Robert Jason Burdick v. State of Tennessee

06/18/2021

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs February 10, 2021

ROBERT JASON BURDICK v. STATE OF TENNESSEE

Appeal from the Circuit Court for Williamson County

No. CR037912, CR087508, II-CR053486 Joseph A. Woodruff, Judge

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No. M2020-00141-CCA-R3-PC

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In this consolidated appeal, the Petitioner, Robert Jason Burdick, appeals the denial of his

two post-conviction petitions and dismissal of his petition for writ of error coram nobis.

With regard to his post-conviction petitions, the Petitioner argues that he received

ineffective assistance of counsel due to counsel’s failure to challenge the trial court’s

enhancement of his sentence and failure to file a motion to suppress the State’s warrantless

attachment of a GPS tracking device to his vehicle. With regard to the petition for writ of

error coram nobis, the Petitioner argues that the coram nobis court erred in summarily

dismissing his petition and that he is entitled to due process tolling of the statute of

limitations. After review, we affirm the judgments of the lower court.

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

ALAN E. GLENN, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,

P.J., and ROBERT W. WEDEMEYER, J., joined.

Robert Jason Burdick, Hartsville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Senior Assistant

Attorney General; Kim R. Helper, District Attorney General, for the appellee, State of

Tennessee.

OPINION

FACTS

This case arises out of a series of rapes that occurred in Williamson County on

different dates and involving different victims for which the Petitioner was indicted in case

number II-CR053486.1 The cases were severed for trial.

In one of the cases,2 counts nine and ten of the original indictment, the Petitioner

was convicted of the aggravated rape and especially aggravated kidnapping of a minor

victim that was committed in the early morning hours of November 2, 1999, and he was

sentenced to twenty-five years in the Department of Correction. This court affirmed the

judgments of the trial court on direct appeal. State v. Robert Jason Burdick, No. M2011-

01299-CCA-R3-CD, 2012 WL 2151489 (Tenn. Crim. App. June 13, 2012), perm. app.

denied (Tenn. Sept. 18, 2012).

In another of the cases,3 counts twelve through fourteen of the original indictment,

the Petitioner was convicted of rape, aggravated kidnapping, and aggravated burglary for

offenses committed against an adult victim during the night of November 3, 2004, and he

was sentenced to thirty years in the Department of Correction. This court affirmed the

judgments of the trial court on direct appeal. State v. Robert Jason Burdick, No. M2012-

01071-CCA-R3-CD, 2013 WL 2642313 (Tenn. Crim. App. June 11, 2013), perm. app.

denied (Tenn. Nov. 13, 2013).

The Petitioner filed petitions for post-conviction relief in both cases and, after the

appointment of counsel, several amended petitions were filed. The Petitioner essentially

raised the same allegations of ineffective assistance of counsel in both petitions. Relevant

to this appeal, he asserted that counsel was ineffective: (1) for failing to challenge the trial

court’s improper application of enhancement factors during sentencing, and (2) for failing

to challenge law enforcement’s placement of a GPS tracking device on his vehicle.

The petitions in both cases were heard together on November 26, 2019. At the

hearing, the Petitioner testified that he felt that he was being unfairly punished because his

charges had been severed, and “the [c]ourt considered consecutive charges.” He

acknowledged that he did not raise the issue to his lawyers before he was sentenced.

On cross-examination, the Petitioner admitted that an issue about consecutive

sentencing was raised on appeal, and this court remanded the case to the trial court to make

findings regarding the issue. The Petitioner claimed that he did not see how the

enhancement factor regarding prior criminal convictions or criminal behavior applied

1

The Petitioner, coined the “Wooded Rapist,” was also indicted for a series of rapes that occurred in

Davidson County.

2

This case is later designated case number CR087508 at the post-conviction relief stage.

3

This case is later designated case number CR037912 at the post-conviction relief stage.

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“since it was all under one indictment[.]” However, he acknowledged that he had cases

pending in Davidson County when he was sentenced on the Williamson County offenses,

but he continued to allege, “[a]ll I was saying it was all under that same indictment.”

The Petitioner said that during the course of his proceedings, he learned that a GPS

monitoring device was attached to his vehicle, but neither trial nor appellate counsel ever

raised an issue about the suppression of any evidence obtained therefrom. He thought his

two trials concluded before the United States Supreme Court issued its opinion in United

States v. Jones, 565 U.S. 400 (2012), holding that law enforcement could not place a GPS

monitoring device on a vehicle without a warrant, but that his appeals were in the appellate

pipeline when Jones was decided, and his attorney should have raised a Fourth Amendment

claim.

