Tommy Nunley v. State of Tennessee

07/19/2018

IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

November 30, 2017 Session1

TOMMY NUNLEY v. STATE OF TENNESSEE

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Shelby County

No. 96-10669 John Wheeler Campbell, Judge

___________________________________

No. W2016-01487-SC-R11-ECN

___________________________________

This appeal arises out of the appellant prisoner’s petition for a writ of error coram nobis.

The petitioner, convicted of aggravated rape in 1998, asserted in his petition that the State

violated his constitutional right to due process of law by withholding exculpatory

evidence from the defense in his trial, in violation of Brady v. Maryland, 373 U.S. 83

(1963). Without asking the State for a response to the coram nobis petition and without

an evidentiary hearing, the trial court dismissed the petition in part because it was filed

long after expiration of the one-year statute of limitations and demonstrated no reason for

equitable tolling of the statute of limitations. The Court of Criminal Appeals declined to

consider the statute of limitations because the State had not pled it as an affirmative

defense, but affirmed the dismissal because the petition did not present newly discovered

evidence warranting coram nobis relief. On appeal, we initially clarify that an error

coram nobis proceeding is not the appropriate procedural vehicle for obtaining relief on

the ground that the petitioner suffered a constitutional due process violation under Brady.

As to the petition, we hold that (1) coram nobis petitions with insufficient allegations are

susceptible to summary dismissal on the face of the petition, without discovery or an

evidentiary hearing; (2) Tenn. R. Civ. P 8.03 does not apply to a petition for writ of error

coram nobis; (3) timeliness under the statute of limitations is an “essential element” of a

coram nobis claim that must be demonstrated on the face of the petition; and (4) if the

petitioner seeks equitable tolling of the statute of limitations, the facts supporting the

tolling request must likewise appear on the face of the petition. Applying this standard,

we find no error in the trial court’s decision to dismiss the coram nobis petition and

affirm.

1

Oral argument was heard in this case on the campus of Lane College in Jackson, Tennessee, as

part of the S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal

Appeals Affirmed

HOLLY KIRBY, J., delivered the opinion of the Court, in which JEFFREY S. BIVINS, C.J.,

and CORNELIA A. CLARK, SHARON G. LEE, and ROGER A. PAGE, JJ., joined.

Lance R. Chism, Memphis, Tennessee, for the Petitioner/Appellant, Tommy Nunley. 2

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor

General; Zachary T. Hinkle, Assistant Attorney General, for the Respondent/Appellee,

State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

In February 1998, a Shelby County jury convicted Petitioner/Appellant Tommy

Nunley of aggravated rape of his thirteen-year-old female cousin on January 17, 1996.

The trial court sentenced him to twenty-five years of imprisonment.3 Nunley v. State, No.

W2003-02940-CCA-R3-PC, 2006 WL 44380, at *1 (Tenn. Crim. App. Jan. 6, 2006),

perm. app. dismissed (Tenn. June 26, 2006). On direct appeal, the Court of Criminal

Appeals affirmed the conviction and the sentence. State v. Nunley, No. 02C01-9804-CR-

00114, 1999 WL 135044, at *1 (Tenn. Crim. App. Mar. 12, 1999), perm. app. denied

(Tenn. Sept. 13, 1999).

On July 25, 2000, Nunley filed a petition for post-conviction relief. Nunley, 2006

WL 44380, at *2. The petition claimed that Nunley’s “trial counsel was ineffective for

failing to move for state-funded expert assistance for DNA testing of various items

collected during the investigation of the case.” Id. The post-conviction court conducted

an evidentiary hearing on the motion. Id. In the hearing, the assistant public defender

who represented Nunley prior to trial4 testified that she had requested DNA testing of a

2

The Court appreciates the excellent service of Attorney Lance Chism as appointed counsel for

Mr. Nunley before this Court.

3

The Court may take judicial notice of court records and actions in earlier proceedings of the

same case. Delbridge v. State, 742 S.W.2d 266, 267 (Tenn. 1987).

-2-

substance that appeared to be semen on the victim’s gray pants, but the Memphis Sexual

Assault Resource Center told her that the specimen was too small to conduct any tests.

Id. at *2. Nunley acknowledged that the assistant public defender had told him this

information. Id. at *4.

On September 13, 2001, the post-conviction court entered an order, sua sponte,

directing the TBI to conduct DNA comparison testing on biological samples from Nunley

and those in the victim’s sexual assault kit. Id. at *4. On June 27, 2003, the State

reported that the sexual assault kit had been either lost or destroyed and was no longer

available for testing.5 Id. at *4. On July 11, 2003, the post-conviction court granted

Nunley’s petition for post-conviction relief, finding that the failure to test the evidence at

the time of trial resulted in a violation of Nunley’s constitutional right to a fair trial. Id.

The State appealed.

The Court of Criminal Appeals reversed the post-conviction court. Id. at *7. The

proof did not support a finding that trial counsel’s request for DNA testing would have

affected the outcome of Nunley’s trial, the appellate court stated, without “engag[ing] in

pure conjecture.” Id. at *6. For this reason, it held that Nunley had failed to establish

that he suffered prejudice from his trial counsel’s allegedly deficient performance, and on

this basis reinstated the judgment of conviction. Id. at *7.

In May 2014, Nunley filed a petition for relief under the Post-Conviction DNA

Analysis Act,6 requesting DNA testing on all evidence in the State’s possession. Nunley

v. State, No. W2014-01776-CCA-R3-PC, 2015 WL 1650233, at * 1 (Tenn. Crim. App.

April 13, 2015), perm. app. denied (Tenn. Sept. 21, 2015). The State filed a response in

opposition on July 7, 2014. Id. Ten days later, the trial court denied Nunley’s petition

based on the post-conviction court’s prior finding that any evidence that would have been

tested no longer existed. Id. The Criminal Court of Appeals affirmed. Id. at *3.

4

The assistant public defender represented Nunley until March 27, 1997, and then was permitted

to withdraw from representing Nunley prior to the trial due to a conflict of interest. Nunley, 2006 WL

44380, at *2. She was not the subject of this ineffective assistance of counsel claim.

5

The State reported that the victim’s sexual assault kit, along with three hundred other kits, was

either lost or destroyed in “a flood at U.T. Bowld.” Id. at *4.

6

The Post-Conviction DNA Analysis Act of 2001 is codified at Tennessee Code sections 40-30-

301 through 40-30-313 (2012 & Supp. 2017).

-3-

On May 25, 2016, Nunley delivered a pro se petition for writ of error coram nobis

to prison officials for mailing; it was filed with the Shelby County Criminal Court on

May 31, 2016. Nunley’s coram nobis petition claimed that the State’s July 7, 2014

response to his petition for post-conviction DNA analysis included four exculpatory

exhibits of which he had not previously been aware. The coram nobis petition asserted

that this demonstrated a Brady violation:

[T]he State violated his constitutional right to due process of law, and in

particular the principle announced in Brady v. Maryland, 373 U.S. 83, 83 S.

Ct. 1194 (1963), by withholding and failing to provide the defense copies

of exculpatory evidence, specifically the results of DNA Analysis Test

Reports, concerning [the victim’s] Rape Kit and other clothing items,

conducted by Cellular and Molecular Forensics Laboratory that exonerated

[him] of the offense of Aggravated Rape[.]

The first exhibit to Nunley’s coram nobis petition, Exhibit A, includes two reports

from the Cellular and Molecular Forensics Laboratory at the University of Tennessee,

Memphis.7 Exhibit B consists of two letters from the assistant district attorney to the TBI

Crime Lab, sent in advance of trial, asking for DNA testing of the evidence in Nunley’s

case, or at least blood typing. Exhibit C is an “Official Serology Report” from the TBI

Crime Lab, dated September 25, 1997.

The fourth exhibit, Exhibit D, is a “memo” to the prosecution’s case file from

Assistant District Attorney David Shapiro, dated October 3, 1997. A type-written

statement on the memo reads, “I spoke to Steve Wiechman at the TBI lab. His lab’s

policy is not to re-do tests already done by another certified lab. The local lab (Becky

Joyner’s outfit) determined that there was no match between the defendant and the

[victim]. He will not re-do any tests.” It also includes a photocopied hand-written note

dated September 2, stating that Steve Wiechman of the TBI Lab had called regarding

Nunley’s case and adding the following hand-written message: “TBI no longer does

blood grouping. Due to Becky Joyner [sic] results, he cannot do DNA. He will not re-do

Becky Joyner’s test.”

7

On appeal to this Court, Nunley concedes that the first three exhibits to his petition, Exhibits A,

B, and C, do not qualify as newly-discovered exculpatory evidence. Consequently, we only briefly

describe the first three exhibits and provide a more detailed description of the fourth, Exhibit D, on which

Nunley primarily relies.

-4-

In his coram nobis petition, Nunley claimed that these four exhibits demonstrate

that, prior to trial, the State knew that the victim’s rape kit and clothing items were

subjected to DNA testing by Cellular and Molecular Forensics Laboratory and that the

testing exonerated him of the offense of aggravated rape.8 He contended that the exhibits

established that the State withheld exculpatory evidence that would have exonerated him,

in violation of his constitutional right to due process under Brady v. Maryland, 373 U.S.

at 87 (“We now hold that the suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad faith of the prosecution.”). Nunley

asserted that he was “reasonably diligent in discovering the new evidence” and that “the

jury might have reached a different conclusion had the truth been told based on the new

evidence.” He asked the trial court to set aside his conviction and grant him a new trial

pursuant to Tennessee Code section 40-26-105(c) (2012 & Supp. 2017).

The trial court did not seek a response from the State on Nunley’s coram nobis

petition and did not conduct an evidentiary hearing on it. It dismissed the petition on

several bases. First, the trial court found that the issues Nunley raised had been raised

before and fully litigated—first in Nunley’s trial, then in his petition for post-conviction

relief, and then again in his petition for post-conviction DNA testing. Second, the trial

court held that Nunley had not established that there is “newly discovered evidence that

would give rise to relief” under the coram nobis statutes. It commented, “All the alleged

evidence in this application has been the subject of litigation for over 17 years.” Third,

the trial court noted that a petition for coram nobis relief must be filed within one year of

the conviction, and held that Nunley had “shown no good reason for the one year statute

of limitations to be tolled in this case,” adding, “The petition should be dismissed as time

barred.” For all of these reasons, the trial court dismissed Nunley’s petition for writ of

error coram nobis.

Nunley appealed. On appeal, the Court of Criminal Appeals addressed two of the

bases given by the trial court for its decision. Nunley v. State, No. W2016-01487-CCA-

R3-ECN, 2017 WL 838241, at *-3-4 (Tenn. Crim. App. March 3, 2017).

8

In making this assertion, Nunley’s petition significantly misquoted Exhibit D, quoted above.

Nunley’s petition altered the language in the memo to the file to make it sound as though DNA analysis

was in fact performed: “It is lab’s policy not to re-do test already done by another certified lab [that] had

already performed DNA Analysis Test on [the victim’s] Rape, which the local lab (Becky Joyner’s outfit)

had already determined that there was no match (DNA Profile) between the defendant and [the victim].”

