counsel was indicted in federal court for obstruction of a
criminal investigation, tampering with a witness, and bribery in a matter unrelated to the
Petitioner’s case. Ultimately, trial counsel pled guilty to several counts relating to
“improper interference with the Criminal Justice process[,]” based on his “altering a
serial number” and his attempt to bribe a Memphis Police Department officer.

Trial counsel identified a letter he sent to the Petitioner dated March 14, 2002,
which informed the Petitioner that, if he was going to be appointed appellate counsel,
“[I]t may not be me.” Trial counsel testified that he was not appellate counsel at that
time. However, he acknowledged that he was appointed as trial counsel and stated that
he could not recall ever being relieved of his appointment. Trial counsel also identified a
letter received by his office from the Petitioner dated September 18, 2003, but he could
not recall if he had ever seen the letter. Trial counsel agreed that he did not request a
mental evaluation for the Petitioner and that no motion to suppress was filed in his case.

Trial counsel testified that the Petitioner was the first of the defendants to go to
trial. Trial counsel recalled that the Petitioner confessed to police; the crime was
recorded on videotape; and the Petitioner watched the video and identified himself in the
video. However, the Petitioner told trial counsel that his confession was coerced. Trial
counsel stated that the Petitioner had been identified in a photographic lineup by one of
the victims, but the victim was unable to identify the Petitioner at the preliminary
hearing. Trial counsel explained that Mr. Perry was set to testify against the Petitioner by
the time of trial, but he could not recall why he stated in opening statement that Mr. Perry
would testify. He also could not recall whether he prepared the Petitioner to testify. He
denied telling the Petitioner to take responsibility for the shooting. He stated:

. . . I can tell you this for the record, very clearly, if [the Petitioner]
had ever told me that he was responsible for a killing, or a shooting, I
would have pled him guilty. The only reason I would have gone to trial is
if a person told me they were innocent of the crime, or there were
extenuating facts that led to his being less culpable.

Trial counsel acknowledged that he did not file a notice of appeal following the
denial of the Petitioner’s motion for new trial. He explained that it was “[n]ot [his]
responsibility” and that he “didn’t do [a]ppellate work.” Additionally, trial counsel
agreed that he did not obtain a waiver of direct appeal from the Petitioner. The following
exchange then took place:

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 Q. Well, did you explain his right to appeal to him before you
concluded your trial, or responsibilities?

A. In the last letter, the letter dated March 14, 2002, [it said that] if
he requested [c]ounsel to appeal this conviction the [a]ppellate [c]ounsel
would be able to receive that transcript from the court reporter. So
normally [this] would be m[e] saying, if you want to appeal the case the
[c]ourt will appoint you an Appeals lawyer and follow that process, I don’t
do that. That is sort of my canned answers.

Q. That was the explanation that [the Petitioner] got?

A. That is what most of my client[s] would have gotten.

Q. And that was seven months after the motion for new trial?

A. That would have been normal.

Trial counsel stated that he told the Petitioner shortly after his conviction that he
“did not do appeal work.” He stated he told the Petitioner about his appellate rights
“immediately after trial, so he’d have time to think about them and prepare what he
wanted to do next.” Trial counsel asserted that his representation of the Petitioner ended
in August 2001, after the motion for new trial hearing. He recalled that, at that hearing,
he was not appointed to appeal the Petitioner’s case. Trial counsel denied ever
conspiring with the Petitioner’s co-defendants to “frame” the Petitioner for the crime.

The Petitioner testified that, following his conviction, trial counsel did not inform
him that trial counsel would not handle the appeal or that the Petitioner needed a different
attorney for his appeal. Instead, the Petitioner asserted that trial counsel told him that he
was “going to do [the Petitioner’s] appeal.” The Petitioner recalled that he wrote a letter
to the appellate court clerk on January 4, 2002, inquiring about his appeal, and he was
informed by the court clerk that he had no appeal pending. The Petitioner then wrote a
letter to trial counsel inquiring about the appeal, and trial counsel responded in a letter on
March 14, 2002, telling the Petitioner to “be patient” and that he was “diligently working
on [the Petitioner’s] behalf[.]” The Petitioner explained that he was housed at HCCF,
which had a prison library where inmates worked as legal aides. An inmate named T.T.
Robertson helped the Petitioner prepare various legal documents relating to his case. Mr.
Robertson helped him prepare his initial notice of appeal, which he filed on September
23, 2003. After the criminal court clerk indicated that the Petitioner’s notice of appeal
was late, Mr. Robertson assisted the Petitioner in filing a motion to accept a late-filed
notice of appeal, which was filed with this court on October 10, 2003. On October 30,
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2003, this court then entered an order denying his request. Mr. Robertson also helped
write the Petitioner’s pro se petition for writ of error coram nobis.