On cross-examination, the Petitioner stated that counsel briefly discussed the GPS

issue with him but said that the issue “hasn’t been decided; it’s legal, they can do this[.]”

However, the Petitioner admitted that no evidence was used at trial based on the GPS

device and that he was already in jail when the buccal swabs were taken from him. He

simply extrapolated that the buccal swabs were fruit of the poisonous tree because the GPS

device was placed on his vehicle before he was arrested.

Captain David O’Neil of the Brentwood Police Department testified that he initially

became involved in the investigations involving the Petitioner in 1999 when he responded

to one of the rape calls as a patrol officer. He recalled that that case was ultimately retired

or dismissed at the request of the victim.

Turning to the issue about the GPS device, Captain O’Neil stated that he and his

partner were part of the surveillance team “that was following [the Petitioner] around.” He

remembered that the Petitioner was developed as a suspect on April 27, 2008. The next

day, Captain O’Neil and his partner watched the Petitioner at his place of employment and

then followed him with visual surveillance to TG’s Restaurant in Lavergne. After the

Petitioner left the restaurant, Captain O’Neil and his partner gathered the utensils used by

the Petitioner with the consent of the restaurant owner. They submitted the items to the

Tennessee Bureau of Investigation (“TBI”), which confirmed that the DNA on those items

matched the DNA collected of the unknown suspect in multiple rapes in Williamson and

Davidson Counties. The Nashville Police Department used that information as probable

cause to obtain the swabs from the Petitioner after his arrest on May 1, 2008.

Captain O’Neil testified that they placed a GPS tracker on the Petitioner’s vehicle

on Tuesday, April 29, 2008, the day after the utensils were collected from the restaurant.

He said that Jones had not yet been decided, and they were acting in good faith on an older

decision that said a tracking device could be placed on a vehicle without a warrant. Captain

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O’Neil stated that they did not gain any information from the tracking device and were

really just using it to protect the public until they could arrest the Petitioner, who was

already a suspect. He said that they continued with visual surveillance during that period

as well, and the purpose of the GPS was to maintain the Petitioner’s location if visual

surveillance was lost on him. Captain O’Neil recalled that the Petitioner had become a

suspect based on the observations and efforts of Officer Hamm with the Brentwood Police

Department. In light of information gathered by Officer Hamm, the Brentwood and Metro

Nashville Police Departments began visually surveilling the Petitioner, which led to the

collection of the utensils at the restaurant. Captain O’Neil recalled that a John Doe warrant

with the suspect’s DNA profile was issued in Davidson County prior to the aforementioned

surveillance.

Captain O’Neil reiterated that there was no evidence gathered from use of the GPS

device and that the Petitioner was identified as a suspect prior to the GPS being attached

to his vehicle.

One of the attorneys who represented the Petitioner testified that she worked as an

assistant public defender during the 2010 to 2012 timeframe. She recalled that she was

appointed to represent the Petitioner, but his family ended up hiring private counsel who

handled the first trial. She was re-appointed to represent the Petitioner in his second trial.

She handled the Petitioner’s trial but moved to different employment prior to his

sentencing.

Trial counsel said that she was familiar with the enhancement factors that could be

used in sentencing, one of which was a defendant’s prior convictions or “[p]rior criminal

conduct that would have been conduct that would have occurred prior to the acts that the

defendant was being sentenced [on].” At the time counsel represented the Petitioner, she

was aware that he had criminal cases pending in Davidson County relating to offenses that

occurred prior to the offenses that resulted in convictions in Williamson County. The

Petitioner’s sentencing report reflected that prior criminal activity.

Trial counsel testified that she and the Petitioner discussed the issue about the GPS

device being placed on his vehicle. She recalled that Jones was “in the pipeline . . . [and]

obviously . . . on [her] radar.” She spoke with Captain O’Neil and another detective, as

well as reviewed the discovery, before advising the Petitioner that she would not file an

additional motion to suppress based on Jones. She explained that it was her opinion that

there was no legal basis to proceed with such motion because the DNA evidence had been

obtained prior to the GPS device being attached to his car and no evidence had been

obtained as a result of the GPS device. Trial counsel noted that she had already filed and

litigated a motion to suppress regarding the search warrant and warrantless arrest, but after

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her investigation she did not believe there was a basis to proceed with a motion to suppress

based upon the GPS tracker.