(altered language italicized)

-5-

First, the appellate court addressed the trial court’s holding that Nunley’s petition

for coram nobis relief was time-barred under the one-year statute of limitations. Id. at *

3. It held that the one-year statute of limitations set out in the statutes governing coram

nobis is an affirmative defense, so it had to be specifically raised by the State. Under the

facts of this case, the appellate court said, “the State did not plead the statute of

limitations as an affirmative defense in the trial court.” Id. For this reason, the appellate

court declined to address whether Nunley’s petition was timely and went on to address

his assertion that he is entitled to relief under the coram nobis statutes “on grounds that

the State [] violated his constitutional rights by withholding exculpatory evidence.” Id. at

*2.

After examining all of the exhibits, including the prosecutor’s memo to the file,

the Court of Criminal Appeals found that the test results discussed in the memo “are no

different than those available to petitioner prior to his trial.” Id. at *4. It noted that,

“regardless of what the memo suggests, testing performed by Cellular and Molecular

Forensics Laboratory did not, in fact, ‘determine[ ] that there was no match between the

defendant and the victim.’” Id. The appellate court concluded that, “examined within the

context of the record as a whole, the information contained in the memo does not qualify

as newly discovered evidence.” Id. It affirmed the trial court’s denial of coram nobis

relief because Nunley “failed to present newly discovered evidence to establish a

‘reasonable basis . . . for concluding that had the evidence been presented at trial, the

result of the proceedings might have been different.’” Id. (quoting State v. Vasques, 221

S.W.3d 514, 527 (Tenn. 2007)).

Nunley sought permission to appeal to this Court. In his application, Nunley

argued inter alia that the lower courts erred in denying him relief because the exhibits to

his coram nobis petition showed that the State had withheld exculpatory evidence,

specifically, the results of DNA testing that exonerated him of the offense of aggravated

rape, in violation of his constitutional right to due process under Brady, 373 U.S. at 87.

In support of this contention, Nunley cited Exhibit D, the prosecutor’s memo to the file.

We granted permission to appeal and appointed counsel to represent Nunley

before this Court.

ANALYSIS

In this appeal, Nunley contends that he is entitled to coram nobis relief because

Exhibit D to his petition shows that the State withheld exculpatory evidence at his trial

for aggravated rape. In his petition to the trial court, he asserted this was a violation of

-6-

his constitutional right to due process under the principles announced in Brady v.

Maryland, 373 U.S. at 87. He contends that the prosecutor’s memo to the file is newly

discovered exculpatory evidence showing that the State failed to disclose to his trial

counsel the fact that the local lab had conducted DNA testing and had “determined that

there was ‘no match’ between the defendant and the victim.”

To fully address Nunley’s argument, we briefly outline pertinent history of the

writ of error coram nobis in Tennessee. To establish the proper analytical framework, we

consider the underlying premise of Nunley’s petition, namely, whether a Brady claim is

cognizable in the context of a petition for writ of error coram nobis. After doing so, we

address whether Nunley’s petition should be dismissed as time-barred even though the

State was not brought into the coram nobis proceedings at the trial court level and

consequently did not assert the statute of limitations as an affirmative defense in the trial

court.

I. Background on Coram Nobis in Tennessee

The writ of error coram nobis9 “has ancient common-law roots.” Harris v. State,

301 S.W.3d 141, 148 (Tenn. 2010) (Koch, J., concurring) (footnote omitted). The

common law writ was developed in England to provide relief from judicial errors—

particularly “errors of fact not apparent in the record which would have, if known,

precluded the court from entering judgment.” 39 Am. Jur. 2d Habeas Corpus § 194

Coram Nobis - Generally (2008) (citing United States v. Morgan, 346 U.S. 502 (1954));

see also State v. Mixon, 983 S.W.2d 661, 667 (Tenn. 1999) (citing John S. Gillig,

Kentucky Post Conviction Remedies and the Judicial Development of Kentucky Rule of

Criminal Procedure 11.42, 83 Ky. L.J. 265, 320 (1994-95)). Since the common law

recognized neither a right to move for a new trial nor a right to appeal, this procedural

mechanism allowed courts to provide relief under “limited circumstances.” Mixon, 983

S.W.2d at 666-67 (citing Morgan Prickett, Writ of Error Coram Nobis in California, 30

Santa Clara L. Rev. 1, 3, 11 n.41 (1990)).

The writ of error coram nobis was incorporated into the common law

jurisprudence of the United States. Id. In Tennessee, the writ was recognized at common

law but was not available in criminal cases. Mixon, 983 S.W.2d at 667-68 (citing Green

9

The phrase “coram nobis” means “our court,” or “before us.” State v. Mixon, 983 S.W.2d 661,

667 (Tenn. 1999) (citing Black's Law Dictionary 304 (5th ed. 1979)). As the writ of error coram nobis

was originally conceived, it “was addressed to the very court which had rendered the judgment rather than

to an appellate or other reviewing court.” Id.

-7-

v. State, 216 S.W.2d 305 (Tenn. 1948)). In 1858, the General Assembly codified the

procedure for petitioning for a writ of error coram nobis. Id. (citing Code 1858, § 3111).

This early codification of the writ was “very limited in scope” and could not be used “to

challenge judgments in criminal cases.” Wlodarz v. State, 361 S.W.3d 490, 508 (Tenn.

2012) (Koch, J., concurring in result only) (citing Green, 216 S.W.2d at 306-07)(majority

opinion in Wlordarz abrogated by Frazier v. State, 495 S.W.3d 246 (Tenn. 2016)).

In 1955, Tennessee’s General Assembly extended the writ of error coram nobis to

apply specifically to criminal proceedings. Id. (citing 1955 Tenn. Pub. Acts ch. 166, §

1).10 However, the new statutory writ “could not be used to collaterally challenge a

conviction based on newly discovered evidence.” Wlodarz, 361 S.W.3d at 508 (Koch, J.,

concurring in result only). Finally, in 1978, the legislature “broadened the scope of the

writ to permit it to be used to challenge a judgment in a criminal case based on newly

discovered evidence.” Id. (citing Act of Mar. 22, 1978, ch. 738, § 1, 1978 Tenn. Pub.

Acts 658). In its current configuration, this statute provides:

The relief obtainable by this proceeding shall be confined to errors dehors

the record and to matters that were not or could not have been litigated on

the trial of the case, on a motion for a new trial, on appeal in the nature of a

writ of error, on writ of error, or in a habeas corpus proceeding. Upon a

showing by the defendant that the defendant was without fault in failing to

present certain evidence at the proper time, a writ of error coram nobis will

lie for subsequently or newly discovered evidence relating to matters which

were litigated at the trial if the judge determines that such evidence may

have resulted in a different judgment, had it been presented at the trial.

Tenn. Code Ann. § 40-26-105(b).

Meanwhile, “the writ of error coram nobis in civil cases was superseded when

Rule 60 of the Tennessee Rules of Civil Procedure became effective in 1971.” Mixon,

983 S.W.2d at 668 (footnotes omitted) (citing Tenn. R. Civ. P. 60.02 Advisory

Commission Comments (“This Rule supersedes chapter 7 of Title 27, T.C.A., dealing

with the writ of error coram nobis . . . .”)). However, “the adoption of Rule 60 did not

diminish or supersede the statute which extended the writ as an available remedy in

criminal proceedings.” Id.

10

The Post-Conviction Procedure Act was not enacted until 1967. Workman v. State, 22 S.W.3d

807, 810 (Tenn. 2000) (Drowota, J. concurring); Archer v. State, 851 S.W.2d 157, 162 (Tenn. 1993).

-8-

Owing to the civil heritage of the writ of error coram nobis in Tennessee, the

general statutes governing procedures for the writ remain codified in a section of the

Code pertaining to civil actions. See Tenn. Code Ann. §§ 27-7-101 to -108 (2017). As

discussed more fully below, these general statutes include the one-year statute of

limitations applicable to a petition for coram nobis relief. See Tenn. Code Ann. § 27-7-

103.

Against this backdrop, we consider the premise of Nunley’s petition, namely, that

he should be granted coram nobis relief based on a Brady claim that the State withheld

exculpatory evidence at trial.

II. Brady Violation in Context of Coram Nobis Petition

In Nunley’s petition for a writ of error coram nobis, he asserts that he is entitled to

coram nobis relief because the State allegedly violated “the principle announced in Brady

v. Maryland, 373 U.S. 83 (1963), by withholding and failing to provide the defense

copies of exculpatory evidence.” To provide an appropriate framework for addressing

Nunley’s argument, we first determine whether it is appropriate to consider an alleged

Brady violation in the context of a petition for writ of error coram nobis. As discussed

below, this question has been the source of some confusion in Tennessee.

Court of Criminal Appeals Decisions

After the 1978 coram nobis statute was enacted, our Court of Criminal Appeals

initially held that a violation of the Brady principle is not a ground for relief in the

context of a petition for a writ of error coram nobis. In a 1995 decision by the Court of

Criminal Appeals, an inmate who had been convicted of murder filed a petition for a writ

of error coram nobis; the petition claimed that he was “entitled to a new trial because the

state failed to turn over exculpatory material, as required by Brady v. Maryland,” at his

trial. State v. Kinnaird, No. 01C01-9404-CC-00149, 1995 WL 382612, at *4 (Tenn.

Crim. App. June 28, 1995), perm. app. denied (Tenn. Feb. 5, 1996) (hereinafter Kinnaird

I). Without elaboration, the appellate court in Kinnaird I rejected this contention, holding

that “[c]oram nobis is not a forum for the determination of a constitutional issue,” so the

petitioner’s claim did not “constitute grounds for a new trial under coram nobis

standards.” Id.

In 2001, this Court decided a case that did not mention Brady but nevertheless

figured into the subsequent discussion of whether a Brady claim can be considered in the

context of a petition for a writ of error coram nobis. In Workman v. State, 41 S.W.3d 100

-9-

(Tenn. 2001), the petitioner claimed that newly discovered scientific evidence would

demonstrate that he was actually innocent of the crime for which he was convicted,

capital murder. Id. at 103. The evidence became available to the petitioner long after

post-conviction proceedings had concluded, and the petition for coram nobis relief was

filed thirteen months after the petitioner became aware of the evidence. Id. The issue

before the Court was whether the petitioner was entitled to equitable tolling of the one-

year statute of limitations. Id. at 101. The Court cited the reasoning in Burford v. State,

845 S.W.2d 204 (Tenn. 1992), a post-conviction case, stating that, “before a state may

terminate a claim for failure to comply with procedural requirements such as statutes of

limitations, due process requires that potential litigants be provided an opportunity for the

presentation of claims at a meaningful time and in a meaningful manner.” Id. at 102

(quoting Burford, 845 S.W.2d at 205 (internal quotation marks omitted)). Without

describing how the petitioner came to obtain the newly discovered evidence, the Court

reasoned:

[Workman’s] claims are based upon evidence obtained from the Shelby

County Medical Examiner’s Office long after the conclusion of the state-

post-conviction proceedings. The delay in obtaining this evidence is not

attributable to the fault of Workman or his attorneys. In fact, Workman

previously had filed a subpoena requesting an x-ray of this type, but it was

not provided. No court in this State has actually held a hearing to fully

evaluate the strength of these claims.