The Petitioner testified that he was taking Risperdal and a generic version of
Seroquel while housed at HCCF in 2002 and 2003; he stated that these drugs were
prescribed by mental health professionals in the prison. The Petitioner explained that he
spent about three days a week in mental health solitary confinement for the first decade
of his incarceration due to his “trying to kill [himself].” He stated that, while in mental
health isolation, he did not have access to newspapers, radios, or televisions. He agreed,
however, that he was not in isolation for the entire time he was incarcerated. The
Petitioner recalled that he saw Mr. Perry in prison in 2012, after the Petitioner got out of
mental health confinement. Mr. Perry showed the Petitioner “a piece of paper” and told
him that Mr. Perry and trial counsel were “best friends” and “in the same gang.” Mr.
Perry advised the Petitioner to look for proof that Mr. Perry and trial counsel were in the
same gang. Mr. Perry also expressed regret that he pressured the Petitioner into giving
statements to police that implicated the Petitioner. After speaking to Mr. Perry, the
Petitioner, with Mr. Robertson’s assistance, wrote to the Memphis Central Library and
asked for a copy of the newspaper article from the Commercial Appeal. The library did
not respond to the letter, so the Petitioner had someone go to the library and pay for the
article. The library then mailed the Petitioner a copy.

The Petitioner recalled that, when initially questioned by police, he did not give a
statement. Sometime after the Petitioner’s initial questioning, one of his co-defendants
gave a written statement naming the Petitioner as the shooter. Investigators then brought
the Petitioner back to the police department. At that time, officers allowed Mr. Perry and
Mr. Johnson to talk to the Petitioner, and they told him to take responsibility for the
shooting. According to the Petitioner, the detective “stepped out of the room to let [the
Petitioner] talk with them[,]” at which time they told the Petitioner “what to say.” Mr.
Perry told the Petitioner that he did not want to go back to jail and that “if [the Petitioner]
didn’t take the charge [the Petitioner knew] what was going to happen on the floors . . .
because of the authority [Mr. Perry] had and the leadership he had in his gang.” The
Petitioner explained that Mr. Perry threatened his family members as well.

The Petitioner was then interviewed by investigators and stated:

I was in the car with those guys, didn’t know exactly what was going
to happen. I did go in the store after they went in. Yeah, some craziness
happened and one of those guys shot. I grabbed some money out of the
cash register and I ran out.

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However, after investigators confronted the Petitioner with inconsistencies in his story,
the Petitioner told investigators, “All right. I was the guy in the orange hat. I was the
guy with the gun. I was the guy that jumped up on the counter. . . . And then the noise
happened and the gun accidentally went off.”

The Petitioner told trial counsel about Mr. Perry’s threats, but trial counsel told the
Petitioner to “stick to [the] story, because [the Petitioner] shouldn’t be here no [sic] way,
because [he] was a juvenile.” When asked if trial counsel ever told the Petitioner that he
was a member of the Gangster Disciples, the Petitioner responded, “He said he had
friends, a lot of friends and associates that [were] a part of this gang, that he knows a lot
of the head people.” The Petitioner denied that he was a member of the Gangster
Disciples. The Petitioner said that trial counsel did not discuss trial testimony or strategy
with him other than to tell the Petitioner to “stick to [his] story[.]” He agreed, however,
that trial counsel’s defense was to “try to get [the Petitioner] off on a technicality” based
on the Petitioner’s age at the time of the offense.

The Petitioner testified that he gave trial counsel his date of birth and told trial
counsel that he was seventeen at the time of the offense. He did not recall trial counsel’s
argument to the general sessions court regarding his status as a juvenile. He agreed that,
prior to the instant offense, he had been to juvenile court for disorderly conduct,
shoplifting, assault, possession of marijuana, unauthorized use of a motor vehicle, and for
running away. The Petitioner was eventually placed in the custody of the Department of
Children’s Services but ran away from the group home where he was placed when he was
seventeen. The Petitioner denied telling investigators that he was an adult. However, the
Petitioner admitted that he had previously lied to police officers about his age. He also
acknowledged that his written confession, which he signed, listed his date of birth as June
18, 1981.

