Laquan Napoleon Johnson v. State of Tennessee

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 11, 2015

LAQUAN NAPOLEON JOHNSON v. STATE OF TENNESSEE

Appeal from the Circuit Court for Putnam County

No. 11-0153 David A. Patterson, Judge

No. M2014-00976-CCA-R3-ECN - Filed March 31, 2015

Laquan Napoleon Johnson (“the Petitioner”) appeals from the denial of his Petition for Writ

of Error Coram Nobis (“the petition”). The coram nobis court interpreted the petition to

allege an error coram nobis claim as well as a post-conviction claim. It summarily denied

the error coram nobis claim and dismissed the post-conviction claim as time-barred.1 After

a review of the record and applicable law, we affirm the judgment of the coram nobis court.

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

R OBERT L. H OLLOWAY, J R., J., delivered the opinion of the Court, in which T HOMAS T.

W OODALL, P.J., and T IMOTHY L. E ASTER, J., joined.

Laquan Napoleon Johnson, pro se, Nashville, Tennessee, as the appellant.

Herbert H. Slatery, III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant

Attorney General; Randall A. York, District Attorney General; and Beth Willis, Assistant

District Attorney General, for the appellee, State of Tennessee.

1

The record contains one order from the coram nobis court denying the Petitioner’s claims.

However, it appears from that order that the coram nobis court interpreted the petition to raise separate error

coram nobis and post-conviction claims. Both claims are addressed in the Order Denying Petition for Writ

of Error Coram Nobis.

OPINION

I. Factual and Procedural Background

On November 17, 2011, the Petitioner entered guilty pleas to one count of sale of

cocaine over .5 grams and one count of sale of cocaine in violation of the drug-free school

zone law. On March 27, 2012, the Petitioner was sentenced to an effective 12 years in the

Tennessee Department of Correction. Judgments of conviction were entered on April 3,

2012. There is no indication in the record that the Petitioner filed any post-trial motions or

an appeal.

On January 4, 2013, the District Attorney General sent a letter to the Petitioner in

response to the Petitioner’s Freedom of Information Request and Public Records Request.

Attached to the letter was a CD containing the State’s case file for the Petitioner’s

convictions. Based on the information contained in that case file, the Petitioner filed a pro

se Petition for Writ of Error Coram Nobis on January 6, 2014, alleging newly discovered

evidence in the context of Brady v. Maryland, 373 U.S. 83 (1963). In his rambling, 37-page

petition, the Petitioner argued that the case file sent from the District Attorney General’s

office contained “newly discovered information and evidence” and that, had the Petitioner

received this evidence prior to his guilty plea, he “may have” insisted on going to trial.

Additionally, the Petitioner claimed that the State’s failure to disclose the evidence in the file

deprived him of effective assistance of counsel and rendered his guilty plea involuntary.2

However, the Petitioner failed to specifically identify the newly discovered evidence.

Instead, he simply made general references to the State’s case file and attached what appears

to be the entire case file to the petition.

In addition to the error coram nobis claim, the petition included arguments that trial

counsel was ineffective. First, the Petitioner asserted that trial counsel was ineffective for

failing to “properly investigate the facts, circumstances and the constitutional law that applies

to Petitioner’s case.” Second, the Petitioner contended that trial counsel was ineffective for

failing to file a motion to suppress “unconstitutional evidence derived from the ba[d] faith

acts of the undercover officers of the State. . . .” 3

2

It is worth noting that the case file sent to the Petitioner contains a letter, dated June 27, 2011, that

was sent from the State to the Petitioner’s trial counsel in response to trial counsel’s Motion for Discovery.

In that letter, the State granted trial counsel an “open file” review, wherein trial counsel was permitted to

schedule an appointment and inspect the contents of the State’s file for the Petitioner’s case.

3

It is unclear from the record whether the Petitioner has previously filed a post-conviction petition

to litigate these issues.

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In its Amended Response to Petition for Writ of Error Coram Nobis, the State argued

that the petition should be dismissed because the Petitioner did not specifically identify the

newly discovered evidence that formed the basis of his coram nobis claim. Additionally, the

State contended that the Petitioner should have filed his claim of ineffective assistance of

counsel in a post-conviction petition and, because the post-conviction claim was filed more

than one year from the date his sentence became final, it was time-barred.

The coram nobis court summarily denied the petition “based on the record as a whole

and the fact that [the Petitioner’s] petition lacked specificity about any newly discovered

evidence.” As to the Petitioner’s claim of ineffective assistance of counsel, the coram nobis

court interpreted the argument to raise a post-conviction claim and concluded that the claim

was time-barred. This timely appeal followed.