Id. at 103. The Workman Court concluded that due process precluded dismissal of the

coram nobis petition based on the statutory time bar. Id. Reciting the requirements of

the coram nobis statute, the Court remanded the case for a hearing to give the petitioner

the opportunity to show that the newly discovered evidence “may have resulted in a

different judgment if the evidence had been admitted at the previous trial” and that he

was “without fault” in failing to present the newly discovered evidence at the appropriate

time. Id. at 104 (citing Tenn. Code Ann. § 40-26-105).

In a case decided after Workman, the Court of Criminal Appeals continued to

maintain that Brady claims are not appropriately considered in a petition for writ of error

coram nobis. In a 2001 case, the same inmate-petitioner in Kinnaird I filed a petition for

post-conviction relief, again alleging that the State withheld exculpatory evidence at trial

in violation of Brady. Kinnaird v. State, No. M2000-00037-CCA-R3-PC, 2001 WL

881371 (Tenn. Crim. App. Aug. 7, 2001), perm. app. denied (Tenn. Dec. 31, 2001)

(hereinafter “Kinnaird II”). Addressing whether the petitioner’s Brady claim was

resolved in the coram nobis appeal in Kinnaird I, the Court of Criminal Appeals held that

- 10 -

it was not. Id. at *5. Referring to Kinnaird I, the appellate court reiterated that “a

petition for a writ of error coram nobis is not the appropriate remedy by which to seek

relief from constitutional errors such as that asserted under Brady v. Maryland.” Id.

(citing Miles v. State, No. 03C01-9903-CR-00103, 2000 WL 2647, at *2 (Tenn. Crim.

App. Jan. 4 2000) (holding that a claim alleging constitutional due process error “is

cognizable in a post-conviction petition” but “does not qualify for relief in the form of a

writ of error coram nobis.”)). The court in Kinnaird II explained that the writ of error

coram nobis “is not designed to address Brady violations: hence, the statute contains no

requirement that the State withheld or suppressed the subsequently or newly discovered

evidence.” Id. at *6. It added that “Brady violations are constitutional violations: the

appropriate remedy is therefore a post-conviction proceeding.” Id. at *6. See also

Hedges v. State, No. E2002-02610-CCA-R3-PC, 2003 WL 22426831, *2 (Tenn. Crim.

App. Oct. 24, 2003) (following Kinnaird II in concluding that “Brady violations, as well

as constitutional violations, are not appropriate for coram nobis proceedings”); Harris v.

State, 102 S.W.3d 587, 591 (Tenn. 2003) (noting that “the State points out that an alleged

violation of Brady is not cognizable in a writ of error coram nobis proceeding” without

reaching issue).

This perception changed a few years later. In Freshwater v. State, 160 S.W.3d

548 (Tenn. Crim. App. 2004), the petitioner was convicted of first-degree murder. Over

thirty years after the conviction, her counsel reviewed the district attorney’s file and

discovered exculpatory evidence that had never been given to defense counsel. Id. at

552. The petitioner filed a petition for a writ of error coram nobis, asserting that the

prosecution’s failure to turn over the evidence to her trial counsel was a Brady violation.

Id. The trial court dismissed the petition based on the one-year statute of limitations, and

the petitioner appealed. Id.

On appeal, the Court of Criminal Appeals acknowledged the holding in Kinnaird I

and Kinnaird II that Brady claims are not a basis for granting coram nobis relief and

should instead be considered in post-conviction proceedings. Id. at 555. The Freshwater

court, however, questioned those decisions. Specifically, the Freshwater court expressed

concern that, although this Court decided Workman after Kinnaird I and before Kinnaird

II, Kinnaird II did not reference the intervening Supreme Court decision in Workman and

instead relied on Kinnaird I. Freshwater, 160 S.W.3d at 555. The Freshwater court

deemed this omission significant enough to “call[] into question” the Kinnaird II holding

that Brady violations are not an appropriate basis for coram nobis relief. Id.

Freshwater then concluded that the petitioner’s Brady claim could appropriately

be considered in the context of her petition for a writ of error coram nobis. Id. at 554-55.

- 11 -

It referenced the statute stating that coram nobis relief is appropriate for “matters that

were not or could not have been litigated on the trial of the case, on a motion for a new

trial, on appeal in the nature of a writ of error, on a writ of error, or in a habeas corpus

proceeding.” Id. at 555 (quoting Tenn. Code Ann. § 40-26-105) (internal quotation

marks omitted). After finding that “the [petitioner’s] allegations of the newly discovered

evidence in the context of violations of Brady v. Maryland, were not, and could not have

been, litigated previously,” the appellate court remanded the case to the trial court for

adjudication of the Brady claim. Id. at 555-56, 558.

The Freshwater Court’s characterization of Workman was unfortunate. As we

have noted, this Court’s analysis in Workman centered on whether due process required a

tolling of the statute of limitations applicable to the writ of error coram nobis. Workman,

41 S.W.3d at 101-104. The opinion indicates that the newly discovered evidence at issue

was obtained from the medical examiner’s office and that Workman’s trial counsel had

requested evidence of this type but it was not provided. Id. at 103. This information

established that neither the petitioner nor his attorneys were at fault for having not

produced the evidence sooner—an important consideration in determining whether the

statutory requirements for coram nobis relief have been met. Id. at 103-104; Tenn. Code

Ann. § 40-26-105(b). However, the Workman Court did not describe the coram nobis

petition as asserting a “Brady” claim and in fact did not mention Brady at all in its

analysis. Despite this, the Court of Criminal Appeals in Freshwater cited Workman in

support of its holding that the petitioner’s “allegations of the newly discovered evidence

in the context of violations of Brady v. Maryland” are “appropriately addressed in a

petition for writ of error coram nobis.” Freshwater, 160 S.W.3d at 555-56.

Thus, the Freshwater court mischaracterized Workman in a way that appeared to

conflate a constitutional claim under Brady with a statutory coram nobis claim based on

newly discovered evidence previously withheld by the State.11 As explained below, the

distinctions between these two types of claim are nuanced but significant.

11

The confusion may stem in part from the practice of using the term “Brady” as shorthand

reference to exculpatory evidence that must be disclosed to the defense. See, e.g., Jordan v. State, 343

S.W.3d 84, 97 (Tenn. Crim. App. 2011) (“the defendant requested the state to disclose any Brady

evidence”); Sanjines v. State, No. 03C01-9706-CR-00229, 1999 WL 41834, at *1 (Tenn. Crim. App. Feb.

2, 1999) (“Whether the prosecution committed misconduct by withholding Brady evidence”). The United

States Supreme Court has addressed this practice:

The term ‘Brady violation’ is sometimes used to refer to any breach of the broad

obligation to disclose exculpatory evidence—that is, to any suppression of so-called

‘Brady material’—although, strictly speaking, there is never a real “Brady violation”

- 12 -

In the wake of Freshwater, a number of decisions by our Court of Criminal

Appeals treated both Freshwater and Workman as having held that a Brady violation can

appropriately be raised as a ground for relief under the coram nobis statutes. See, e.g.,

Sykes v. State, No. W2016-01352-CCA-R3-ECN, 2017 WL 2820189, at *7 (Tenn. Crim.

App. June 29, 2017), perm. app. dismissed (Tenn. Dec. 8, 2017) (citing Freshwater for

authority that petitioner may raise a Brady violation in a coram nobis petition); Cauthern

v. State, No. W2015-01905-CCA-R3-ECN, 2017 WL 1103049, *8 (Tenn. Crim. App.

Mar. 24, 2017) (same), King v. State, No. 2014-01202-CCA-R3-ECN, 2015 WL

3409486, *7 (Tenn. Crim. App. May 28, 2015), perm. app. denied (Tenn. Sept. 16, 2015)

(stating that Workman and Freshwater “established that a coram nobis petition is the

proper cause of action in which to raise Brady violations”); Moats v. State, No. E2011-

02549-CCA-R3-PC, 2013 WL 221647, *10 (Tenn. Crim. App. Jan. 22, 2013), perm. app.

denied (Tenn. May 8, 2013) (citing Freshwater for the proposition that “[a] petition for a

writ of error coram nobis may be an appropriate remedy by which to seek relief from

constitutional errors such as that asserted under Brady v. Maryland”); Ratliff v. State, No.

E2011-01187-CCA-R3-PC, 2012 WL 1868312, *12 (Tenn. Crim. App. May 23, 2012),

perm. app. denied (Tenn. Oct. 16, 2012) (same); Shabazz v. State, No. E2010-01639-

CCA-R3-PC, 2011 WL 2749536, *10 (Tenn. Crim. App. July 15, 2011), perm. app.

denied (Tenn. Oct. 18, 2011) (same); Mayfield v. State, No. M2009-02640-CCA-R3-CO,

2010 WL 4545822, *6 (Tenn. Crim. App. Nov. 12, 2010) (following Freshwater as

controlling authority and finding petitioner’s allegations of newly discovered evidence in

the context of Brady violations are proper grounds for coram nobis relief); Armstrong v.

State, No. M2008-02328-CCA-R3-CO, 2010 WL 2977890, *13 (Tenn. Crim. App. July

30, 2010), perm. app. denied (Tenn. Jan. 18, 2011) (concluding petitioner not entitled to

error coram nobis relief because he failed to prove that the State suppressed evidence in

violation of Brady); Armstrong v. State, No. M2005-01325-CCA-R3-CD, 2006 WL

1626726, *7-8 (Tenn. Crim. App. June 8, 2006) (holding that petitioner’s allegations that

State violated his constitutional rights under Brady are appropriately addressed in a

petition for writ of error coram nobis). At least one federal court, based on Freshwater,

interpreted Tennessee law as permitting a constitutional violation under Brady to be

unless the nondisclosure was so serious that there is a reasonable probability that the

suppressed evidence would have produced a different verdict. There are three

components of a true Brady violation: The evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is impeaching; that evidence must

have been suppressed by the State, either willfully or inadvertently; and prejudice must

have ensued.”

Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

- 13 -

considered a ground for relief in a petition for a writ of error coram nobis. Eakes v.

Sexton, 592 Fed. Appx. 422, 430 (6th Cir. 2014).