On cross-examination, the Petitioner agreed that he was “in and out” of solitary
confinement and was otherwise housed in the mental health pod where he had more
freedom and access to the prison’s library. The Petitioner agreed that investigators
showed him a video of the robbery, and he identified himself on the video as being the
person in “the orange baseball type cap[.]” The Petitioner also acknowledged that his
date of birth was listed as June 18, 1980, on the affidavit of indigency he filled out in
criminal court. The Petitioner agreed that he lied on the affidavit of indigency and stated
that he listed his date of birth as 1980 because “that’s what all my other paperwork said.”
The Petitioner asserted that he was eighteen at the time of trial in February 2001. He
stated that he never spoke to trial counsel about his mental health issues.

At the conclusion of the hearing, the trial court took the matter under advisement
and then filed a written order denying both post-conviction and coram nobis relief on
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December 9, 2016. In denying post-conviction relief, the trial court concluded that the
Petitioner’s claims of ineffective assistance of counsel were barred by the one-year
statute of limitations applicable to petitions for post-conviction relief. The trial court
further determined that the petition did not allege any of the statutory grounds for tolling
the statute of limitations under Tennessee Code Annotated section 40-30-102(b) and that
the Petitioner failed to establish the need for due process tolling. The trial court found
that none of the Petitioner’s claims arose after the statute of limitations period expired.
Moreover, the court found that the Petitioner had failed to establish a prima facie case of
legal incompetency by clear and convincing evidence. The trial court found that “[a]t
best, the Petitioner established that [he] had been diagnosed as suffering from a psychotic
disorder and mental depression in the years 2012-2013 and that he had been prescribed
various medications while in prison in 2001-2003.” The trial court found that there was
“no proof” that his mental condition “rose to the level and standard required to toll the
statute of limitations.” Moreover, the trial court noted:

[D]uring 2002-2003, when [the] Petitioner was taking medication,
he had sufficient mental capacity on January 4, 2002, to write the appellate
court clerk inquiring about the status of his appeal [], on September 19,
2003, to write [trial counsel] a letter inquiring about the status of his appeal
[], on September 20, 2003, to prepare and mail a pro se Notice of Appeal [],
to receive from the clerk a letter advising of the need to file a Motion to
Accept Late Notice of Appeal [] and then prepare and file such a motion. []
It appears that the medication during that period of time did not keep him
from addressing his legal concerns.

Also of significance, is . . . the fact that[,] despite his diagnosis of
psychotic disorder and depression in 2012-2013, he had sufficient mental
capacity during that period of time to receive information about his case in
June of 2012 and file a pro se Petition for Writ of Error Coram Nobis on
July 27, 2012. It appears that his mental condition did not keep him from
addressing his legal concerns at that time.

Additionally, there is no evidence in the record about the period of
time between 2003 and 2012, other than the Petitioner’s testimony that he
was in and out of mental health isolation. Further, no evidence was
presented as to [the] Petitioner’s present mental condition and no genuine
issue arose in the course of the proceeding a[s] to [the] Petitioner’s present
competency.

The trial court noted that the Petitioner’s testimony showed “an amazing sense of clarity
and understanding.”
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 The trial court further noted that “the law says that if [trial counsel is] appointed
for purposes of the trial, you’re automatically appointed for purposes of the appeal” but
that trial counsel’s conduct did not prevent the Petitioner from raising the claims of
ineffective assistance of counsel at an earlier time. The trial court found that the
Petitioner failed to diligently pursue post-conviction relief after discovering a violation of
his constitutional rights, noting that the Petitioner knew that trial counsel had abandoned
his appeal on October 30, 2003, but that he did not file a petition for post-conviction
relief to request a delayed direct appeal until April 2014. Accordingly, the trial court
determined that the Petitioner’s post-conviction claims were barred by the statute of
limitations.

Regarding the petition for writ of error coram nobis, the trial court found that the
Petitioner was not entitled to relief based on Mr. Perry’s testimony because the testimony
was not credible. The trial court noted that Mr. Perry was “a convicted felon and a high-
ranking member of a gang,” that Mr. Perry admitted that he had previously committed
perjury concerning the events of the robbery and murder, and that Mr. Perry’s testimony
at the evidentiary hearing regarding the Petitioner’s participation in the crime was
inconsistent. Moreover, the trial court found that Mr. Perry gave a pretrial written
statement to investigators, detailing the Petitioner’s involvement in the crime, which was
corroborated by the Petitioner’s own statements to investigators. Additionally, the trial
court noted:

. . . [The Petitioner] testified that he confessed because he was threatened
by [Mr.] Perry who advised him to both confess and exonerate [Mr.] Perry.
This testimony has a major flaw because all of [the Petitioner’s] statements
also implicated Mr. Perry as a ringleader in the crime who pulled the
shotgun on the store clerk [and] initiated the robbery.