On cross-examination, trial counsel acknowledged that there was not a strategic

reason for not filing a motion to suppress pursuant to Jones “[o]ther than there wasn’t any

evidence to suppress.” She reiterated on redirect that she had an ethical duty to not raise

issues unsupported by evidence, “hence [she] did not file it.”

At the conclusion of the hearing, the post-conviction court made extensive oral

findings and then issued a written order dismissing the petition in case number CR037912

(original counts twelve through fourteen) on December 11, 2019, and in case number

CR087508 (original counts nine and ten) on February 20, 2020. The Petitioner’s notices

of appeal were not timely filed, but this court waived the timely filing in the interests of

justice. This court consolidated the two appeals under the above listed docket number, No.

M2020-00141-CCA-R3-PC.

Meanwhile, on July 31, 2018, the Petitioner filed petitions for writ of error coram

nobis in both cases, CR037912 and CR087508, which the trial court evidently

consolidated. The trial court denied a motion by the State to dismiss as untimely.

However, the Petitioner then moved to voluntarily dismiss his petition and, on November

26, 2019, the trial court granted the Petitioner’s motion.

Thereafter, on December 11, 2019, the Petitioner filed a new petition for writ of

error coram nobis in case number II-CR053486, the original underlying case number. In

the petition, the Petitioner asserted that a private investigator had provided an affidavit that

constituted newly discovered evidence because it invalidated the request for a search

warrant that resulted in the seizure of DNA evidence that linked him to the 1999 and 2004

crimes of which he was convicted. The coram nobis court thoroughly analyzed the

allegations and dismissed the petition as untimely on April 23, 2020. The court found that

the investigator’s affidavit did not constitute newly discovered evidence that could lead to

a different outcome sufficient to provide a basis for due process tolling of the statute of

limitations. The Petitioner’s appeal from this dismissal was ultimately consolidated with

the above referenced consolidated post-conviction appeal.

ANALYSIS

I. Petitions for Post-Conviction Relief

Post-conviction relief “shall be granted when the conviction or sentence is void or

voidable because of the abridgment of any right guaranteed by the Constitution of

Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103. The

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petitioner bears the burden of proving factual allegations by clear and convincing evidence.

Id. § 40-30-110(f). When an evidentiary hearing is held in the post-conviction setting, the

findings of fact made by the court are conclusive on appeal unless the evidence

preponderates against them. See Wiley v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When

reviewing factual issues, the appellate court will not reweigh the evidence and will instead

defer to the post-conviction court’s findings as to the credibility of witnesses or the weight

of their testimony. Id. However, review of a post-conviction court’s application of the law

to the facts of the case is de novo, with no presumption of correctness. See Ruff v. State,

978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective assistance of counsel, which

presents mixed questions of fact and law, is reviewed de novo, with a presumption of

correctness given only to the post-conviction court’s findings of fact. See Fields v. State,

40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999).

A. Ineffective Assistance of Counsel

The Petitioner argues that counsel was ineffective for failing to challenge the trial

court’s enhancement of his sentence based on prior criminal conduct and failing to file a

motion to suppress the State’s attachment of a GPS tracking device to his vehicle without

a warrant.

To establish a claim of ineffective assistance of counsel, the petitioner has the

burden to show both that trial counsel’s performance was deficient and that counsel’s

deficient performance prejudiced the outcome of the proceeding. Strickland v.

Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn.

Crim. App. 1997) (noting that the same standard for determining ineffective assistance of

counsel that is applied in federal cases also applies in Tennessee). The Strickland standard

is a two-prong test:

First, the defendant must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that counsel was

not functioning as the “counsel” guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense. This requires showing that counsel’s

errors were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.

466 U.S. at 687.

The deficient performance prong of the test is satisfied by showing that “counsel’s

acts or omissions were so serious as to fall below an objective standard of reasonableness

under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

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(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).

Moreover, the reviewing court must indulge a strong presumption that the conduct of

counsel falls within the range of reasonable professional assistance, see Strickland, 466

U.S. at 690, and may not second-guess the tactical and strategic choices made by trial

counsel unless those choices were uninformed because of inadequate preparation. See

Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied

by showing a reasonable probability, i.e., a “probability sufficient to undermine confidence

in the outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Strickland, 466 U.S. at 694.

