# Steven Skinner v. State of Tennessee

> Court of Criminal Appeals of Tennessee · March 25, 2021

URL: https://www.frixlaw.com/law-library/cases/4671707

## Case

- **Court:** Court of Criminal Appeals of Tennessee
- **Decided:** March 25, 2021
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge John Everett Williams
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

03/25/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
December 1, 2020 Session

STEVEN SKINNER v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County
Nos. 00-5699, 00-5700 James M. Lammey, Judge
___________________________________

No. W2020-00385-CCA-R3-ECN
___________________________________

The Petitioner, Steven Skinner, filed a petition for writ of error coram nobis seeking relief
from his two convictions for first degree premeditated murder and his consecutive life
sentences. The trial court dismissed the petition because it was not timely filed, not
entitled to due process tolling of the statute of limitations, and otherwise nonmeritorious.
After a thorough review of the record, we affirm the dismissal.

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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and J. ROSS DYER, JJ., joined.

Sharon Fortner, Memphis, Tennessee, for the appellant, Steven Skinner.

Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL AND PROCEDURAL HISTORY

The Petitioner seeks coram nobis relief on the basis that, in 2017, he discovered
certain documents, including statements made by witnesses in 1999, which would have
impeached the credibility of the State’s witnesses and which may have required a
witness’s testimony to be corroborated as accomplice testimony. The Petitioner asserts
that his trial counsel did not have access to these materials at trial. Because the petition
was not accompanied by affidavits to establish that the documents are newly discovered
or that the Petitioner is entitled to due process tolling, we conclude that the trial court did
not err in dismissing the petition.

The Petitioner was convicted of two counts of first degree premeditated murder
and sentenced to two consecutive life sentences for his role in orchestrating the murder of
victims Mr. Sid Towns and Mr. Omar Stokes, who were responsible for a large financial
loss to the Petitioner’s gang, the Gangster Disciples. State v. Steve Skinner (Skinner I),
No. W2003-00887-CCA-R3-CD, 2005 WL 468322, at *1 (Tenn. Crim. App. Feb. 28,
2005), perm. app. denied (Tenn. June 27, 2005). The testimony of three witnesses
present at the shooting, two of whom were acknowledged gang members and participants
in the murders, linked the Petitioner to the offenses. Id. at *2-9. The Petitioner was also
implicated through a hat left at the crime scene and the testimony of a witness who
asserted that the Petitioner had attempted to hire him to commit the murders shortly
before the crimes. Id. at *3, 6, 9-10, 13.

The murders were planned by Mr. Marcus Boyd, the highest-ranking Gangster
Disciple in Memphis, Mr. Carlos Wardlow, who was the gang’s “Governor” for south
Memphis, and the Petitioner, who was an “Assistant Governor.” Id. at *4. Witnesses
agreed that the Petitioner drove with Mr. Marcus Boyd and Mr. Wardlow to an auto body
shop owned by one victim. Id. at *3, 6, 8. Mr. Marcus Boyd and Mr. Wardlow entered
the shop with the two victims. Id. When the four emerged, Mr. Michael Brown and Mr.
Calvin Boyd, who had been charged with lying in wait for the victims, shot and killed
both victims after the Petitioner signaled them to shoot by flashing the vehicle’s lights.
Id. at *3, 6.

Mr. Wardlow testified at trial that although he initially participated in the planning
of the murders with Mr. Marcus Boyd and the Petitioner, he had succeeded in convincing
Mr. Marcus Boyd to cancel the shooting based on the suggestion that police would be
able to trace recent calls between Mr. Marcus Boyd and one of the victims. Id. at *5-6.
Mr. Wardlow testified that, as they arrived at the location chosen for the murder, he
shouted out the car window to Mr. Calvin Boyd and Mr. Brown that the killing was
canceled. Id. at *6. He testified that when he emerged from the shop, he saw lights
flashing in the vehicle occupied by the Petitioner, the victims were shot, and all involved
fled. Id.

Mr. Brown testified that he and Mr. Calvin Boyd were lying in wait and observed
the victims enter the building with Mr. Marcus Boyd and Mr. Wardlow. Id. at *3. The
Petitioner then exited his vehicle and told them to shoot the victims when he flashed the
vehicle’s lights, instructing them to disregard any contrary directions. Id. Although Mr.
Marcus Boyd, as he exited the building, made a hand signal conveying that the shooting
should not take place, Mr. Brown and Mr. Calvin Boyd killed the victims when the
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Petitioner flashed the vehicle’s lights. Id. Mr. Brown and Mr. Wardlow testified that the
Petitioner dropped his designer hat, and a designer hat was recovered from the scene. Id.
at *3, 6, 13.