The trial court also determined that the Petitioner failed to present credible evidence that
trial counsel had a conflict of interest in the case or conspired to convict the Petitioner of
the crime and found that the fact that trial counsel was convicted of several crimes in
federal court three or four years after the Petitioner’s trial was not a fact that existed at
the time of the Petitioner’s trial, nor would it have been admissible as evidence at the
Petitioner’s trial. Accordingly, the trial court denied coram nobis relief. This timely
appeal follows.

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 II. Analysis

A. Timeliness of post-conviction petition

On appeal, the Petitioner contends that the trial court erred by denying his petition
for post-conviction relief as untimely. He asserts that he was entitled to due process
tolling of the statute of limitations. The State responds that the trial court properly
determined that the post-conviction petition was time-barred.

A petition for post-conviction relief must be filed “within one (1) year of the date
of the final action of the highest state appellate court to which an appeal is taken or, if no
appeal is taken, within one (1) year of the date on which the judgment became final, or
consideration of the petition shall be barred.” Tenn. Code Ann. § 40-30-102(a). “In
Tennessee, a trial court’s judgment becomes final thirty days after entry, unless a
specified post-trial motion is filed, in which case the judgment becomes final upon ‘entry
of the order denying a new trial or granting or denying any other such motion or
petition.’” State v. Brown, 479 S.W.3d 200, 205-06 (Tenn. 2015) (quoting Tenn. R. App.
P. 4(c)). Because no appeal was filed in this case, the Petitioner’s judgment of conviction
became final on August 1, 2001, when the trial court overruled the Petitioner’s motion for
new trial. See id. Therefore, the Petitioner had until August 1, 2002, to file his petition
for post-conviction relief. The instant petition was filed in April 2014, over eleven years
beyond the statute of limitations.

Subsection 40-30-102(b) provides that “[n]o court shall have jurisdiction to
consider a petition filed after the expiration of the limitations period unless” one of these
three narrow circumstances apply:

(1) The claim in the petition is based upon a final ruling of an
appellate court establishing a constitutional right that was not recognized as
existing at the time of trial, if retrospective application of that right is
required. The petition must be filed within one (1) year of the ruling of the
highest state appellate court or the United States supreme court establishing
a constitutional right that was not recognized as existing at the time of trial;

(2) The claim in the petition is based upon new scientific evidence
establishing that the petitioner is actually innocent of the offense or
offenses for which the petitioner was convicted; or

(3) The claim asserted in the petition seeks relief from a sentence
that was enhanced because of a previous conviction and the conviction in
the case in which the claim is asserted was not a guilty plea with an agreed
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 sentence, and the previous conviction has subsequently been held to be
invalid, in which case the petition must be filed within one (1) year of the
finality of the ruling holding the previous conviction to be invalid.

Tenn. Code Ann. § 40-30-102(b).

Additionally, Tennessee courts “have previously recognized that in certain
circumstances, strict application of the statute of limitations would deny a defendant a
reasonable opportunity to bring a post-conviction claim and thus, would violate due
process.” Williams v. State, 44 S.W.3d 464, 468 (Tenn. 2001). Our supreme court has
previously identified three scenarios in which due process requires tolling the post-
conviction statute of limitations: (1) when the basis for the petition arose after the
expiration of the statute of limitations; (2) when the petitioner’s mental incompetence
prevented the petition from being timely filed; and (3) when a petitioner was actively
misled by an attorney’s misconduct. Bush v. State, 428 S.W.3d 1, 23 (Tenn. 2014).
Elaborating on the third exception, our supreme court concluded that a petition for post-
conviction relief is entitled to due process tolling of the statute of limitations based upon
the conduct of a petitioner’s attorney when (1) the petitioner had been diligently pursuing
his or her rights and (2) extraordinary circumstances prevented the timely filing of the
petition. Whitehead v. State, 402 S.W.3d 615, 631 (Tenn. 2013) (citing Holland v.
Florida, 560 U.S. 631, 649 (2010)). In explaining the first prong of the analysis, our
supreme court stated that “pursuing one’s rights diligently ‘does not require a prisoner to
undertake repeated exercises in futility or to exhaust every imaginable option, but rather
to make reasonable efforts [to pursue his or her claim].’” Bush, 428 S.W.3d at 22
(quoting Whitehead, 402 S.W.3d at 631). “Moreover, the due diligence inquiry is an
individualized one that must take into account the conditions of confinement and the
reality of the prison system.” Whitehead, 402 S.W.3d at 631 (quoting Downs v. McNeil,
520 F.3d 1311, 1323 (11th Cir. 2008)) (internal quotation marks omitted). The second
prong of the due process tolling analysis “is met when the [petitioner’s] attorney of
record abandons the [petitioner] or acts in a way directly adverse to the [petitioner’s]
interests, such as by actively lying or otherwise misleading the [petitioner] to believe
things about his or her case that are not true.” Id. Additionally, due process tolling
“‘must be reserved for those rare instances where—due to circumstances external to the
party’s own conduct—it would be unconscionable to enforce the limitation period against
the party and gross injustice would result.’” Id. at 631-32 (quoting Harris v. Hutchinson,
209 F.3d 325, 330 (4th Cir. 2000)).