Courts need not approach the Strickland test in a specific order or even “address

both components of the inquiry if the defendant makes an insufficient showing on one.”

466 U.S. at 697; see also Goad, 938 S.W.2d at 370 (stating that “failure to prove either

deficiency or prejudice provides a sufficient basis to deny relief on the ineffective

assistance claim.”).

1. Prior Convictions

The Petitioner asserts that counsel rendered ineffective assistance for failing to

challenge the trial court’s enhancement of his sentence based on “prior convictions” that

“were nothing more than the first convictions handed down in a series of jury trials

stemming from a 13-count indictment in Davidson and Williamson Counties.” He notes

that the trial court used his Davidson County convictions for attempted aggravated rape

and especially aggravated kidnapping to enhance his sentence based on prior criminal

conduct, and he acknowledges that he was convicted in this case after he was convicted for

the Davidson County rapes. However, he asserts that because he had not committed new

crimes or served time for the Davidson County convictions at the time of his arrest, he did

not have a previous history of criminal convictions.

This court has previously held that “trial courts can consider criminal convictions

or any other criminal behavior which occurred prior to the sentencing hearing as being ‘a

previous history of criminal convictions or criminal behavior’ under Tenn. Code Ann. §

40-35-114(1), regardless of whether the convictions or behavior occurred before or after

the criminal conduct under consideration.” State v. Jordan, 116 S.W.3d 8, 24 (Tenn. Crim.

App. 2003) (internal quotation omitted). At the evidentiary hearing, counsel testified that

she was familiar with the enhancement factors that could be used in sentencing, one of

which was a defendant’s prior convictions or “[p]rior criminal conduct that would have

been conduct that would have occurred prior to the acts that the defendant was being

sentenced [on].” According to the Petitioner’s presentence report, the criminal acts

committed in Davidson County took place prior to the Petitioner’s sentencing in the present

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cases. We, therefore, conclude that counsel was not ineffective for failing to challenge the

application of this enhancement factor.

In his reply brief, the Petitioner additionally asserts that because the Davidson

County convictions had not become final and that appeal was pending at the time he was

sentenced on the Williamson County convictions, those convictions could not be used to

enhance his sentence. The Petitioner cites cases from Texas and Louisiana as persuasive

authority for this supposition. This angle still does not entitle to the Petitioner to relief.

The trial court could have enhanced the Petitioner’s sentence based on prior criminal

convictions or criminal behavior, see Tenn. Code Ann. § 40-35-114(1), and the Petitioner’s

activities in Davidson County could certainly qualify as criminal behavior. Thus, there

was no prejudice caused by counsel’s not challenging the trial court’s enhancement of his

sentence based on “prior convictions.”

2. GPS Tracking Device

The Petitioner argues that both trial and appellate counsels rendered ineffective

assistance for failing to challenge law enforcement’s placement of a GPS tracking device

on his vehicle without a warrant, “which ultimately led to his arrest and the taking of his

DNA sample resulting in his conviction.”

In support of his argument, the Petitioner points out that while his case was in the

appellate pipeline, the United States Supreme Court issued its opinion in Jones, 565 U.S.

400, holding that the attachment of a GPS tracking device to a defendant’s vehicle

constituted a search within the meaning of the Fourth Amendment thus necessitating a

warrant. He claims that counsel should have challenged his arrest “based upon an

unreasonable seizure of his person stemming from an illegal search” and sought to suppress

“all evidence obtained from [his] person, his vehicle and his home as fruits of an

unconstitutional search and seizure.” He also contends that “once law enforcement lost

sight [of him] visually, . . . law enforcement relied upon the GPS device to locate [him] . .

. and did initiate a ‘stop’ of the vehicle and effect an ‘arrest’ of his person without a

warrant.”

At the post-conviction hearing, counsel testified that she and the Petitioner

discussed the issue about the GPS device being placed on his vehicle. She knew that Jones

was in the appellate pipeline and was aware of its ramifications. She spoke with Captain

O’Neil and another detective, as well as reviewed the discovery, before advising the

Petitioner that she would not file an additional motion to suppress based on Jones. She

explained that it was her opinion that there was no legal basis to proceed with such motion

because the DNA evidence had been obtained prior to the GPS device being attached to

his car, and no evidence had been obtained as a result of the GPS device. Counsel noted

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that she had already filed and litigated a motion to suppress regarding the search warrant

and warrantless arrest, but after her investigation she did not believe there was a basis to

proceed with a motion to suppress based upon the GPS tracker, and she had an ethical duty

not to file a frivolous motion.