II. Analysis

On appeal, we interpret the Petitioner’s brief to raise the following issues: (1) whether

the coram nobis court abused its discretion when it summarily denied the petition; and (2)

whether trial counsel was ineffective.4 The State argues that it “specifically pled the defense

of statute of limitations” in the lower court and, because the Petitioner did not argue that the

one-year statute of limitations should be waived for due process reasons, his coram nobis

claim is time-barred. In the alternative, the State contends that the coram nobis court did not

abuse its discretion because the Petitioner failed to provide any newly discovered evidence

that would have resulted in a different judgment.

Error Coram Nobis Claim

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 certain evidence at the

proper time, a writ of error coram nobis will lie for subsequently or newly

4

In his brief, the Petitioner lists the issues presented on appeal as (1) “the Petitioner received

ineffective assistance of counsel;” (2) “abuse of discretion;” (3) “voluntariness of plea;” (4) “miscarriage of

justice;” and (5) “prejudiced.” However, based on the substance of his arguments we interpret the

Petitioner’s brief to raise the issues articulated above.

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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) (2014). Even though the language of the statute uses the

term “trial,” our supreme court has held that the writ of error coram nobis is available to

challenge a guilty plea. Wlodarz v. State, 361 S.W.3d 490, 504 (Tenn. 2012).

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.’” State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995) (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 coram nobis 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).

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.” Hart, 911 S.W.2d at 374-

75 (internal citations and quotation marks omitted).

Petitions for writ of error coram nobis are subject to a one-year statute of limitations.

Tenn. Code Ann. § 27-7-103 (2014); Harris v. State, 301 S.W.3d 141, 144 (Tenn. 2010).

“The statute of limitations is computed from the date the judgment of the trial court becomes

final, either thirty days after its entry in the trial court if no post-trial motions are filed or

upon entry of an order disposing of a timely filed, post-trial motion.” Harris, 301 S.W.3d at

144 (citing Mixon, 983 S.W.2d at 670). Calculating the statute of limitations in this manner

is consistent with the “longstanding rule that persons seeking relief under the writ must

exercise due diligence in presenting the claim.” Mixon, 983 S.W.2d at 670; Harris, 301

S.W.3d at 144.

In certain circumstances, due process considerations may require tolling the statute

of limitations. Workman v. State, 41 S.W.3d 100, 101 (Tenn. 2001). To determine whether

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due process requires tolling, we must balance the State’s interest in preventing “stale and

groundless” claims against the petitioner’s interest in having a hearing to present newly

discovered evidence which may have led the jury to a different verdict if it had been

presented at trial. Id. at 103. To balance these interests, courts should use a three-step

analysis:

(1) determine when the limitations period would normally have begun to run;

(2) determine whether the ground for relief actually arose after the limitations

period would normally have commenced; and (3) if the grounds are “later-

arising,” determine if, under the facts of the case, a strict application of the

limitations period would effectively deny the petitioner a reasonable

opportunity to present the claim.

Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995); see also Harris, 301 S.W.3d at 145.

Whether a claim is time-barred is a question of law, which we review de novo. Harris, 301

S.W.3d at 144 (citing Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn. 2007)).

The State bears the burden of raising the statute of limitations as an affirmative

defense. Id. However, the State’s failure to do so will not result in a waiver “if the opposing

party is given fair notice of the defense and an opportunity to rebut it. . . .” Wilson v. State,

367 S.W.3d 229, 234 (Tenn. 2012) (quoting Sands, 903 S.W.2d at 299 (internal quotation

marks omitted). For instance, when a petitioner raises the issue of statute of limitations and

requests that it be tolled on due process grounds, the State does not waive the statute of

limitations defense by failing to specifically plead it as an affirmative defense. Id.

In this case, the State incorrectly claims that it specifically pleaded the statute of

limitations as an affirmative defense to the coram nobis claim in the court below. The State

did affirmatively plead the statute of limitations as to the Petitioner’s post-conviction claim,

but it did not do so for the error coram nobis claim. Nevertheless, in the petition, the

Petitioner contended that due process should toll the statute of limitations. However, even

though the Petitioner requested due process tolling, he made no argument in the petition or

in his brief in support of that request. Therefore, in light of the Petitioner’s request for due

process tolling, the statute of limitations defense is not waived. See Wilson, 367 S.W.3d at

234.