A few Court of Criminal Appeals opinions have referred to the distinctions

between a Brady claim and a claim for coram nobis relief based on newly discovered

evidence previously withheld by prosecutors. See Schreane v. State, No. E2012-01202-

CCA-R3-PC, 2013 WL 173193, *7 (Tenn. Crim. App. Jan. 16, 2013), perm. app. denied

(Tenn. May 7, 2013) (using more limited language: “Brady claims can, in rare cases, be

considered ‘newly discovered evidence’ in a petition for a writ of error coram nobis”). In

Bonds v. State, the Court of Criminal Appeals tried to reconcile Kinnaird II, which held

that the writ is not designed to address Brady violations, with Freshwater, which held

that Brady violations can be a basis for relief in a petition for writ of error coram nobis.

Bonds v. State, No. W2006-00343-CCA-R3-CO, 2006 WL 3516225, *4 (Tenn. Crim.

App. Dec. 6, 2006), perm. app. denied (Tenn. Apr. 16, 2007). Bonds attempted to

explain: “[E]xcept in rare cases, ‘matters appropriate for post-conviction relief-such as

Brady violations-are not appropriate for coram nobis proceedings.’ [citing Kinnaird II,

2001 WL 881371] . . . However, in order for the Brady violations to be appropriate issues

in this context, the petitioner must show that the claims could not have been previously

litigated. [citing Freshwater, 160 S.W.3d at 555-56].” Id.

At least two decisions by the Court of Criminal Appeals recognized the differing

standards for a Brady claim versus a claim for coram nobis relief based on newly

discovered evidence improperly withheld from the defense. See Berry v. State, No.

M2015-00052-CCA-R3-ECN, 2016 WL 1161216, at *14 (Tenn. Crim. App. Mar. 23,

2016), perm. app. denied (Tenn. Aug. 18, 2016) (evaluated coram nobis claim separately

from Brady claim with respect to the same evidence); Baker v. State, No. M2015-02152-

CCA-R3-PC, 2017 WL 283477, at *7, *13 (Tenn. Crim. App. Jan. 23, 2017) (finding

petitioner abandoned his coram nobis claim by framing the issue of the undisclosed

police report as a constitutional Brady violation without citing standard applicable to writ

of error coram nobis). Indeed, on remand from this Court’s decision in Workman, the

Court of Criminal Appeals also recognized these differing standards. See State v.

Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002) (holding that the lesser “may

have resulted in a different judgment” standard applies to claims under a writ of error

coram nobis rather than the “would have” standard under Brady).

Therefore, it appears that Freshwater’s inadvertent conflation of a constitutional

Brady claim with a statutory coram nobis claim has spawned some confusion. We will

endeavor to clarify.

- 14 -

A. Error Coram Nobis Distinguished from Brady Claims

First we describe the elements required for a writ of error coram nobis. In

Tennessee, because the writ has been codified, the standards are gleaned from the statutes

and the cases interpreting those statutes. This Court has characterized the writ of error

coram nobis as “an extraordinary procedural remedy.” Mixon, 983 S.W.2d at 672. It

may be granted only when the coram nobis petition is in writing, describes “with

particularity” the substance of the alleged newly discovered evidence, and demonstrates

that it qualifies as newly discovered evidence. Payne v. State, 493 S.W.3d 478, 484-85

(Tenn. 2016) (citing Harris, 301 S.W.3d at 152 (Koch, J., concurring)). In order to

qualify as newly discovered evidence, “the proffered evidence must be (a) evidence of

facts existing, but not yet ascertained, at the time of the original trial, (b) admissible, and

(c) credible.” Id. In addition, the coram nobis petition must show why the newly

discovered evidence “could not have been discovered in a more timely manner with the

exercise of reasonable diligence” and how the newly discovered evidence, had it been

admitted at trial, “may have resulted in a different judgment.” Id. The statute

presupposes that the newly discovered evidence would be admissible at trial. Wilson v.

State, 367 S.W.3d 229, 235 (Tenn. 2012); see also State v. Hart, 911 S.W.2d 371, 375

(Tenn. Crim. App. 1995) (rule requiring coram nobis court to find that newly discovered

evidence may have resulted in a different judgment “presupposes that the evidence . . .

would be admissible pursuant to the applicable rules of evidence . . . .”).

In considering a coram nobis petition, the trial court determines “whether the new

evidence may have led to a different result,” or in other words, “whether a reasonable

basis exists for concluding that had the evidence been presented at trial, the result of the

proceedings might have been different.” Vasques, 221 S.W.3d at 527. Moreover, “the

relief being sought via a writ of error coram nobis ‘is the setting aside of the judgment of

conviction and the granting of a new trial.’” Payne, 493 S.W.3d at 485 (quoting Harris

II, 301 S.W.3d at 150 n.8 (Koch, J., concurring)).

Next we describe the required elements to prove a Brady claim. In Brady v.

Maryland, the United States Supreme Court held “that the suppression by the prosecution

of evidence favorable to an accused upon request violates due process where the evidence

is material either to guilt or to punishment, irrespective of the good faith or bad faith of

the prosecution.” 373 U.S. at 87. The Court found that the prosecution’s suppression of

a confession in that case was a violation of the Due Process Clause of the Fourteenth

Amendment. Id. at 86. To establish a Brady violation, a petitioner must establish four

elements:

- 15 -

(1) that the defendant requested the information (unless the evidence is

obviously exculpatory, in which case the State is bound to release

the information whether requested or not);

(2) that the State suppressed the information;

(3) that the information was favorable to the accused; and

(4) that the information was material.

Johnson v. State, 38 S.W.3d 52, 56 (Tenn. 2001).

Clearly the rule announced in Brady and the writ of error coram nobis share a

similar overall purpose; both are intended to ensure a fair and reliable determination of

the petitioner’s criminal liability for the offense with which he was charged.12 Even so,

as we explain below, the two are different animals, with independent bases, distinct

standards, and differing available remedies.

As noted above, although the writ of error coram nobis originated at common law,

Tennessee codified it many years ago and thus it is now governed by statute. See Payne,

493 S.W.3d at 487 (noting that Tennessee has a statutory writ of error coram nobis and

there is no longer “a common law remedy in coram nobis”). We have recognized that

“neither the United States Constitution nor the Tennessee Constitution provides a

criminal defendant with a constitutional right to error coram nobis relief.” Frazier, 495

S.W.3d at 248. In contrast, the elements of a Brady claim arise from constitutional tenets

and have been established by caselaw, not by statute.

Comparing the elements of both types of claim, to establish a Brady claim, a post-

conviction petitioner must show that the State improperly suppressed material

information, favorable to the defense, that it was obliged to disclose. Johnson, 38 S.W.3d

at 56. A petitioner seeking a writ of error coram nobis must demonstrate that he or she

“was without fault in failing to present certain evidence at the proper time.” Tenn. Code

12

Compare Kyles v. Whitley, 514 U.S. 419, 434 (1995) (the question in a Brady claim is whether

in the absence of the evidence the defendant received “a fair trial, understood as a trial resulting in a

verdict worthy of confidence”), and Brady, 373 U.S. at 87 (the object “is not punishment of society for

misdeeds of a prosecutor but avoidance of an unfair trial to the accused”), with Payne, 493 S.W.3d at 485

(“the goal of the relief afforded under a writ of error coram nobis is a reliable determination of the

petitioner’s criminal liability for the offense with which he was charged”), and John S. Gillig, 83 Ky. L. J.

at 321 (state courts began using the writ of error coram nobis “as a means of reviewing the intrinsic

fairness of a trial in criminal proceedings”) (quoting Eli Frank, Coram Nobis 4, 8-10 (1953)) (internal

quotation marks omitted).

- 16 -

Ann. § 40-26-105(b). That can be accomplished by establishing that the evidence at issue

was improperly withheld by the prosecution, i.e., Brady evidence. However, for coram

nobis relief, the petitioner can prove his lack of fault in other ways; he need not show that

the newly discovered evidence was improperly withheld by the State, as is required to

establish a Brady violation. See Harris, 102 S.W.3d at 592-93 (“Coram nobis claims

may be based upon any ‘newly discovered evidence relating to matters litigated at the

trial’ so long as the petitioner also establishes that the petitioner was ‘without fault’ in

failing to present the evidence at the proper time.”).

As to the other elements, some of the standards are higher for a coram nobis claim

and others are higher for a Brady claim. For example, for a Brady claim, the petitioner

need not establish that the information withheld by the State was exculpatory; it is

sufficient for him to show that it would have been of significant assistance to his defense.

“[E]vidence is favorable under Brady if ‘it provides grounds for the defense to attack the

reliability, thoroughness, and good faith of the police investigation, to impeach the

credibility of the state’s witnesses, or to bolster the defense case against prosecutorial

attacks.’” Jordan v. State, 343 S.W.3d 84, 96 (Tenn. Crim. App. 2011) (quoting

Johnson, 38 S.W.3d at 57). Information favorable to the accused may consist of

“favorable information that would have enabled defense counsel to conduct further and

possibly fruitful investigation regarding the fact that someone other than the appellant

[committed the crime].” Johnson, 38 S.W.3d at 56 (quoting State v. Marshall, 845

S.W.2d 228, 233 (Tenn. Crim. App. 1992)) (internal quotation marks omitted). The

evidence need not be admissible: “[S]o long as the evidence qualifies as favorable to the

accused, the Brady duty of disclosure applies, irrespective of the admissibility of the

evidence at trial.” State v. Jackson, 444 S.W.3d 554, 593-94 (Tenn. 2014)(citing

Johnson, 38 S.W.3d at 56).

In comparison, evidence that is the subject of a petition for coram nobis relief

must meet a much higher standard. As we have noted, a coram nobis petitioner must

present evidence that would be admissible at trial, Wilson, 367 S.W.3d at 235—not just

information that would have enabled and furthered the investigation in his case. In other

words, as the State points out, “successful Brady claims [may] stand upon inadmissible

evidence that would not entitle a defendant to coram nobis relief.”

In other ways, however, the standard for a Brady claim is higher than that for a

petition for coram nobis relief. For a Brady claim, the petitioner must show that the

information was either material to guilt or relevant to punishment. Johnson, 38 S.W.3d at

55-56 (quoting State v. Ferguson, 2 S.W.3d 912, 915 (Tenn. 1999)). “Evidence is

deemed to be material when ‘there is a reasonable probability that, had the evidence been

- 17 -

disclosed to the defense, the result of the proceeding would have been different.’” Id. at

58 (quoting State v. Edgin, 902 S.W.2d 387, 390 (Tenn. 1995)) (emphasis added); see

also Strickler v. Greene, 527 U.S. 263, 280 (1999) (stating the same). “[A] reviewing

court must determine whether the defendant has shown that ‘the favorable evidence could

reasonably be taken to put the whole case in such a different light as to undermine the

confidence of the verdict.’” Id. (quoting Irick v. State, 973 S.W.2d 643, 657 (Tenn. Crim.

App. 1998)); see also Strickler, 527 U.S. at 281 (to establish a “Brady violation,” the

nondisclosure must be “so serious that there is a reasonable probability that the

suppressed evidence would have produced a different verdict”). In contrast, a petition for

a writ of error coram nobis need not show that the result of the proceeding would have

been different had the evidence been available at trial—the petition need only show that

the newly discovered evidence, had it been admitted at trial, may have resulted in a

different judgment. Vasques, 221 S.W.3d at 525-28.