In ruling on this issue, the post-conviction court found that there was not an ethical

basis for counsel to file a motion to suppress based on the GPS tracking device “because

there was in fact no legal or factual connection between the GPS tracking and the DNA

evidence. . . . Consequently, . . . the Petitioner has failed to show that [counsel’s]

performance fell below the standard required for criminal defense attorneys.”

The Petitioner’s argument disregards the fact that no information or evidence was

gathered as a result of the tracking device. The police had already obtained the Petitioner’s

DNA from utensils that he had used at a restaurant before the device was installed on his

vehicle, and the DNA on those items matched the DNA collected of the unknown suspect

in multiple rapes in Williamson and Davidson Counties. Evidence of the Petitioner’s DNA

was not fruit of the poisonous tree as the police had already obtained the sample before

attaching the device to his vehicle. We determine that neither trial nor appellate counsel

rendered deficient performance by failing to raise what would have been a frivolous claim.

In addition, the Petitioner has not established prejudice because none of the evidence used

to secure his arrest and convictions arose from the tracking device.

II. Writ of Error Coram Nobis

The Petitioner also argues that the coram nobis court erred in summarily dismissing

his petition for writ of error coram nobis and that he is entitled to due process tolling of the

statute of limitations. The newly discovered evidence the Petitioner asserts entitles him to

relief is an affidavit from a private investigator establishing that a detective falsely claimed

that one of the rape victims had described her attacker to a TBI sketch artist, who created

a sketch that resembled the Petitioner’s driver’s license photo and was used to obtain the

search warrant that ultimately led to his wrongful conviction.

In ruling on the petition for writ of error coram nobis, the coram nobis court found

that the affidavit of the private investigator did not entitle the Petitioner to relief. The court

determined that the alleged statements of the victim recited in the investigator’s affidavit

were hearsay and that there was no exception allowing the investigator to testify about what

the victim said to him. The court also determined that even if the hearsay statements were

admissible, striking all references to the alleged sketch from the affidavit would not have

invalidated the warrant, as the remaining facts provided abundant probable cause

supporting its issuance. The court concluded that the affidavit did not provide newly

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discovered evidence that could lead to a different outcome and thus did not provide a basis

for due process tolling of the statute of limitations.

A writ of error coram nobis is an extraordinary remedy by which the court may

provide relief from a judgment under only narrow and limited circumstances. State v.

Mixon, 983 S.W.2d 661, 666 (Tenn. 1999). Tennessee Code Annotated section 40-26-105

provides this remedy to criminal defendants:

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. The issue shall be tried by the court without the intervention of a

jury, and if the decision be in favor of the petitioner, the judgment

complained of shall be set aside and the defendant shall be granted a new

trial in that cause.

Tenn. Code Ann. § 40-26-105(b), (c).

Our supreme court has stated the standard of review as “whether a reasonable basis

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

proceedings might have been different.” State v. Vasques, 221 S.W.3d 514, 525-28 (Tenn.

2007) (citation omitted). Coram nobis claims may be based upon any “newly discovered

evidence relating to matters litigated at the trial” so long as the petitioner establishes that

he or she was “without fault” in failing to present the evidence at the proper time. Harris

v. State, 102 S.W.3d 587, 592 (Tenn. 2003). Coram nobis claims are “singularly fact-

intensive,” are not easily resolved on the face of the petition, and often require a hearing.

Id. at 592-93. The decision to grant or deny coram nobis relief rests within the sound

discretion of the coram nobis court. Vasques, 221 S.W.3d at 527-28. We review this issue,

therefore, under an abuse of discretion standard.