Mr. Brown and Mr. Calvin Boyd were transported to and from the scene of the
shooting by Mr. Jason Coleman, whose awareness of the intended crimes was disputed.
Id. at *3, 5, 8. Mr. Coleman testified that he did not know that any crime was
contemplated when he was asked to drive the men to the auto body shop. Id. at *7, 9.
Mr. Brown stated that Mr. Coleman was woken up and told to drive the car and ask no
questions, but he also testified that Mr. Coleman was affiliated with the gang. Id. at *3.
The appellate opinion notes that “inconsistencies” regarding Mr. Coleman’s involvement
were revealed during the cross-examination of Mr. Brown. Id. Mr. Coleman confirmed
that the shooting took place and testified that he did not see any flashing lights. Id. at *9.
Mr. Randall Jackson testified that the Petitioner attempted to hire him to commit murder
at the time in question but that he refused to become involved. Id.

The Petitioner appealed his convictions, challenging his sentences and the
sufficiency of the evidence, particularly in light of his assertion that Mr. Coleman’s
testimony was accomplice testimony requiring corroboration. Id. at *1. This court
determined that Mr. Coleman’s status as an accomplice was a factual matter for the jury’s
determination, that the evidence was sufficient, and that there was no error in sentencing.
Id. at *11, 13, 14, 16.

The Petitioner filed a petition for post-conviction relief, asserting he had received
ineffective assistance from his counsel and arguing in particular that counsel “failed to
review the transcripts of his co-defendant[s’] trials for purposes of preparing for
impeachment on cross-examination.” Steven D. Skinner v. State (Skinner II), No.
W2009-00307-CCA-R3-PC, 2010 WL 4188314, at *2 (Tenn. Crim. App. Oct. 22, 2010),
perm. app. dismissed (Tenn. Feb. 8, 2011). Those involved in the crimes, including the
Petitioner, were simultaneously prosecuted for various crimes in federal court. Id. at *2,
3. The Petitioner asserted that trial counsel’s preparation was deficient because he “could
not articulate the status of the co-defendant[s’ federal] cases that were resolved in
advance of the petitioner’s case.” Id. at *4. This court noted that, on the contrary,

counsel testified that he had access to this material and reviewed all of it
prior to trial. He also had conversations with the federal prosecutor about
the case and subpoenaed him to court in case he needed his testimony. He
ultimately made a strategic decision not to use the prosecutor’s testimony
because he did not know what additional, harmful information he might
testify to in front of the jury.

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Id.

Following the denial of his post-conviction appeal and the denial of a federal
habeas corpus petition, the Petitioner made an Open Records Request (“ORR”) to the
Shelby County District Attorney’s office, and in February 2017, the Petitioner received
responsive materials. Steven Skinner v. State (Skinner III), No. W2017-01797-CCA-R3-
ECN, 2018 WL 3430339, at *1 (Tenn. Crim. App. July 16, 2018), perm. app. denied
(Tenn. July 16, 2018). On April 10, 2017, he filed a petition for writ of error coram nobis
asserting that Mr. Brown and Mr. Wardlow had given statements to federal prosecutors
stating that Mr. Marcus Boyd and not the Petitioner orchestrated the murders. Id. On
appeal, this court concluded that the petition was properly dismissed because it was filed
outside the limitations period and because the Petitioner did not establish due process
tolling. Id. at *3. In denying relief, this court observed,

According to the record, it appears that this information was made available
to trial counsel before trial because these statements were taken before trial
and were in the District Attorney’s file. During Petitioner’s post-conviction
hearing, trial counsel testified that he “had access to all the material and
reviewed all of it prior to trial.” Trial counsel also testified that he “had
conversations with the federal prosecutor about the case and subpoenaed
him to court in case he needed his testimony.” Petitioner made no
allegations that the federal prosecutor withheld these statements or that trial
counsel made a specific request for them that was ignored…. From trial
counsel’s testimony at the post-conviction hearing, it appears that
information from the federal prosecutor was available, but strategically not
used, at trial. Therefore, the evidence which Petitioner claims is “newly
discovered” was not later arising.