The question of whether the one-year statute of limitations for filing a petition for
post-conviction relief should be tolled under the Post-Conviction Procedure Act is a
mixed question of law and fact that is subject to de novo review. Bush, 428 S.W.3d at
16. The post-conviction court’s findings of fact, however, are binding on this court
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unless the evidence preponderates against them. Whitehead, 402 S.W.3d at 621 (citing
Smith v. State, 357 S.W.3d 322, 336 (Tenn. 2011); Dellinger v. State, 279 S.W.3d 282,
294 (Tenn. 2009)). This court must defer to the post-conviction court’s findings with
respect to a witness’s credibility and the weight of the evidence. Id. (citing Momon v.
State, 18 S.W.3d 152, 156 (Tenn. 1999)).

1. Statutory tolling

Although not entirely clear, it appears from his brief that the Petitioner asserts he
is entitled to statutory tolling under Tennessee Code Annotated section 40-30-102(b)(1).
The Petitioner argues that he “fits into the narrow group of prisoners granted new rights
by the Whitehead opinion” and that he had one year from the date of the filing of the
opinion in Whitehead to file a petition for post-conviction relief. However, Whitehead
did not create a new constitutional right not recognized as existing at the time of the
Petitioner’s trial. See Tenn. Code Ann. § 40-30-102(b)(1). Rather, the court in
Whitehead merely “clarified Tennessee’s due process tolling standard[.]” Bush, 428
S.W.3d at 22. We further conclude that, even if Whitehead had created a new
constitutional right, the Petitioner would not be entitled to statutory tolling because he did
not file his post-conviction petition until April 28, 2014, over a year after Whitehead was
decided on March 21, 2013. The Petitioner cannot rely on this statutory tolling provision
to save his untimely filed post-conviction petition.

2. Due process tolling

The Petitioner also asserts that he is entitled to due process tolling because
extraordinary circumstances prevented the timely filing of his petition. Specifically, the
Petitioner contends that: (1) his claims of ineffective assistance of counsel arose after the
expiration of the statute of limitations when he learned of the reasons behind trial
counsel’s ineffectiveness, i.e., that trial counsel was in a conspiracy to undermine his
rights on appeal; (2) he was prevented from filing his petition in a timely manner because
of mental incompetency; and (3) trial counsel abandoned the Petitioner on direct appeal
and actively deceived the Petitioner regarding his representation. We will address each
claim in turn.

a. Later-arising claims

In certain circumstances, due process prohibits the strict application of the post-
conviction statute of limitations to bar a petitioner’s claim when the grounds for relief,
whether legal or factual, arise after the point at which the limitations period would
normally have begun to run. Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995). In
applying this rule to specific factual situations, courts should use a three-step analysis:
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 (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. In making the final determination, courts must balance the petitioner’s interest in
“collaterally attack[ing] constitutional violations occurring during the conviction process”
with the State’s interest of “preventing the litigation of stale and fraudulent claims.”
Burford v. State, 845 S.W.2d 204, 207-08 (Tenn. 1992)).

As previously explained, the limitations period would normally have begun to run
on August 1, 2001, upon the order of the trial court denying the Petitioner’s motion for
new trial because no appeal was filed in this case. Although most of the Petitioner’s
grounds of ineffective assistance of counsel arose during trial and, thus, before the post-
conviction limitations period commenced, at least one ground for relief arose after
August 1, 2001—the Petitioner’s claim that trial counsel abandoned him after the motion
for new trial was denied and failed to file a notice of appeal. However, we conclude that
a strict application of the limitations period would not effectively deny the Petitioner a
reasonable opportunity to present this later-arising claim. The trial court found that the
Petitioner knew by October 30, 2003, that trial counsel had abandoned his appeal, but the
Petitioner did not file a petition for post-conviction relief requesting a delayed direct
appeal until April 2014. The Petitioner failed to diligently pursue post-conviction relief
for over ten years after discovering a violation of his constitutional rights.