Finally, various forms of relief are available to a post-conviction petitioner who

establishes a Brady violation. These may include a new trial, see Giglio v. United States,

405 U.S. 150, 154-55 (1972) (judgment of conviction reversed and new trial required

upon finding Brady violation), Jordan, 343 S.W.3d at 100 (same), or a new sentencing

hearing, see Johnson, 38 S.W.3d at 53-54.13 In contrast, the only relief contemplated in

the statutes governing error coram nobis is a new trial for the petitioner. Tenn. Code

Ann. § 40-26-105(c).

Thus, upon examination, there is a substantive difference between, on one hand,

the elements required to establish a post-conviction claim based on a constitutional Brady

violation, and on the other hand, the elements required to secure relief under the statutes

governing writs of error coram nobis.

B. Coram nobis not appropriate proceeding for Brady violations

Considering the disparate evidentiary burdens, we agree with the following

conclusion in Kinnaird II:

The writ [of error coram nobis] is not designed to address Brady violations:

hence, the statute contains no requirement that the State withheld or

13

Cf. Commonwealth v. Burke, 781 A.2d 1136, 1143 (Pa. 2001) (acknowledging trial court’s

discretion in fashioning an appropriate remedy for a Brady violation, but noting it is not unfettered); Me.

R. Crim. P. 16(e) (Maine’s state rule providing that particularly egregious violations of a prosecutor’s

disclosure obligations may call for sanctions including dismissing charges with prejudice).

- 18 -

suppressed the subsequently or newly discovered evidence. Brady

violations are constitutional violations: the appropriate remedy is therefore

a post-conviction proceeding. . . . As previously noted, matters appropriate

for post-conviction relief—such as Brady violations—are not appropriate

for coram nobis proceedings.

Kinnaird II, 2001 WL 881371, at *6.14 Therefore, we hold that an error coram nobis

proceeding is not the appropriate procedural vehicle for obtaining relief on the ground

that the defendant suffered a constitutional due process violation under Brady. The

appropriate procedural mechanism to seek relief for a Brady violation is a post-conviction

proceeding.

As we have emphasized, “in Tennessee, the availability of error coram nobis relief

is governed solely by statute,” Frazier, 495 S.W.3d at 248; consequently, relief must be

determined by reference to the statutes, see Jordan v. Baptist Three Rivers Hosp., 984

S.W.2d 593, 597 (Tenn. 1999). If the newly discovered evidence that is the subject of an

error coram nobis petition happens to also be material information favorable to the

defense that the State improperly suppressed at trial (sometimes referred to as “Brady”

evidence), the claim must be evaluated in accordance with the requirements of the coram

nobis statutes. See, e.g., Wilson, 367 S.W.3d at 236 (deciding that prosecutor’s

handwritten note reflecting mental impression in connection with prosecuting case was

protected opinion work product and not admissible, so not sufficient to support petition

for writ of error coram nobis); Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001)

(holding evidence obtained from medical examiner’s office after post-conviction

proceedings warranted remand for hearing under requirements of coram nobis statutes).

In cases in which a petitioner seeks relief via a petition for writ of error coram

nobis as well as post-conviction proceedings, both based on newly discovered evidence

improperly suppressed by prosecutors at trial, each claim for relief should be presented

and evaluated on a separate track, so to speak—the first in accordance with the coram

14

We do not necessarily embrace the entirety of the analysis in Kinnaird II. For example, the

Court of Criminal Appeals in Kinnaird II relied on the holding in State ex rel. Carlson v. State, 407

S.W.2d 165, 167 (Tenn. 1966) that “the purpose of the error coram nobis 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.’” Kinnaird II, 2001 WL 881371, at *6. In a case decided after Kinnaird II, this Court

clarified that, in coram nobis cases, the correct standard is whether the newly-discovered evidence, had it

been admitted at trial, “may have” resulted in a different judgment. State v. Vasques, 221 S.W.3d at 527-

28.

- 19 -

nobis statutes, and the second for a constitutional Brady violation under a petition for

post-conviction relief.15 See e.g., Berry, 2016 WL 1161216, at *14.

Therefore, although Nunley alleges a violation of Brady v. Maryland, he does so

only under the rubric of a petition for a writ of error coram nobis. Consequently, we will

not consider whether Nunley’s constitutional rights under Brady were violated. Instead,

we will analyze his petition by reference to the statutes and caselaw regarding writs of

error coram nobis. With this framework in mind, we go on to consider whether Nunley’s

petition should be dismissed as time-barred even though the State was not given an

opportunity to respond to the petition at the trial court level and consequently did not

assert the statute of limitations as an affirmative defense in the trial court.

III. Statute of Limitations

To briefly review, the trial court dismissed Nunley’s coram nobis petition as time-

barred. Nunley filed his petition approximately seventeen years after expiration of the

one-year limitations period, over eighteen years after his conviction. The trial court

reviewed his petition and, without asking the State to respond, concluded that it was filed

well after expiration of the limitations period and that Nunley had demonstrated no good

reason for equitable tolling of the statute of limitations. Consequently, it dismissed the

petition, and Nunley appealed.

The Court of Criminal Appeals acknowledged the trial court’s conclusion that

Nunley’s petition was time-barred but nevertheless considered the petition on its merits

because the State had not pled the statute of limitations as an affirmative defense prior to

the trial court’s dismissal of the petition. Nunley, 2017 WL 838241, at *3. It held this

even though the State was not brought into the coram nobis proceedings at the trial level.

The effect of the intermediate appellate court’s holding was that the trial court could not

dismiss the coram nobis petition as untimely unless the State affirmatively raised the

statute of limitations, and the State was likewise precluded from raising the statute of

limitations at the appellate level even though it was the State’s first opportunity to raise it.

Nunley argues that the Court of Criminal Appeals was correct on the statute of

limitations issue and that the trial court erred in dismissing his petition as untimely

15

As we have acknowledged, a coram nobis claimant may appropriately assert that prosecutors

withheld evidence (so-called “Brady” evidence) in order to explain why he was without fault in not

presenting newly-discovered evidence at trial and/or to support a request for equitable tolling of the

statute of limitations.

- 20 -

because the State did not raise the statute of limitations issue to the trial court. In

support, he cites this Court’s holding in prior decisions that, in coram nobis cases, “[t]he

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

defense.” State v. Harris, 301 S.W.3d at 144 (hereinafter Harris II) (citing State v.

Harris, 102 S.W.3d at 593 (hereinafter Harris I); Sands v. State, 903 S.W.2d 297, 299

(Tenn.1995)). If the State is permitted to argue on appeal that his petition is not timely,

Nunley claims that he is entitled to equitable tolling of the statute of limitations under

Workman, 41 S.W.3d at 101-04. He asserts he is entitled to it because the trial court

should have recognized the late date on which he claims to have become aware of the

evidence (in July 2014), or should have at least conducted a hearing to determine whether

due process required a tolling of the statute of limitations. Ultimately, Nunley seeks a

new trial on the basis of the alleged Brady violation purportedly evidenced by the

prosecutor’s memo to the file, but in the alternative, he asks us to remand the case to the

trial court for an evidentiary hearing to determine whether the State had exculpatory

DNA test results in this case. While Nunley’s counsel denied at oral argument that he is

requesting discovery, we find his request on brief that “an evidentiary hearing needs to be

conducted in order to determine whether the State possessed exculpatory DNA results in

this case,” is in effect a request for discovery.

In response, the State asks us to reject our prior holding that the State bears the

burden in coram nobis cases of raising the statute of limitations as an affirmative defense.

It asks us to hold instead that timeliness is an element that must be shown by the

petitioner on the face of his coram nobis petition. In short, the State asks us to reconsider

our holding in Sands, Harris I, and Harris II that the State must affirmatively raise the

statute of limitations at the trial court level or else be barred from raising it.16 The State

contends that the trial court acted within its discretion to hold that Nunley’s request for

coram nobis relief was time-barred. It maintains that Nunley has made no showing as to

why the petition, filed many years after the judgment of conviction was entered, should

be deemed timely under the doctrine of equitable tolling.

Regarding the request in Nunley’s petition for an evidentiary hearing on a possible

Brady violation, we reiterate that a coram nobis proceeding is not the appropriate venue

to determine whether Nunley’s constitutional rights under Brady were violated.

Therefore, in evaluating the issues pertaining to the timeliness of Nunley’s petition, we

16

This Court has held that the State did not waive the statute of limitations as a defense in a case

in which the coram nobis petitioner “raised the issue of the statute of limitations by requesting that it be

tolled on due process grounds.” Wilson v. State, 367 S.W.3d 229, 234 (Tenn. 2012). Those facts are not

present in the instant case.

- 21 -

focus on the statutes and caselaw governing writs of error coram nobis. Specifically,

while the late discovery of supposed new evidence purportedly withheld by prosecutors

may factor into an analysis of equitable tolling, we evaluate the issue based on the coram

nobis statutes and the caselaw interpreting them, not under the standards for finding a

Brady violation.

As referenced by both parties, this Court has stated on more than one occasion that

the State bears the burden of affirmatively raising the statute of limitations as a defense to

a petition seeking coram nobis relief. The issue first arose in Sands, in which the

defendant filed a pro se petition for post-conviction relief and for a writ of error coram

nobis. Sands, 903 S.W.2d at 298. There the State filed a response in the trial court in

which it asserted, among other things, that the petition was time-barred. In doing so, it

cited the statute on post-conviction relief that included the statute of limitations

applicable to such claims, Tenn. Code Ann. § 40-30-102, but it did not cite the statute of

limitations applicable to coram nobis claims, Tenn. Code Ann. § 27-7-103. Id. at 299.

The Court of Criminal Appeals affirmed the trial court’s dismissal of both claims; it held

the coram nobis petition was time-barred, and the petitioner appealed. Id. at 299.

On appeal in Sands, the petitioner admitted that his coram nobis petition was filed

more than one year after the judgment of conviction became final, but argued that, under

Rule 8.03 of the Tennessee Rules of Civil Procedure, the statute of limitations is an

affirmative defense that must be specifically pled or it is deemed waived. Because the

State failed to specifically plead the statute of limitations applicable to coram nobis

actions, he contended, it was precluded from arguing that his coram nobis petition was

time-barred. Id. at 299.

There is no indication in the Sands opinion that the State contested the petitioner’s

assertion that his coram nobis petition was governed by Tenn. R. Civ. P. 8.03. Instead,

the State argued that, regardless of Rule 8.03, its invocation of the post-conviction statute

of limitations gave the petitioner adequate notice that the State intended to assert that his

entire petition was time-barred. Id. Under that theory, the State maintained, the statute

of limitations defense was not waived. Id.

The Sands Court agreed with the State’s argument and stated: Although

Tenn. R. Civ. P. 8.03 does require that a statute of limitations defense be

specifically pleaded, it is well settled that failure to do so does not result in

a waiver of the defense if the opposing party is given fair notice of the

defense and an opportunity to rebut it.