Id. at *2 (citations omitted). This court elaborated that the Petitioner had not
demonstrated the exercise of reasonable diligence in filing his petition because “trial
counsel was already in possession of the [federal] materials before trial.” Id. at *3.

In an effort to introduce contrary proof on the subject of whether the ORR
documents had previously been disclosed, were accessible to trial counsel, or were in the
possession of trial counsel, the Petitioner filed the instant second petition for writ of error
coram nobis on May 2, 2019. In the pro se petition, he asserted that he had found newly
discovered evidence which would have affected the outcome of his trial. The Petitioner
noted that his prior petition for writ of error coram nobis based on the ORR evidence was
dismissed and that the dismissal was affirmed on the basis that trial counsel was, at the
time of trial, already in possession of the evidence. In the 2019 petition, the Petitioner
summarized the newly discovered evidence as a telephone call with trial counsel on
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August 16, 2018, during which trial counsel allegedly informed him that trial counsel was
not in possession of the ORR documents at the time of trial, that trial counsel would have
used the documents during trial had he had access to them, and that the documents
showed that the Petitioner was innocent.

Through counsel, the Petitioner filed an “Amended and Supplemental” petition for
writ of error coram nobis. The Petitioner identified certain records which he obtained in
2017 through his Open Records Request and which he contended were exculpatory.
These records include Mr. Coleman’s testimony from Mr. Marcus Boyd’s preliminary
hearing on December 16, 1999; an affidavit of complaint charging Mr. Coleman with two
counts of first degree murder; a record of Mr. Coleman’s arrest for two counts of first
degree murder on October 6, 1999; statements made to the Federal Bureau of
Investigation (“FBI”) by Mr. Coleman; statements made to the FBI by Mr. Wardlow; an
affidavit of complaint charging Mr. Marcus Boyd with two counts of first degree murder;
and an advice of rights form and statement to the FBI made by Mr. Brown. The
Petitioner asserted that some of the ORR documents showed that the State’s failure to
prosecute Mr. Coleman was a ruse intended to defeat his accomplice status and the
corroboration requirement. The Petitioner also asserted that the failure to produce the
documents was a violation of Brady v. Maryland, 373 U.S. 83 (1963), because the
documents were exculpatory in that the witnesses made “contradictory statements.” He
further contended that the statements made to federal prosecutors were inconsistent with
trial testimony.

Neither the pro se petition nor the “Amended and Supplemental” petition was
accompanied by affidavits or other proof. The ORR documents that were the subject of
the petitions were also not appended to the petitions. The petitions likewise failed to
detail the alleged inconsistencies between witness statements and witness testimony.

The Petitioner requests this court to take judicial notice of its prior records, and the
challenged documents are part of the Petitioner’s first coram nobis petition. The
Petitioner asserts in his appellate brief that the statements of Mr. Coleman to the FBI
were internally inconsistent because Mr. Coleman initially denied any involvement with
the crime or his presence at the scene and because one statement, which focused on
events after the shooting, did not reiterate the facts from a previous statement. The
Petitioner also asserts in his brief that the statements of Mr. Coleman and Mr. Wardlow
conflicted with the testimony of other witnesses.

The State moved to dismiss the petition for error coram nobis, asserting that it was
not timely filed, that the Petitioner was not entitled to due process tolling, that the claim
was patently nonmeritorious because the issue of Mr. Coleman’s status as an accomplice
had been litigated, that the Brady issue could not properly be brought in a petition for
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error coram nobis, and that there was no basis to conclude that the evidence may have led
to a different result.1

The trial court heard argument on the motion, during which the Petitioner’s
attorney stated that trial counsel would be willing to testify in the hearing. The trial court
dismissed the petition without allowing the introduction of proof, concluding that there
was no basis for tolling the statute of limitations and that the evidence itself would not
entitle the Petitioner to error coram nobis relief. The trial court found that the current
coram nobis petition was based on the same documents as the previous coram nobis
petition and that there was nothing presented on the face of the petition which would
cause the court to come to a different conclusion in the Petitioner’s attempt to relitigate
the initial petition. The trial court noted the absence of any affidavits accompanying the
petition, and it dismissed the petition. The Petitioner appeals.