The Petitioner asserts that he should be excused for this failure because he did not
learn the reason behind trial counsel’s ineffectiveness, i.e., that trial counsel conspired
with his co-defendants to frame the Petitioner, until he spoke to Mr. Perry in 2012 and
obtained newspaper articles confirming trial counsel’s convictions in federal court. We
note, however, that the Petitioner failed to offer credible evidence to support his claim of
a conspiracy between trial counsel and the Petitioner’s co-defendants at the post-
conviction hearing. Additionally, the Petitioner does not explain why it was necessary to
know the information provided by Mr. Perry prior to filing a petition for post-conviction
relief. As noted by the State in its brief, “Petitioners commonly file post-conviction
petitions based upon failures of counsel at trial without knowing the reasoning behind
counsel’s actions[,]” and if the Petitioner was abandoned by trial counsel on appeal as
alleged, then the Petitioner would have been entitled to a presumption of prejudice and a
delayed direct appeal, regardless of the reasons behind trial counsel’s abandonment. See
Wallace v. State, 121 S.W.3d 652, 658-60 (Tenn. 2003). Thus, the Petitioner should have
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pursued post-conviction relief when he learned that trial counsel failed to file an appeal in
2003.

The Petitioner also argues that he was unable to pursue post-conviction remedies
earlier because he was in mental health isolation in prison. However, the Petitioner
admitted that he was often only in solitary confinement for a few days at a time and that
he was otherwise housed in the mental health pod where he had more freedom and access
to the prison’s law library and legal aides. The record indicates that the conditions of his
confinement did not prevent the Petitioner from discussing his case with Mr. Robertson, a
legal aide at the prison, and requesting information on the status of his direct appeal in
2002 and in 2003, filing of a notice of appeal and motion to accept the late-filed notice in
2003, sending a letter to the Memphis Central Library requesting newspaper articles in
2012, and filing his pro se petition for writ of error coram nobis relief in 2012. The delay
of more than ten years between the Petitioner’s learning of trial counsel’s abandonment
on appeal and his filing of a petition for post-conviction relief demonstrates a lack of
diligence on the part of the Petitioner. Due process tolling is not appropriate for this
later-arising claim.

b. Mental incompetency

The Petitioner also contends that he is entitled to due process tolling due to his
mental incompetency. Our supreme court has addressed the showing required to make
out a prima facie case of mental incompetency for due process tolling of the statute of
limitations:

In the interest of uniformity and simplicity, we have determined that
the standards and procedures in Tenn. Sup. Ct. R. 28, § 11 should
henceforth be used in all post-conviction proceedings . . . in which the issue
of the petitioner’s competency is properly raised. Thus, Tenn. Sup. Ct. R.
28, § 11 will apply not only when a petitioner seeks to withdraw a
previously-filed petition for post-conviction relief, but also when a
petitioner seeks to toll the statute of limitations in Tenn. Code Ann. § 40-
30-102(a) due to incompetency . . . .

In light of the importance our society ascribes to personal autonomy,
the inquiry should begin with a presumption that the petitioner or prisoner
is competent. . . . [The petitioner] must make a prima facie showing that
[the petitioner] is incompetent by submitting affidavits, depositions,
medical reports, or other credible evidence that contain specific factual
allegations showing the petitioner’s incompetence.

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 ....

The competency standard applicable to these proceedings is whether
the prisoner possesses “the present capacity to appreciate [his or her]
position and make a rational choice with respect to continuing or
abandoning further litigation or on the other hand whether the petitioner is
suffering from a mental disease, disorder, or defect which may substantially
affect the petitioner’s capacity.” Tenn. Sup. Ct. R. 28, § 11(B)(1). The
question is not whether the prisoner is able to care for himself or herself,
but whether the prisoner is able to make rational decisions concerning the
management of his or her post-conviction appeals.

Reid ex rel. Martiniano v. State, 396 S.W.3d 478, 512-13 (Tenn. 2013) (footnotes,
internal quotations, and citations omitted); see also Heath v. State, No. W2016-00786-
CCA-R3-PC, 2017 WL 3895230, at *2 (Tenn. Crim. App. Sept. 5, 2017) (applying the
test from Reid ex rel. Martiniano to determine that the petitioner failed to establish the
need for due process tolling of the post-conviction statute of limitations based on his
alleged mental incompetence), perm. app. filed. If a prima facie showing is made, the
post-conviction court should then “schedule a hearing to determine whether the
[petitioner] is competent to manage his [or her] petition.” Id. at 512. The burden is on
the petitioner to prove “that he or she is mentally incompetent by clear and convincing
evidence.” Id. at 494 (citing Tenn. Code Ann. § 40-30-110(f)).