- 22 -

Id. (emphasis added). In support, it cited several civil cases, none of which involved a

writ of coram nobis. Id. (citing Travelers Ins. Co. v. Austin, 521 S.W.2d 783, 785-86

(Tenn. 1975); Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439, 1445 (6th Cir.

1993); McKinnie v. Lundell Mfg. Co., 825 F.Supp. 834, 836 (W.D. Tenn. 1993)). Thus,

the Court in Sands accepted without explicit analysis the premise of the petitioner’s

argument, namely, that Tenn. R. Civ. P 8.03 applies to error coram nobis claims. Id.

Under the facts of that case, it held that the timeliness defense was not waived because

the State’s recitation of the post-conviction statute of limitations provided the petitioner

with adequate notice of the timeliness defense. Id.

The applicability of Rule 8.03 in coram nobis cases arose again in Harris I, in

which the defendant’s motion to re-open his post-conviction petition was denied by the

trial court. Harris I, 102 S.W.3d at 589. The Court of Criminal Appeals sua sponte

treated the motion as a petition for writ of error coram nobis and held that due process

precluded application of the one-year coram nobis statute of limitations. Id. at 590. On

appeal, this Court looked at “whether the Court of Criminal Appeals erred in sua sponte

treating the petitioner’s motion to reopen as a petition for writ of error coram nobis.” Id.

at 591. In the course of analyzing that issue, the Court compared a motion to re-open

with a petition for a writ of error coram nobis, ultimately concluding that the two are

“fundamentally distinct.” Id. at 591-92. In doing so, the Harris I Court said: “Unlike

motions to reopen, coram nobis claims are not easily resolved on the face of the petition

and often require a hearing. The coram nobis statute also does not contain provisions for

summary disposition or expedited appeals.” Id. at 593. Citing Sands, it stated:

“Although coram nobis claims also are governed by a one-year statute of limitations, the

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

defense.” Id. (footnote omitted) (citing Sands, 903 S.W.2d at 299). On that basis, the

Court concluded that the Court of Criminal Appeals had erred in sua sponte treating the

motion to reopen as a petition for writ of error coram nobis. Id. at 594.

In Harris II, the same defendant Harris filed a petition for a writ of coram nobis,

asserting newly discovered exculpatory evidence. Harris II, 301 S.W.3d at 143. As

observed by the majority of the Harris II Court, in response to the petition, “the State

appropriately raised the statute of limitations in the trial court.” Id. at 144 (citing Sands,

903 S.W.2d at 299). The trial court summarily dismissed the petition, in part on the basis

that it was time-barred. Id. The Court of Criminal Appeals reversed and remanded for

consideration of whether due process required tolling of the statute of limitations. On

further appeal to the Supreme Court, the majority of the Harris II Court noted, “When a

petitioner seeks a writ of error coram nobis based on newly discovered evidence of actual

innocence, due process considerations may require tolling of the statute of limitations.”

- 23 -

Id. at 145 (citing Workman, 41 S.W.3d at 101). It ultimately concluded that the petitioner

was “not entitled to due process tolling.” Id. at 147.

Important to the instant case, Justice William Koch filed a separate opinion in

Harris II, concurring in part and concurring in the result.17 In the separate opinion,

Justice Koch stated that he “would affirm the trial court’s denial of coram nobis relief on

both claims because of fatal substantive deficiencies in Mr. Harris’s petition for coram

nobis relief.” Id. at 148 (Koch, J., concurring).

At the outset, the concurring opinion in Harris II observed that, in Tennessee, a

trial court’s decision on whether to grant a writ of error coram nobis is reviewed for an

abuse of discretion, a review standard that “calls for less intense appellate review.” Id.

(citing Vasques, 221 S.W.3d at 527-28 on standard of review, and Beard v. Bd. of Prof’l

Responsibility, 288 S.W.3d 838, 860 (Tenn. 2009) on intensity of appellate review). The

concurring opinion took the position that the allegations in a petition seeking coram nobis

relief must be specific in order to avoid dismissal on the face of the petition. Id. at 150.

It outlined what must be in the petition to meet the required level of specificity:

The motion or petition must be in writing and (1) must describe with

particularity the nature and substance of the newly discovered evidence and

(2) must demonstrate that this evidence qualifies as “newly discovered

evidence.” In order to be considered “newly discovered evidence,” the

proffered evidence must be (a) evidence of facts existing, but not yet

ascertained, at the time of the original trial, (b) admissible, and (c) credible.

In addition to describing the form and substance of the evidence and

demonstrating that it qualifies as “newly discovered evidence,” the prisoner

must also demonstrate with particularity (3) why the newly discovered

evidence could not have been discovered in a more timely manner with the

exercise of reasonable diligence; and (4) how the newly discovered

evidence, had it been admitted at trial, may have resulted in a different

judgment.

Id. at 152 (footnotes and citations omitted) (quoted with approval in Payne, 493 S.W.3d

at 485). The affidavits supporting the petition, the Harris II concurring opinion stated,

“must set forth with particularity” facts showing that the petitioner and his trial counsel

“exercised reasonable diligence and were not negligent” in searching for evidence prior

to trial, and that the petitioner and his trial counsel “had no pretrial knowledge of the

17

Justice Cornelia Clark concurred in Justice Koch’s separate concurrence.

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allegedly newly discovered evidence.” Id. (citing Jones v. State, 452 S.W.2d 365, 367

(Tenn. Crim. App. 1970)).

Discussing how the statute of limitations informs the coram nobis requirement of

showing lack of negligence, the concurring opinion in Harris II stated:

A petition for writ of error coram nobis must be filed within one year after

the challenged judgment becomes final. Tenn.Code Ann. § 27–7–103. It is

subject to being summarily dismissed if it does not show on its face that it

has been timely filed. Accordingly, unlike other proceedings governed by

the Tennessee Rules of Civil Procedure in which failure to comply with the

statute of limitations must be raised as an affirmative defense, compliance

with the timely filing requirement in Tenn.Code Ann. § 27–7–103 is an

essential element of a coram nobis claim.

Id. at 153 (emphases added) (internal citations and footnote omitted) (citing Joseph

Higgins & Arthur Crownover, Tennessee Procedure in Law Cases § 1765, at 702 (1937),

and William H. Inman, Gibson’s Suits in Chancery § 665, at 704, § 668, at 709 (6th ed.

1982)). In a footnote to this passage, Justice Koch explained:

Tenn. R. Civ. P. 8.03 states that the statute of limitations is an affirmative

defense which must be raised by the defendant. Writs of error coram nobis

filed pursuant to Tenn. Code Ann. § 40-26-105 are not governed by the

Tennessee Rules of Civil Procedure but rather by Tenn. Code Ann. §§ 27-

7-101 through–108. Tenn. Code Ann. § 27-7-101 states explicitly that the

Tennessee Rules of Civil Procedure do not apply to these writs.

Accordingly, I would no longer adhere to our characterization of the statute

of limitations as an affirmative defense in Harris v. State, 102 S.W.3d at

593; Sands v. State, 903 S.W.2d 297, 299 (Tenn.1995).

Id. at 153 n.17. The concurrence acknowledged that Workman applied the doctrine of

equitable tolling to a petition for a writ of error coram nobis. Id. at 153 (citing Workman,

41 S.W.3d at 101-04). Combining the availability of this equitable doctrine with the

requirement of pleading with specificity, the concurrence took the position that the coram

nobis petition must show on its face that (1) the ground on which the petitioner seeks

relief arose after the time when the statute of limitations normally would have started to

run; (2) strict application of the statute of limitations would effectively deny him a

reasonable opportunity to present his claim; and (3) the petitioner was deprived of a

constitutional right during the conviction process related to the ground for relief asserted

- 25 -

in the petition.18 Id. Applying this standard, the concurring opinion reviewed the petition

at length and concluded that “the substantive deficiencies” in the petition provided the

trial court with “ample grounds” to deny the petition “without a hearing.” Id. at 162.

In sum, in Harris I, the Court’s analysis indicated that coram nobis claims are

usually not subject to summary disposition and often require a hearing. Harris I, 102

S.W.3d at 593. Sands and Harris I both held that the statute of limitations in an error

coram nobis case is an affirmative defense subject to waiver if the State fails to

affirmatively plead it. Id. at 593; Sands, 903 S.W.2d at 299. The premise of this holding

in both cases is the Sands assumption that Rule 8.03 of the Tennessee Rules of Civil

Procedure applies to a petition for a writ of error coram nobis.

In contrast, after expressly examining these issues in his concurring opinion in

Harris II, Justice Koch reached several contrary conclusions: (1) petitions for a writ of

error coram nobis must contain specific allegations and are susceptible to summary

dismissal on the face of the petition, without discovery or an evidentiary hearing, if they

do not; Harris II, 301 S.W.3d at 150, 154; (2) Tenn. R. Civ. P 8.03 does not apply to a

petition for writ of error coram nobis; id. at 153 n.17; (3) timeliness under the coram

nobis statute of limitations is an “essential element” that must appear on the face of the

petition; id. at 153; and (4) if the petitioner seeks equitable tolling of the statute of

limitations, the facts supporting the request must likewise appear on the face of the

petition; id. at 153. In this appeal, the State in essence asks us to adopt the ruling

outlined in the concurring opinion in Harris II. We consider it below.

Resolution of these issues requires us to interpret the statutes governing the writ of

error coram nobis, Tenn. Code Ann. § 40-26-105, and the accompanying procedural

statutes, Tenn. Code Ann. §§ 27-7-101 through -108. “Statutes that relate to the same

subject matter or have a common purpose must be read in pari materia so as to give the

intended effect to both.” In re Kaliyah S., 455 S.W.3d 533, 552 (Tenn. 2015). “[T]he

construction of one such statute, if doubtful, may be aided by considering the words and

legislative intent indicated by the language of another statute.” Id. (quoting Wilson v.

Johnson Cnty., 879 S.W.2d 807, 809 (Tenn. 1994)). “We seek to adopt the most

‘reasonable construction which avoids statutory conflict and provides for harmonious

operation of the laws.’” Id. (quoting Carver v. Citizen Utils. Co., 954 S.W.2d 34, 35

(Tenn. 1997)).

18

This prong of the Harris II concurrence is addressed infra at footnote 22.

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A. Dismissal on face of petition

First we consider whether a petition for a writ of coram nobis is susceptible to

dismissal on the face of the petition, without discovery or an evidentiary hearing. Nunley

argues in this appeal that the trial court erred in dismissing his request for coram nobis

relief based on the bare allegations in the petition. Consistent with Harris I, 102 S.W.3d

at 593, he asserts that, before his petition can be dismissed, he should be given an

evidentiary hearing on whether a Brady violation occurred in his case and to determine

whether the State possessed exculpatory DNA results, which essentially amounts to a

request for discovery.