ANALYSIS

On appeal, the Petitioner asserts that the trial court erred in dismissing his petition
without a hearing and that it erred in determining that due process tolling did not apply.
We conclude that the petition was properly dismissed because it failed to include
affidavits or other documents establishing that the claim was entitled to due process
tolling. Insofar as the Petitioner asserts his due process rights under Brady have been

1
We note that in its amended response, the State also made the rather serious and
apparently groundless insinuation that trial counsel’s testimony at the post-conviction hearing
may have been “untruthful.” Regarding the federal trials of the co-defendants, trial counsel
testified at the post-conviction hearing that he “had access to all the material and reviewed all of
it prior to trial.” Skinner III, 2018 WL 3430339, at *2. The Petitioner asserted that
subsequently, in 2018, trial counsel told him in a telephone call that he did not in fact have the
statements of the co-defendants to the FBI or the other documents which are the basis of the
coram nobis action. The State wrote in its motion to dismiss that “it appears that petitioner’s trial
counsel is now asserting that his prior sworn testimony provided at the post-conviction hearing
was either inaccurate or untruthful.” (Emphasis added.) Obviously, if trial counsel failed to
discover the evidence or if the evidence was withheld as the Petitioner asserts, see, e.g., State v.
Jackson, 444 S.W.3d 554, 597 (Tenn. 2014) (prosecution’s Brady violation in Shelby county
murder trial warranted new trial); Johnson v. State, 38 S.W.3d 52, 63 (Tenn. 2001) (Shelby
county prosecutors improperly withheld exculpatory evidence at a capital sentencing hearing),
trial counsel would have been ignorant of the fact that there were materials he had not reviewed.
There is nothing in the record to support the conclusion that trial counsel knowingly gave false
testimony. Accordingly, we disapprove of Shelby County Assistant District Attorney General’s
characterization of the petition as alleging “that trial counsel essentially perjured himself during
the post-conviction proceedings.” The petition alleges nothing of the kind.
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violated, the Tennessee Supreme Court has held that a coram nobis petition is not the
proper avenue to seek relief. Nunley v. State, 552 S.W.3d 800, 820 (Tenn. 2018).

Generally, the decision to deny a petition for writ of error coram nobis is entrusted
to the trial court’s discretion. Payne v. State, 493 S.W.3d 478, 484 (Tenn. 2016). We
review de novo questions regarding whether a claim is barred by the statute of
limitations. Nunley, 552 S.W.3d at 830. We likewise review de novo mixed questions of
fact and law regarding whether a claim is entitled to due process tolling. Id.

The writ of 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.”
T.C.A. § 40-26-105(b). The writ is limited 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.” Id. Coram nobis relief is an “extraordinary remedy known more for its
denial than its approval.” State v. Mixon, 983 S.W.2d 661, 666 (Tenn. 1999). “The evil
that the coram nobis statute is aimed at remedying is a conviction based on materially
incomplete or inaccurate information.” Payne, 493 S.W.3d at 486. Coram nobis relief is
available only when a court determines that the new evidence may have led to a different
result. T.C.A. § 40-26-105(b). In other words, the court examines “‘whether a
reasonable basis exists for concluding that had the evidence been presented at trial, the
result of the proceedings might have been different.’” Nunley, 552 S.W.3d at 816
(quoting State v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007)). Generally, a petitioner
cannot premise relief on evidence “which is merely cumulative or ‘serves no other
purpose than to contradict or impeach.’” Wlodarz v. State, 361 S.W.3d 490, 499 (Tenn.
2012) (quoting State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App. 1995)), abrogated
on other grounds by Frazier v. State, 495 S.W.3d 246 (Tenn. 2016).

Relief for error coram nobis is only available “[u]pon a showing by the defendant
that the defendant was without fault in failing to present certain evidence at the proper
time.” T.C.A. § 40-26-105(b). Furthermore, the petition for the writ must be filed
“within one (1) year after the judgment becomes final.” T.C.A. § 27-7-103. The parties
do not dispute that the petition was not filed within the limitations period. However,
“[t]o 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.” Nunley, 552
S.W.3d at 828-29. Such a claim for due process tolling “must be pled with specificity.”
Id. at 829.

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“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. (quoting Harris v. State, 301 S.W.3d 141, 154 (Tenn. 2010) (Koch, J., concurring in
part and concurring in the result), majority opinion overruled by Nunley, 552 S.W.3d at
828).