In this case, the trial court found that the Petitioner failed to make out a prima
facie case of mental incompetency. The trial court found that “[a]t best, the Petitioner
established that [he] had been diagnosed as suffering from a psychotic disorder and
mental depression in the years 2012-2013 and that he had been prescribed various
medications while in prison in 2001-2003.” The trial court stated that there was “no
proof” that that his mental condition “rose to the level and standard required to toll the
statute of limitations.” Moreover, the trial court noted:

[D]uring 2002-2003, when [the] Petitioner was taking medication, he had
sufficient mental capacity on January 4, 2002, to write the appellate court
clerk inquiring about the status of his appeal [], on September 19, 2003, to
write [trial counsel] a letter inquiring about the status of his appeal [], on
September 20, 2003, to prepare and mail a pro se Notice of Appeal [], to
receive from the clerk a letter advising of the need to file a Motion to
Accept Late Notice of Appeal [] and then prepare and file such a motion. []
It appears that the medication during that period of time did not keep him
from addressing his legal concerns.

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 Also of significance, is [] the fact that despite his diagnosis of psychotic
disorder and depression in 2012-2013, he had sufficient mental capacity
during that period of time to receive information about his case in June of
2012 and file a pro se Petition for Writ of Error Coram Nobis on July 27,
2012. It appears that his mental condition did not keep him from
addressing his legal concerns at that time.

Additionally, there is no evidence in the record about the period of time
between 2003 and 2012, other than the Petitioner’s testimony that he was in
and out of mental health isolation. Further, no evidence was presented as to
[the] Petitioner’s present mental condition and no genuine issue arose in the
course of the proceeding a[s] to [the] Petitioner’s present competency.

Upon review, we agree with the trial court’s conclusions. Although the Petitioner
presented testimony from Dr. Steinberg that he had been diagnosed as having psychotic
disorder, not otherwise specified, and major depressive disorder, not otherwise specified,
Dr. Steinberg acknowledged that he had never personally met with or assessed the
Petitioner. When asked if someone who suffers from psychosis would be able to manage
their legal affairs, Dr. Steinberg replied, “That’s hard to say. I haven’t assessed that. A
psychiatric diagnosis doesn’t necessarily translate to a legal status.” However, Dr.
Steinberg stated that taking prescribed psychotropic medication would improve an
individual’s ability to manage their legal affairs, and the Petitioner testified that he took
Risperdal and a generic version of Seroquel while housed at HCCF in 2002-2003, which
had been prescribed by mental health professionals in the prison. Additionally, the
record shows that, while the Petitioner was taking his medication, he had sufficient
mental capacity to write letters inquiring about the status of his appeal. The Petitioner
failed to establish by clear and convincing evidence that the statute of limitations should
be tolled due to his alleged mental incompetence.

c. Trial counsel’s abandonment and deception

In Whitehead, the petitioner’s appellate counsel miscalculated the deadline for
filing for post-conviction relief and did not send the petitioner’s case file to him until the
correct deadline had passed. Whitehead, 402 S.W.3d at 621. In its application of the
two-prong test to the petitioner’s case, the supreme court determined that the petitioner
had pursued his rights diligently; the petitioner began researching post-conviction case
law when he received the letter from his appellate counsel with the incorrect filing date
and drafted a thirty-two-page petition, which he submitted by the incorrect deadline. Id.
at 632. The supreme court also concluded that the petitioner “faced an extraordinary
combination of circumstances that prevented him from filing his post-conviction petition
on time-circumstances that were tantamount to attorney abandonment.” Id. Therefore,
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the Tennessee Supreme Court held that “the principles of due process and fundamental
fairness require that the statute of limitations” in the Post-Conviction Procedures Act be
tolled. Id. at 634.

Unlike the petitioner in Whitehead, we cannot conclude that the Petitioner was
diligently pursuing his rights under the first prong of the Whitehead-Holland test. Even if
we conclude that trial counsel abandoned the Petitioner on direct appeal, we agree with
the trial court that nothing prevented the Petitioner from filing his petition in the
intervening years between his discovery in October 2003 that trial counsel had abandoned
his appeal and the filing of his post-conviction petition in April 2014. Considering the
General Assembly’s clear preference that the post-conviction statute of limitations be
strictly construed, we do not find this to be one of those rare cases in which it would be
“unconscionable to enforce the limitation period against the [petitioner][.]” Id. at 631-32.

