The opinion
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs October 4, 2016
DARREN BROWN v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 06-08194 Chris Craft, Judge
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No. W2016-00719-CCA-R3-ECN - Filed November 15, 2016
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Petitioner, Darren Brown, appeals the dismissal of his petition for writ of error coram
nobis after the coram nobis court determined that the petition was untimely. We affirm
the judgment of the coram nobis court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
TIMOTHY L. EASTER, J., delivered the opinion of the court, in which ALAN E. GLENN and
CAMILLE R. MCMULLEN, JJ., joined.
Eric Mogy, Knoxville, Tennessee, for the appellant, Darren Brown.
Herbert H. Slatery III, Attorney General and Reporter; Jeffrey D. Zentner, Assistant
Attorney General; Amy P. Weirich, District Attorney General, for the appellee, State of
Tennessee.
OPINION
Over eight years ago, Petitioner was convicted of first degree murder and
sentenced to life imprisonment after he killed the victim, Darren Taylor, by shooting him
in the back four times while the victim was sitting in a parked car at County Line Grocery
in Memphis. State v. Darren Brown, No. W2008-01866-CCA-R3-CD, 2010 WL 22812,
at *1 (Tenn. Crim. App. Jan. 5, 2010), perm. app. denied (Tenn. Apr. 14, 2010).
Petitioner‟s conviction was affirmed on direct appeal. Id. Subsequently, Petitioner
sought post-conviction relief. The petition was dismissed as untimely. Darren Brown v.
State, No. W2012-02584-CCA-MR3-PC, 2013 WL 6405736, at *1 (Tenn. Crim. App.
Dec. 5, 2013), perm. app. denied (Tenn. May 14, 2014). This Court affirmed the
dismissal of the post-conviction petition on appeal. Id.
On August 28, 2014, Petitioner filed a pro se petition for coram nobis relief, in
which he alleged that the State failed to turn over an exculpatory statement given by one
of the State‟s witnesses, Dorrell Jones. Petitioner acknowledged that the petition was
untimely but argued that due process should toll the statute of limitations. Petitioner
claimed that he was not aware of the statement until June 19, 2014.
The coram nobis court appointed an attorney to represent Petitioner at a hearing on
the petition. The coram nobis court issued a written order denying the petition on the
basis that the evidence was not newly discovered because the “evidence was in fact
presented at trial.” Additionally, the court found that the claim was “time-barred.”
Petitioner filed a timely notice of appeal.
Analysis
On appeal, Petitioner claims that the statement of Mr. Jones constituted newly
discovered evidence and that the coram nobis court improperly denied relief. Petitioner
acknowledges the untimely nature of the petition but fails to argue how or why the statute
of limitations should be tolled in order for him to receive coram nobis relief. The State
insists that the petition is untimely and that Petitioner has made “no attempt to challenge
the coram nobis court‟s dismissal of his petition . . . or make argument that due process
should toll the statute of limitations.” We agree with the State.
A writ of error coram nobis lies “for subsequently or newly discovered evidence
relating to matters which were litigated at the trial if the judge determines that such
evidence may have resulted in a different judgment, had it been presented at the trial.”
T.C.A. § 40-26-105(b); State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995). In
order to seek coram nobis relief, a petitioner must “establish[] that the petitioner was
„without fault‟ in failing to present the evidence at the proper time.” Harris v. State, 102
S.W.3d 587, 592-93 (Tenn. 2003). To be considered “without fault,” the petitioner must
show that “the exercise of reasonable diligence would not have led to a timely discovery
of the new information.” State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007). The
coram nobis court will then determine “whether a reasonable basis exists for concluding
that had the evidence been presented at trial, the result of the proceedings might have
been different.” Id. at 526.
A petition for a writ of error coram nobis must be filed within one year after the
judgment becomes final. T.C.A. § 27-7-103. For the purposes of coram nobis relief, a
judgment becomes final thirty days after the entry of the judgment in the trial court if no
post-trial motion is filed or upon entry of an order disposing of a timely filed post-trial
motion. Mixon, 983 S.W.2d at 670. It has been the “longstanding rule that persons
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seeking relief under the writ must exercise due diligence in presenting the claim.” Id.
The State bears the burden of raising the statute of limitations as an affirmative defense
but the “failure to do so does not result in a waiver if the opposing party is given fair
notice of the defense and an opportunity to rebut it.” Sands v. State, 903 S.W.2d 297,
299 (Tenn. 1995).
It appears from the record before us that Petitioner‟s judgment became final in
2008. Petitioner did not file his petition for a writ of error coram nobis until 2014, well
outside of the one-year statute of limitations period. On appeal, Petitioner does not
present any argument that the statute of limitations should be tolled or explain how the
coram nobis court erred by dismissing the petition. Accordingly, this issue is waived.
See Tenn. R. App. P. 27(a)(7) (stating that an appellant‟s brief must contain an argument
“[s]etting forth . . . the contentions of the appellant with respect to the issues presented,
and the reasons therefore, including the reasons why the contentions require appellate
relief, with citations to the authorities and appropriate references to the record. . . relied
on”); Tenn. Ct. Crim. App. R. 10(b) (“Issues which are not supported by argument,
citation to authorities, or appropriate references to the record will be treated as waived in
this Court.”). Moreover, Petitioner‟s claim of newly discovered evidence does not
constitute a “later-arising” claim because the evidence at issue—the content of Mr.
Jones‟s second statement to police—was actually part of the evidence at Petitioner‟s trial.
In other words, Petitioner failed to prove that “the exercise of reasonable diligence would
not have led to a timely discovery of the new information.” Vasques, 221 S.W.3d at 527.
Petitioner is not entitled to relief.
Conclusion
Based on the foregoing, we affirm the judgment of the coram nobis court.
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TIMOTHY L. EASTER, JUDGE
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