Contrary to Nunley’s suggestion and the implication in dicta in Harris I, in

Tennessee, a petition for a writ of error coram nobis has long been subject to dismissal on

the face of the petition, without discovery or an evidentiary hearing, and even prior to

notification to the opposing party. The treatise Joseph Higgins & Arthur Crownover,

Tennessee Procedure in Law Cases (1937) (hereinafter “Higgins & Crownover”)

explained that a judge who received a petition for a writ of error coram nobis was

authorized to make an initial determination based on the face of the petition, without

notice to the opposing party: “Upon presentation of the petition the judge examines the

same, and if the petition be in his judgment sufficient, he will direct the filing of the

petition” and endorse his fiat19 upon the writ. Id. at § 1768-69, at 702 (emphasis added).

Only then was the opposing party notified of the coram nobis petition and the award of

the writ. Id. at § 1769, at 702. If the judge deemed the petition insufficient on its face, he

was expected to simply dismiss it. See Sam Gilreath & Bobby R. Aderholt, Caruthers’

History of a Lawsuit § 401, at 453 (8th ed.1963) (“It is to be presumed that the petitioner

has made out the best case he has against the judgment complained of; and if that is not

sufficient, the proceedings should go no further.”). See, e.g., U.S. F. & G. Co. v. Reese,

301 S.W.2d 535, 536 (Tenn. 1957) (dismissing request for coram nobis relief based on

insufficient allegations in petition); Gallena v. Sudheimer, 56 Tenn. 189, 190 (1872)

(affirming dismissal based on insufficiency of allegations in petition); Elliott v. R.C.

McNairy & Co., 60 Tenn. 342, 346 (1872) (petition subject to dismissal if its averments

are insufficient or on its face contrary to law).

Thus, as observed by the concurring opinion in Harris II, “at no point during the

evolution of the writ of error coram nobis in Tennessee have the appellate courts held

that trial courts cannot dismiss a petition for writ of error coram nobis without first

19

Fiat: “A court decree, esp. one relating to a routine matter such as scheduling.” Fiat, Black's

Law Dictionary (10th ed. 2014).

- 27 -

holding an evidentiary hearing.” Harris II, 301 S.W.3d at 153. Clearly, then, a petition

for a writ of error coram nobis is subject to dismissal on the face of the petition. This

holding correlates with the “less intense” abuse-of-discretion standard of appellate review

for a trial court’s decision on whether to grant a writ of error coram nobis. Id. at 148

(citing Vasques, 221 S.W.3d at 527-28 (abuse of discretion as standard of appellate

review for coram nobis cases) and Beard, 288 S.W.3d at 860 (Tenn. 2009) (abuse of

discretion as less intense standard of appellate review)).

Of course, as noted in Harris I, there will be instances in which the request for

coram nobis relief cannot be resolved based only on the face of the petition. Harris I,

102 S.W.3d at 593. However, “trial courts need only conduct evidentiary hearings when

they are essential.” Harris II, 301 S.W.3d at 154 (Koch, J. concurring) (citing Larry W.

Yackle, Postconviction Remedies § 1:10 (2009)). Overall, we agree with Justice Koch’s

admonition in the concurring opinion in Harris II:

The sufficiency of the contents of a petition for writ of error coram nobis

filed pursuant to Tenn. Code Ann. § 40-26-105 is of utmost importance.

Judges anticipate that the petition itself embodies the best case the

petitioner has for relief from the challenged judgment. Thus, the fate of the

petitioner’s case rests on the ability of the petition to demonstrate that the

petitioner is entitled to the extraordinary relief that the writ provides.

Id. at 150 (internal citation omitted).

B. Tenn. R. Civ. P. 8.03

Next we consider whether Tenn. R. Civ. P. 8.03 is applicable to a petition for writ

of error coram nobis. As we have noted, in civil cases, the writ was superseded by Rule

60 of the Tennessee Rules of Civil Procedure, which became effective in 1971. Mixon,

983 S.W.2d at 668; see also Harris I, 102 S.W.3d at 592 n.7. However, “the adoption of

Rule 60 did not diminish or supersede the statute which extended the writ as an available

remedy in criminal proceedings.” Id.

In 1978, several years after adoption of the Rules of Civil Procedure, Section 40-

26-105 was broadened to permit the writ to be used to challenge a criminal conviction

based on newly discovered evidence. Wlodarz, 361 S.W.3d at 508 (Koch, J., concurring

in result only). Section 40-26-105 says, in criminal cases, the writ of error coram nobis is

“to be governed by the same rules and procedure applicable to the writ of error coram

nobis in civil cases . . . .” Tenn. Code Ann. § 40-26-105(a). “The anomalous result is

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that the writ of error coram nobis continues to be an available remedy in criminal actions,

but the procedure governing the remedy is based upon the civil writ of error coram nobis

which has been abolished. . . .” Mixon, 983 S.W.2d at 668. Thus, under section 40-26-

105(a), the civil statutory procedures in sections 27-7-101 through -108 govern the

criminal writ of error coram nobis.

In light of this, we cannot agree with the Sands holding that criminal error coram

nobis claims are also governed by the Tennessee Rules of Civil Procedure. Sands, 903

S.W.2d at 299. Section 27-7-101 provides: “Any person aggrieved by the judgment of

any court in a civil case which is not governed by the Tennessee Rules of Civil Procedure

by reason of a material error in fact may reverse the judgment upon writ of error coram

nobis as provided in this chapter.” Tenn. Code Ann. § 27-7-101 (emphasis added). As

we have observed, Section 40-26-105(a) says that criminal writs of error coram nobis are

“governed by the same rules and procedure applicable to the writ of error coram nobis in

civil cases. . . .” Tenn. Code Ann. § 40-26-105(a) (emphasis added). Thus, Section 27-7-

101 says that error coram nobis claims are permissible only in cases not governed by the

Rules of Civil Procedure. The assertion in Sands—that criminal coram nobis claims are

governed by Tenn. R. Civ. P. 8.03—cannot be so, because if the Tennessee Rules of Civil

Procedure apply, the writ of error coram nobis will not lie. “We must presume that the

General Assembly ‘did not intend an absurdity and adopt, if possible, a reasonable

construction which provides for a harmonious operation of the laws.’” Dellinger v. State,

279 S.W.3d 282, 291 (Tenn. 2009) (quoting Fletcher v. State, 951 S.W.2d 378, 382

(Tenn. 1997)). See also Mixon, 983 S.W.2d at 668 (“[T]he adoption of Rule 60 did not

diminish or supersede the statute which extended the writ as an available remedy in

criminal proceedings.”).

We can only conclude, then, that criminal error coram nobis claims are not

governed by the Tennessee Rules of Civil Procedure. We agree with the statement in the

concurring opinion in Harris II that “[w]rits of error coram nobis filed pursuant to Tenn.

Code Ann. § 40-26-105 are not governed by the Tennessee Rules of Civil Procedure but

rather by Tenn. Code Ann. §§ 27-7-101 through -108.” Harris II, 301 S.W.3d at 153,

n.17 (Koch, J., concurring).

C. Timeliness as essential element in petition

Next we consider whether timeliness under the statute of limitations is an

“essential element” of a coram nobis claim that must appear on the face of the petition.

Id. at 153. Authorities discussing the writ prior to adoption of the Tennessee Rules of

Civil Procedure emphasize that a petition for coram nobis relief must be filed within the

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one-year period after the judgment at issue. Higgins & Crownover observed that the writ

of error coram nobis “is available within one year from the rendition of the judgment;

and this limitation is strictly observed.” Higgins & Crownover, at § 1767, at 701; see

also William H. Inman, Gibson’s Suits in Chancery § 665, at 704 (6th ed.1982)

(hereinafter “Inman”) (petition for writ of error coram nobis must be “filed within one

year from the rendition of the decree complained of”). Expounding on Tennessee

practice when the writ was available in civil cases, the Higgins & Crownover treatise

equates the failure to show timeliness on the face of the petition with failure to state a

claim upon which relief can be granted:

[T]he proceeding owes its validity to the petition alone. If the allegations

are insufficient, such as, that it was filed too late, or shows culpable

negligence, or fails to show an error that is correctible by this writ, the

petition should be dismissed for the reason that in all such cases there is a

failure to set forth a cause of action.

Higgins & Crownover, § 1771, at 702 (emphases added).20 This indicates that timeliness

was considered an element of a coram nobis claim.

There is no reason to think this changed after the legislature made the writ

available in criminal cases. See Tenn. Code Ann. § 40-26-105(a). The same procedural

statutes apply, and Tennessee retained the one-year statute of limitations for coram nobis

claims. Tenn. Code Ann. § 27-7-103.

Because the holding in Sands, that the statute of limitations is an affirmative

defense, was based on the erroneous assumption that Tenn. R. Civ. P. 8.03 applies in

coram nobis cases, that holding will not stand. See Sands, 903 S.W.2d at 299.

Moreover, if a coram nobis petition may be dismissed as untimely based on the trial

judge’s initial review of the petition, prior to notice being given to the State, it stands to

reason that the statute of limitations is not a defense that must be affirmatively pled by

the State.21 Were it otherwise, we would retain the anomalous situation presented under

20

If the petition for writ of error coram nobis was not dismissed prior to notice to the opposing

party, it remained subject to dismissal as untimely upon motion: “If the petition . . . is not filed within one

year since the decree became final, it may be dismissed on motion.” Inman, §668, at 709.

21

We acknowledge that, in holding that the trial court erred in dismissing Nunley’s petition as

untimely because the statute of limitations is an affirmative defense that must be pled by the State at the

trial court level, the Court of Criminal Appeals followed our previous guidance in Harris I, 102 S.W.3d at

593, and Sands, 903 S.W.2d at 299.

- 30 -

the facts of this case, where the effect of the Court of Criminal Appeals’ holding is to

preclude the State from asserting the statute of limitations at the appellate level in a

coram nobis case even though the State had no opportunity to raise it at the trial court

level.

Thus, we agree with the concurring opinion in Harris II that a petition for a writ of

error coram nobis “is subject to being summarily dismissed if it does not show on its face

that it has been timely filed” and that “compliance with the timely filing requirement in

Tenn. Code Ann. § 27-7-103 is an essential element of a coram nobis claim.” Harris II,

301 S.W.3d at 153 (Koch, J., concurring) (citing Higgins & Crownover, § 1765, at 702;

and Inman, § 665, at 704, § 668, at 709). Accordingly, we hold that the statute of

limitations set forth in Section 27-7-103 is not an affirmative defense that must be

specifically raised by the State in error coram nobis cases; instead, the coram nobis

petition must show on its face that it is timely filed. We overrule our prior cases to the

extent that they hold otherwise, including, but not limited to, Wilson, 367 S.W.3d at 234;

Harris II, 301 S.W.3d at 144; Harris I, 102 S.W.3d at 593; Sands, 903 S.W.2d at 299.

This holding is consistent with Tennessee’s “longstanding rule that persons seeking relief

under the writ must exercise due diligence in presenting the claim.” Mixon, 983 S.W.2d

at 670.