A petition for error coram nobis is “subject to dismissal on the face of the petition,
without discovery or an evidentiary hearing, and even prior to notification to the
opposing party.” Nunley, 552 S.W.3d at 825. Traditionally, a trial court has been
expected to dismiss a petition which is insufficient on its face. Id. While some petitions
cannot be resolved on the face of the petition, the court need not hold a hearing unless it
determines a hearing is essential. Id. at 826. Accordingly, the contents of the written
petition are of the “‘utmost importance.’” Id. (quoting Harris, 301 S.W.3d at 154 (Koch,
J., concurring)). “‘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. (quoting Harris, 301 S.W.3d at 150
(Koch, J., concurring)).

The petition itself must set forth the facts and law which would entitle the
petitioner to relief. Harris, 301 S.W.3d at 150 (Koch, J., concurring); see Hart, 911
S.W.2d at 374-75. The petition must likewise detail how the petitioner was without fault
in failing to present the evidence and the nature of the relief sought. Harris, 301 S.W.3d
at 151 (Koch, J., concurring). The petition must also be verified under oath. Id. A
petition is subject to dismissal if it does not recite: (a) the grounds and the nature of the
newly discovered evidence; (b) why the admissibility of the newly discovered evidence
may have resulted in a different judgment if the evidence had been admitted at the
previous trial; (c) that the petitioner was without fault in failing to present the newly
discovered evidence at the appropriate time; and (d) the relief sought by the petitioner.
Hart, 911 S.W.2d 371, 374-75.

“A motion or petition seeking a new trial based on newly discovered evidence
must also be supported by affidavits.” Harris, 301 S.W.3d at 152 (Koch, J., concurring).
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The affidavits supporting the grounds for relief “should be filed in support of the petition
or at some point in time prior to the hearing.” Hart, 911 S.W.2d at 375. The affidavits
should be relevant, material, germane, and based on personal knowledge. Id. “Affidavits
of the witnesses through whom the newly discovered evidence is sought to be introduced
must explain the materiality of the evidence and must state that the evidence was not
communicated to the prisoner or his or her trial counsel prior to the original trial.”
Harris, 301 S.W.3d at 153 (Koch, J., concurring).

Here, the Petitioner never submitted affidavits to support the claims in the petition.
More particularly, there was no affidavit from the Petitioner’s trial counsel regarding
whether the ORR documents were available to him at the time of trial. Without such an
affidavit, the trial court could not have concluded that the evidence was newly
discovered, that it was later arising, that the Petitioner was without fault in timely
presenting the evidence, or that the Petitioner was entitled to due process tolling.
Accordingly, the petition was properly dismissed on this basis. See Kelvin Reed v. State,
No. W2017-02419-CCA-R3-ECN, 2018 WL 4191228, at *5 (Tenn. Crim. App. Aug. 31,
2018) (affirming dismissal when the petitioner failed to attach affidavits from individuals
with personal knowledge); Bo W. Prendergast v. State, No. M2013-02869-CCA-R3-
ECN, 2015 WL 9488423, at *8 (Tenn. Crim. App. Dec. 29, 2015) (trial court did not err
in dismissing the petition when the petitioner had failed to attach affidavits after one
year); Junior Lenro Smothers v. State, No. W2011-02684-CCA-R3-PC, 2012 WL
6475742, at *1 (Tenn. Crim. App. Dec. 13, 2012) (the alleged recantation on social media
of the testimony of Victim A (one of two victims) did not support granting the petitioner
a hearing with regard to the conviction related to Victim A when the petitioner did not
provide Victim A’s affidavit).

We further note that the Petitioner has already filed a coram nobis petition based
on the same claims, that the previous petition was fully litigated and provided him with a
meaningful opportunity to present his claims, and that he has now “merely re-package[d]
th[e] same claim in a new form.” Melissa Barnett v. State, No. E2014-02396-CCA-R3-
ECN, 2015 WL 5601537, at *3 (Tenn. Crim. App. Sept. 23, 2015). At the time he filed
his original coram nobis petition, the Petitioner could, through the exercise of diligence,
have consulted trial counsel regarding the availability of the ORR documents at trial. See
id. (denying relief to a petitioner when she had previously filed a petition for error coram
nobis on the same grounds and merely appended a newly obtained affidavit, which she
could in diligence have previously obtained, to the new petition). We conclude that the
trial court did not err in dismissing the petition.

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CONCLUSION

Based on the foregoing analysis, the dismissal of the petition is affirmed.

___________________________________________
JOHN EVERETT WILLIAMS, PRESIDING JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4671707. Public record. Not legal advice.