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

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

on other grounds by Nunley v. State, 552 S.W.3d 800 (Tenn. 2018). The one-year statute

of limitations may, however, be tolled on due process grounds if the petitioner seeks relief

based upon newly discovered evidence of actual innocence. Nunley, 552 S.W.3d at 828-

29 (citing State v. Wilson, 367 S.W.3d 229, 234 (Tenn. 2012)), overruled on other grounds

by Nunley, 552 S.W.3d 800. In determining whether tolling is proper, the court must

balance the petitioner’s interest in having a hearing with the State’s interest in preventing

a claim that is stale and groundless. Harris, 301 S.W.3d at 145 (citing Workman v. State,

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41 S.W.3d 100, 102 (Tenn. 2001)). Generally, “before a state may terminate a claim for

failure to comply with . . . 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 v. State, 845 S.W.2d 204, 208 (Tenn. 1992). The Burford

rule consists of three steps:

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

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

would normally have commenced; and

(3) if the grounds are “later-arising,” determine if, under the facts of the case, a strict

application of the limitations period would effectively deny the petitioner a

reasonable opportunity to present the claim.

Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995), overruled on other grounds by Nunley,

552 S.W.3d 800. Whether a claim is time-barred is a question of law, which we review de

novo. Harris, 301 S.W.3d at 145 (citation omitted).

The Petitioner does not dispute that his petition was untimely but asserts that he is

entitled to due process tolling of the statute of limitations. We conclude that the coram

nobis court properly dismissed the petition for a number of reasons. First, the Petitioner’s

claim is not later-arising in that there is no evidence that the victim was unavailable and

unable to testify about the sketch during the limitations period. The victim was readily

discovered by the investigator fourteen years after the incident at her current residence, and

the investigator ascertained her place of employment. There is no proof that “the exercise

of reasonable diligence would not have led to a timely discovery of the new information.”

Vasques, 221 S.W.3d at 527. Moreover, discovery of or ignorance to the existence of a

claim does not create a “later-arising” claim for due process purposes. See Brown v. State,

928 S.W.2d 453, 456 (Tenn. Crim. App. 1996); Passarella v. State, 891 S.W.2d 619, 635

(Tenn. Crim. App. 1994).

Second, the investigator’s affidavit was hearsay not subject to any exception. The

investigator had no personal knowledge of the incident and was merely reciting statements

from a victim related to an incident that occurred fourteen years earlier that supposedly

disputed the officer’s statement in the affidavit for a search warrant. There was no sworn

statement or affidavit from the victim to verify the information contained in the

investigator’s affidavit, and this court has held “[a]n affidavit, like the testimony of a

witness, must be relevant, material and germane to the grounds raised in the petition; and

the affiant must have personal knowledge of the statements contained in the affidavit[.]”

State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App. 1995).

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Third, the Petitioner does not proffer any reason why the victim should be deemed

unavailable, necessitating introduction of the investigator’s affidavit. As noted above, the

victim was readily located by the investigator at her residence, and her current employment

was ascertained. The Petitioner has not established that the victim was unavailable.

Fourth, the Petitioner’s suggestion that the affidavit was not hearsay because it was

not offered to prove the truth of the matter asserted is without merit. The officer could

have only lied in the search warrant if the victim did not speak with the sketch artist;

obviously the Petitioner sought to introduce the victim’s alleged statement to prove the

truth of the matter asserted.

Fifth, the “newly discovered evidence,” i.e., the investigator’s affidavit, was not

material. As determined by the coram nobis court, even if all references to the sketch were

struck from the affidavit by the officer in support of the warrant, there was still sufficient

probable cause to support issuance of the warrant. The court noted that the affidavit

detailed that the Forrest Hills area had no noticeable foot traffic during the timeframes that

coincided with the Wooded Rapist attacks, that a male whose description and clothing were

exactly like that of the Wooded Rapist was seen on foot during the hours and in the location

in line with the previous attacks, and that the Petitioner was stopped shortly thereafter and

lied about his reasons for being in the area and conducted himself in a deceptive and evasive

manner. The court further noted that the affidavit contained four pages of single-spaced

typed information establishing circumstantial connections with the Petitioner and offenses

associated with the Wooded Rapist, and that information about the disputed sketch was

only one paragraph consisting of less than six lines of type. The court also noted that law

enforcement encountered the Petitioner in the vicinity of one of the crimes, dressed in a

manner consistent with a description by witnesses making a prowler report.

We easily conclude that the coram nobis court did not abuse its discretion in

determining that the investigator’s affidavit did not constitute newly discovered evidence

that could lead to a different outcome sufficient to provide a basis for due process tolling

of the statute of limitations.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgments of the

lower court.

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ALAN E. GLENN, JUDGE

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