Because the petition is untimely and due process considerations do not require
tolling of the statute of limitations, the post-conviction court properly dismissed the
petition as time-barred.4

B. Petition for writ of error coram nobis relief

The Petitioner also contends that the trial court erred by denying coram nobis
relief. He asserts that he presented newly discovered evidence showing that trial counsel
was engaged in a conspiracy with the Petitioner’s co-defendants during his representation
of the Petitioner and that trial counsel was working against the Petitioner’s interests. The
State responds that the trial court properly denied the coram nobis petition because the
trial court discredited Mr. Perry’s testimony and because the Petitioner failed to offer
admissible evidence of a conspiracy between trial counsel and the Petitioner’s co-
defendants.

Tennessee Code Annotated section 40-26-105 provides relief in criminal cases by
petition for error coram nobis and states in pertinent part:

The relief obtainable by this proceeding shall be confined to error 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 new trial, on appeal in the nature of a
writ, 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

4
In addition to arguing that he is entitled to due process tolling, the Petitioner contends that he is
entitled to relief on the merits of his post-conviction petition. Because we resolve this matter on the
timeliness of his post-conviction petition, we do not reach the merits of the petition.
- 24 -
 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.

Tenn. Code Ann. § 40-26-105(b) (2016). A petition for writ of error coram nobis should
recite:

(a) the grounds and nature of the newly discovered evidence; (b) why the
admissibility of the newly discovered evidence may have resulted in a
different judgment if the evidence had been admitted at the previous trial;
(c) the petitioner was without fault in failing to present the newly
discovered evidence at the appropriate time; and (d) the relief sought by the
petitioner.

State v. Hart, 911 S.W.2d 371, 374-75 (Tenn. Crim. App. 1995) (internal citations and
quotation marks omitted).

The writ of error coram nobis is “an extraordinary procedural remedy,” providing
relief in only a limited number of cases. State v. Mixon, 983 S.W.2d 661, 672 (Tenn.
1999) (emphasis in original). “The purpose of this remedy ‘is to bring to the attention of
the [trial] court some fact unknown to the court, which if known would have resulted in a
different judgment.’” Hart, 911 S.W.2d at 374 (quoting State ex rel. Carlson v. State,
407 S.W.2d 165, 167 (Tenn. 1966)). The decision of whether to grant or deny a petition
for writ of error coram nobis on its merits rests within the sound discretion of the trial
court. State v. Vasques, 221 S.W.3d 514, 527-28 (Tenn. 2007); Hart, 911 S.W.2d at 375.
Before granting relief, the evidence must establish, and the trial court must find, “that the
subsequently or newly discovered evidence ‘may have resulted in a different judgment
had it been presented at the trial.’” Hart, 911 S.W.2d at 375 (quoting Tenn. Code Ann. §
40-26-105). The newly discovered evidence must be admissible and credible because the
ultimate issue is whether the result at trial would have been different with all relevant
evidence presented. Wilson v. State, 367 S.W.3d 229, 235 (Tenn. 2012). Accordingly,
the trial court must be “reasonably well satisfied” with the veracity of the new evidence.
Vasques, 221 S.W.3d at 527.

In this case, the trial court determined that the Petitioner failed to present credible
evidence that trial counsel conspired with the Petitioner’s co-defendants to convict the
Petitioner of the crime or that trial counsel had a conflict of interest. The trial court found
that Mr. Perry’s testimony—that he threatened the Petitioner “to take the charge” and that
he colluded with other gang members and trial counsel to have the Petitioner held
responsible for the shooting—was not credible. The trial court noted that Mr. Perry was
- 25 -
a convicted felon and a high-ranking gang member. His testimony at the evidentiary
hearing regarding the Petitioner’s participation in the crime was inconsistent, and Mr.
Perry gave a written statement to police implicating the Petitioner before trial. Moreover,
trial counsel specifically denied participating in a conspiracy to frame the Petitioner with
the crime, and the Petitioner offered no testimony or other evidence that trial counsel
influenced the Petitioner’s written admissions to police or the substance of the
Petitioner’s trial testimony. A review of the trial record reflects that trial counsel pursued
a reasonable defense strategy in light of the overwhelming evidence against the
Petitioner. Specifically, the State established the Petitioner’s guilt through video
surveillance, eyewitness testimony identifying the Petitioner as the shooter, and the
Petitioner’s own admissions to committing the crime. Under these circumstances, the
trial court did not abuse its discretion by denying coram nobis relief based on the
Petitioner’s claims.

III. Conclusion

For the aforementioned reasons, we affirm the judgment of the trial court.

____________________________________
ROBERT L. HOLLOWAY, JR., JUDGE

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