D. Facts on equitable tolling in petition

Finally we consider whether, if a coram nobis petitioner seeks equitable tolling of

the statute of limitations, facts supporting the tolling request must also appear on the face

of the petition. As we have noted, in Tennessee, the statute of limitations in coram nobis

cases has historically been “strictly observed.” Higgins & Crownover, § 1767, at 701.

However, in the context of criminal cases, this Court has held that, “before a state may

terminate a claim for failure to comply with procedural requirements such as statutes of

limitations, due process requires that potential litigants be provided an opportunity for the

presentation of claims at a meaningful time and in a meaningful manner.” Burford, 845

S.W.2d at 208; see also Workman, 41 S.W.3d at 102 (applying the holding in Burford, a

post-conviction proceeding, to error coram nobis proceedings). To accommodate due

process concerns, the one-year statute of limitations may be tolled if a petition for a writ

of error coram nobis seeks relief based upon new evidence of actual innocence

discovered after expiration of the limitations period. Wilson, 367 S.W.3d at 234 (citing

Harris II, 301 S.W.3d at 145, and Workman, 41 S.W.3d at 101).

In keeping with the extraordinary nature of the writ, Payne, 493 S.W.3d at 484,

the petition must be pled with specificity. Harris II, 301 S.W.3d at 150 (Koch, J.,

- 31 -

concurring). If the coram nobis petition does not show on its face that it is filed within

the one-year statute of limitations, the petition must set forth with particularity facts

demonstrating that the prisoner is entitled to equitable tolling of the statute of limitations:

To be entitled to equitable tolling, a prisoner must demonstrate with

particularity in the petition: (1) that the ground or grounds upon which the

prisoner is seeking relief are “later arising” grounds, that is grounds that

arose after the point in time when the applicable statute of limitations

normally would have started to run; [and] (2) that, based on the facts of the

case, the strict application of the statute of limitations would effectively

deny the prisoner a reasonable opportunity to present his or her claims. . . .

A prisoner is not entitled to equitable tolling to pursue a patently non-

meritorious ground for relief.

Id. at 153 (footnotes omitted) (citing Sample v. State, 82 S.W.3d 267, 272 (Tenn. 2002);

Sands, 903 S.W.2d at 301; Burford, 845 S.W.2d at 205).22 If a petition for a writ of error

coram nobis fails to show on its face either that it has been timely filed in accordance

with Tennessee Code section 27-7-103 or specific facts showing why the petitioner is

entitled to equitable tolling of the statute of limitations, the trial court is within its

discretion to summarily dismiss it. Id. There is no requirement that trial courts hold an

evidentiary hearing prior to dismissing a coram nobis petition if the petition “fails to meet

the necessary prerequisites for granting coram nobis relief.” Id. (citing Cole v. State, 589

S.W.2d 941, 941-43 (Tenn. Crim. App. 1979), and Yackle, § 1:10). “If the averments in

the petition are insufficient to warrant relief, the petition may be dismissed” prior to any

response from the state and without a hearing. Id. (citing Elliott v. R.C. McNairy & Co.,

60 Tenn. 342, 346-47 (1872)); see also 39 Am. Jur. 2d Habeas Corpus § 228 Coram

Nobis Practice and Procedure (2008) (trial court has no duty to try the issues raised in a

coram nobis petition unless “the verified petition on its face shows sufficient grounds for

the issuance of the writ and the necessity for a hearing thereon”).

22

As noted above, the Harris II concurrence also states that a prisoner seeking equitable tolling of

the statute of limitations must demonstrate “(3) that the prisoner was deprived of a constitutional right

during the conviction process with regard to the ground for relief now being pursued.” Harris II, 301

S.W.3d at 153 (Koch, J., concurring). We respectfully disagree with this assertion in the Harris II

concurrence. As discussed above in connection with Nunley’s Brady claim, the writ of error coram nobis

is not a procedure for remedying deprivations of constitutional rights; such claims are cognizable in post-

conviction proceedings.

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E. Application of standard to Nunley’s petition

Under this standard, we examine Nunley’s petition. As summarized above,

Nunley’s petition, filed on May 31, 2016, states that his jury trial took place from

February 9-12, 1998, and contains the conclusory assertion that it was “timely file[d],”

without reference to the one-year statute of limitations.23

The petition describes the purported “new evidence” in detail and claims inter alia

that the State violated Nunley’s constitutional rights under Brady v. Maryland. Pertinent

to equitable tolling, the petition states only that the purported new evidence was provided

by the State on July 7, 2014, in response to another post-conviction petition Nunley filed.

It does not refer to the roughly eighteen-year gap between Nunley’s conviction and his

petition for coram nobis relief, nor does it explain why Nunley waited nearly two years

after the State’s July 7, 2014 pleading to file his petition.24 In short, although the coram

nobis petition was filed eighteen years after the conviction, it does not explain why

Nunley would be entitled to tolling of the one-year statute of limitations.

The doctrine of equitable tolling requires the court to consider “the governmental

interests involved and the private interests affected by the official action.” Workman, 41

S.W.3d at 103. Those competing interests are weighed to determine whether due process

requires tolling of the statutory limitations period, in light of the fact that “due process

requires that potential litigants be provided an opportunity for the presentation of claims

at a meaningful time and in a meaningful manner.” Burford, 845 S.W.2d at 208. Based

on the facts of the particular case, the coram nobis petition must be filed within a time

period that “does not exceed the reasonable opportunity afforded by due process.” See

Sample, 82 S.W.3d at 276; Workman, 41 S.W.3d at 103. See also Workman, 41 S.W.3d

at 105-06 (Anderson, Riley, J., dissenting) (noting that, even if statute of limitations was

tolled during time in which petitioner was unaware of the new evidence, “the record in

this case shows that more than one year, the time provided by the statute of limitations,

23

The petition does not contain the date of Nunley’s judgment of conviction, which is the date the

limitations period begins to run on a coram nobis claim, assuming no post-conviction motions were filed

impacting the finality of the judgment of conviction. Tenn. Code Ann. § 27-7-103. See Mixon, 983

S.W.2d at 670.

24

In his brief to this Court, Nunley recognizes that his “pro se petition never acknowledges the

one-year statute of limitations and never mentions due process tolling.” The statement in Nunley’s brief

was made to support his argument that he was not on notice of the statute of limitations because the State

did not raise it as an affirmative defense.

- 33 -

has passed since he first became aware of the evidence,” so “due process is not

implicated”).

The trial court concluded that Nunley’s petition was not timely under the statute of

limitations applicable to coram nobis claims. “Whether a claim is barred by an applicable

statute of limitations is a question of law, which we review de novo.” Harris II, 301

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

2007)). The trial court also concluded that Nunley had not demonstrated that he was

entitled to equitable tolling of the coram nobis statute of limitations. “Whether due

process considerations require tolling of a statute of limitations is a mixed question of law

and fact, which we review de novo with no presumption of correctness.” Harris II, 301

S.W.3d at 145 (citing Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006)).

Reviewing the record and Nunley’s coram nobis petition, we find no error in the

trial court’s decision to dismiss the petition without notice to the State or an evidentiary

hearing. First, although Nunley’s petition was filed eighteen years after his conviction, it

does not acknowledge the one-year statute of limitations or explain why he is entitled to

equitable tolling of the statute of limitations. Second, we agree with the trial court that

the issues raised in Nunley’s coram nobis petition “have been raised before and

litigated,” first at trial and then in Nunley’s petitions for post-conviction relief and for

post-conviction DNA testing.25 Moreover, on its face, the prosecutor’s memo to the file

on which Nunley relies does not qualify as substantive admissible evidence that “may

have resulted in a different judgment, had it been presented at the trial.”26 Tenn. Code

Ann. § 40-26-105(b). Thus, the petition shows neither that the ground on which Nunley

seeks relief arose after the time when the statute of limitations normally would have

started to run, nor that strict application of the statute of limitations would effectively

deny him a reasonable opportunity to present his claim. Harris II, 301 S.W.3d at 153

25

The writ of error coram nobis “is not a ‘catch-all’ remedy that enables convicted persons to

‘litigate and relitigate the propriety of their convictions ad infinitum.’” Harris II, 301 S.W.3d at 148

(Koch, J., concurring) (quoting People v. Hyung Joon Kim, 202 P.3d 436, 447 (Cal. 2009)).

26

As stated above, “In order to be considered ‘newly discovered evidence,’ the proffered

evidence must be (a) evidence of facts existing, but not yet ascertained, at the time of the original trial, (b)

admissible, and (c) credible.” Payne, 493 S.W.3d at 485. A petitioner seeking coram nobis relief is

required to bring specific evidence that he did not have at trial that entitles him to such relief; factual

conclusions based on speculation and unsupported by admissible evidence are not sufficient. See 39 Am.

Jur. 2d Habeas Corpus § 221 Coram Nobis Practice and Procedure (2008) (Even for pro se petitions,

“[t]he allegations concerning prejudice to the petitioner . . . must be specific, concrete and supported by

evidence; vague, speculative, or conclusory allegations are insufficient.”).

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(Koch, J., concurring). “A prisoner is not entitled to equitable tolling to pursue a patently

non-meritorious ground for relief.” Id.

In short, to review a petition for a writ of error coram nobis for timeliness, we first

determine whether the petitioner “asserted the claim in a timely manner and, if not,

whether he has demonstrated that he is entitled to equitable tolling of the statute of

limitations as provided in Tenn.Code Ann. § 27-7-103. The inquiry ends if his petition is

not timely and if he has failed to demonstrate that he is entitled to relief from the statute

of limitations.” Id. at 155. On its face, Nunley’s petition is untimely under the one-year

statute of limitations, and it contains no specific facts showing a basis for holding that he

is entitled to equitable tolling of the statute of limitations. The trial court had ample

grounds to deny his request for coram nobis relief without a hearing, so we affirm its

decision.

This holding pretermits other arguments raised by Nunley in this appeal.

CONCLUSION

In sum, we initially clarify that an error coram nobis proceeding is not the

appropriate procedural vehicle for obtaining relief on the ground that the petitioner

suffered a constitutional due process violation under Brady v. Maryland, 373 U.S. at 87.

As to the coram nobis petition, we hold that (1) coram nobis petitions with inadequate

allegations are susceptible to summary dismissal on the face of the petition, without

discovery or an evidentiary hearing; (2) Tenn. R. Civ. P 8.03 does not apply to a petition

for a writ of error coram nobis; (3) timeliness under the statute of limitations is an

“essential element” of a coram nobis claim that must appear on the face of the petition;

and (4) if the petitioner seeks equitable tolling of the statute of limitations, the facts

supporting the tolling request must likewise appear on the face of the petition. Applying

this standard, we find no error in the trial court’s decision to dismiss Nunley’s coram

nobis petition.

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We affirm the judgment of the trial court and affirm the judgment of the Court of

Criminal Appeals on other grounds, as stated herein.

_________________________________

HOLLY KIRBY, JUSTICE

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