The Petitioner argues that his petition was timely filed because it was filed “within

one year of the newly discovered information and evidence.” However, the Petitioner

incorrectly calculates the statute of limitations. The statute of limitations is computed from

the date the judgement of the trial court becomes final, not the date the Petitioner received

the newly discovered evidence. See Harris, 301 S.W.3d at 144. The judgment of conviction

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was entered on April 3, 2012, and there is no indication in the record that the Petitioner filed

any post-trial motions or an appeal. The petition was not filed until January 6, 2014, almost

two years after the judgment of the trial court became final. As such, it was untimely filed.

In the alternative, the Petitioner claims that due process should toll the statute of limitations,

but he provides no argument to support that claim. Because the petition was untimely filed

and the Petitioner makes no argument as to why due process should toll the statute of

limitations, the petition is time-barred.

Statute of limitations defense notwithstanding, we will address the merits of the

Petitioner’s error coram nobis claim. The Petitioner claimed that he received “newly

discovered information and evidence” in the case file from the District Attorney General’s

office. However, he failed to specifically identify the newly discovered evidence in his

petition. Instead, he simply referenced the case file as a whole. The file contains the

Petitioner’s indictment; Tennessee Bureau of Investigation Official Forensic Chemistry

Reports; the Plea of Guilty and Waivers of Jury Trial and of Appeal; the order directing the

Petitioner to appear for sentencing, along with unsigned transportation orders; the

presentence report; judgment sheets for the instant convictions, as well as convictions from

2003; notes and a “narcotics investigation log of events” from the Putnam County Sheriff’s

Department; correspondence from the District Attorney General’s Office to the detective in

charge of the investigation notifying him of the grand jury hearing; a “Criminal Case Cover

Sheet;” the Petitioner’s pro se Demand for Speedy Trial; the Incident Reports for the charged

offenses; trial counsel’s discovery request; the State’s letter to trial counsel granting him an

“open file” review; and a fax sent to trial counsel dated November 7, 2011, stating that the

State would not offer the Petitioner a plea. The petition did not identify which of these

documents was newly discovered. Therefore, it did not recite “the grounds and nature of the

newly discovered evidence,” see Hart, 911 S.W.2d at 374-75, and the coram nobis court had

no way to determine what parts of the case file constituted “newly discovered evidence.”

Consequently, we hold that the coram nobis court did not abuse its discretion when it denied

the petition for lack of specificity.

Ineffective Assistance of Counsel Claim

In his brief, the Petitioner argues that trial counsel was ineffective for “failing to

properly investigate prior to advising [the Petitioner] to enter into a guilty plea” and “counsel

was ineffective for failing to properly and adequately litigate [the Petitioner’s]

[c]onstitutional [c]laims and [c]hallenges in violation of the [F]ifth, [S]ixth, and [F]ourteenth

[A]mendment rights to the U.S. Constitution and the corresponding articles and sections of

the Tennessee Constitution.”

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We first note that ineffective assistance of counsel is not an appropriate ground for

relief pursuant to a writ of error coram nobis. Omowali Ashanti Shabazz v. State, No.

E2010-01639-CCA-R3-PC, 2011 WL 2749536, at *7 (Tenn. Crim. App. July 15, 2011),

perm. app. denied, (Tenn. Oct. 18, 2011); Arthur L. Armstrong v. State, No. M2005-01325-

CCA-R3-CD, 2006 WL 1626726, at *10 (Tenn. Crim. App. June 8, 2006); Domingo Ponce

v. State, No. M2004-02257-CCA-R3-CO, 2005 WL 1303125, at *3 (Tenn. Crim. App. May

31, 2005). Even if the Petitioner’s claims are interpreted as claims for post-conviction relief,

the trial court properly found that the post-conviction statute of limitations had expired in this

case. See Tenn. Code Ann. § 40-30-102(a) (2014) (imposing a one-year statute of limitations

for petitions for post-conviction relief). The Petitioner had until May 3, 2013, one year from

the date his conviction became final, to file a petition for post-conviction relief. The petition

was not filed until January 6, 2014. Therefore, it is untimely filed. Moreover, the Petitioner

has not alleged any grounds that would require that the statute of limitations be tolled for his

claims. According, insofar as the Petitioner’s pleading may be considered a petition for post-

conviction relief, it was properly dismissed without a hearing.

III. Conclusion

For the foregoing reasons, we affirm the judgment of the coram nobis court.

_________________________________

ROBERT L. HOLLOWAY, JR., JUDGE

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