Lead Opinion
OPINION
delivered the opinion of the Court,
We granted the State’s appeal to determine whether the Court of Criminal Appeals erred in reversing the trial court’s summary dismissal of the petition for writ of error coram nobis and remanding for a determination of whether due process requires tolling of the one-year statute of limitations. We conclude that the delay in seeking coram nobis relief is unreasonable as a matter of law under the circumstances of this case, and therefore due process considerations do not preclude application of the statute of limitations to bar the petition. Accordingly, we reverse the judgment of the Court of Criminal Appeals
Facts and Procedural History
On March 1, 1988, a jury found the petitioner, Ricky Harris, guilty of first degree murder. On May 4, 1988, the trial court denied Mr. Harris’s motion for a new trial and entered a judgment sentencing him to life imprisonment. His conviction and sentence were affirmed on direct appeal. State v. Harris, No. 85,
On December 10, 1998, just three days after this Court denied Mr. Harris’s application for permission to appeal, Mr. Harris filed a motion to reopen his post-conviction petition, alleging that the State had failed to disclose the identity of a purported alibi witness named Corrine Hampton. Mr. Harris asserted that he became aware of Ms. Hampton when he received an anonymous letter in response to an August 1998 newspaper advertisement seeking information about his case. The letter stated that Ms. Hampton told an unidentified officer that a man resembling Mr. Harris helped her when she had car trouble on September 8,1987, at approximately 8:25 a.m. She saw nothing suspicious inside his car or trunk and followed him to the car dealership where he worked. These events allegedly occurred during the time when Mr. Harris was murdering the victim and disposing of her body according to the State’s theory of the crime. The trial court denied the motion to reopen, ruling that the motion did not state a cognizable ground for reopening the post-conviction petition.
On appeal, a majority of the Court of Criminal Appeals sua sponte treated the motion to reopen as a petition for writ of error coram nobis and remanded the case for a hearing on the merits. After granting the State’s application for permission to appeal, this Court held that Mr. Harris did not state a cognizable ground for reopening his post-conviction petition. Harris v. State,
On March 11, 2004, almost eleven months after this Court’s opinion, Mr. Harris filed a petition for writ of error coram nobis. He based the petition on two items of purportedly newly discovered evidence. The first item related to the potential alibi witness, Ms. Hampton. Mr. Harris asserted that he did not become aware of the exculpatory nature of the evidence from Ms. Hampton until his private investigator contacted her in 1998.
The trial court summarily dismissed the petition for writ of error coram nobis. The trial court concluded that Mr. Harris was not entitled to coram nobis relief because his claims did not involve newly discovered evidence because he knew of Ms. Hampton at the time of his trial and the “Bill” letters were an issue as early as the original post-conviction proceeding. The trial court also ruled that the petition was barred by the statute of limitations.
The Court of Criminal Appeals reversed the trial court’s dismissal of the petition. The intermediate appellate court remanded the case for a hearing to determine: (1) whether due process considerations require tolling of the statute of limitations; (2) whether the alibi evidence is credible; and (3) whether the third-party confession evidence is newly discovered.
We granted the State’s application for permission to appeal.
Analysis
A proceeding in the nature of a writ of error coram nobis is available to convicted defendants in criminal cases. Tenn.Code Ann. § 40-26-105(a) (2006). Whether to grant or deny a petition for writ of error coram nobis on its merits rests within the sound discretion of the trial court. State v. Vasques,
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).
Coram nobis claims are subject to a one-year statute of limitations. Tenn. Code Ann. § 27-7-103 (2000) (“The writ of error coram nobis may be had within one (1) year after the judgment becomes final....”). The statute of limitations is computed from the date the judgment of the trial court becomes final, either thirty days after its entry in the trial court if no post-trial motions are filed or upon entry of an order disposing of a timely filed, post-trial motion. State v. Mixon,
In this case, the State appropriately raised the statute of limitations in the trial court. Id,.; see Sands v. State,
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. Workman v. State,
To determine whether due process requires tolling, a court must weigh the petitioner’s interest in obtaining a,hearing to present a later-arising ground for relief against the State’s interest in preventing stale and groundless claims. Workman,
(1) determine when the limitations period would normally have begun to run;
(2) determine whether the grounds 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,
In this case, the limitations period normally would have begun to run on June 3, 1988, thirty days after the trial court denied Mr. Harris’s motion for a new trial. Therefore, the statute of limitations would have expired on June 4, 1989, almost fifteen years before Mr. Harris filed his petition for writ of error coram nobis.
The second step in the analysis requires a determination of whether Mr. Harris’s grounds for relief — the alibi evidence and the third-party confession evidence — actually arose after the limitations period normally would have commenced. The factual allegations relevant to whether these grounds are later-arising are subject to considerable dispute. See Harris,
The Court of Criminal Appeals did not address the third step in the analysis, however, which requires a determination of whether Mr. Harris was given a reasonable opportunity to present his claims. On two prior occasions, we have examined the reasonableness of delayed filings based on latei'-arising exculpatory evidence claims. In Workman, a capital case, the petition for writ of error coram nobis was filed approximately thirteen months after the petitioner obtained the evidence at issue. We concluded that the time within which the petition was filed did not exceed the reasonable opportunity afforded by due process. Workman,
In applying the due process balancing analysis, we have declined to create a specific limitations period for later-arising claims. Id. at 273 n. 8. Moreover, we have not previously attempted to set an outer limit of reasonableness for delayed filings based on such claims. This case presents an opportunity to clarify when delay in seeking coram nobis relief may be unreasonable as a matter of law, keeping in mind that each case must stand on its own facts.
Mr. Harris alleged in his petition for writ of error coram nobis that he did not become aware of the exculpatory nature of the alibi evidence until his private investigator contacted Ms. Hampton in 1998. Mr. Harris further alleged that he did not obtain evidence proving the exculpatory nature of the third-party confession until he received a handwriting expert’s June 2002 report identifying the author of the “Bill” letters. Even if we accept as true all of Mr. Harris’s allegations regarding these two items of evidence, Mr. Harris could have asserted a coram nobis claim as early as 1998 with regard to the alibi evidence and as early as June 2002 with regard to the third-party confession evidence. Mr. Harris filed his petition for writ of error coram nobis on March 11, 2004. This represents a delay of approximately six years with regard to the alibi evidence and approximately twenty-one months with regard to the third-party confession evidence.
Moreover, we need not consider Mr. Harris’s previous attempt to present the alibi evidence in a motion to reopen his post-conviction petition in determining whether he has been denied a reasonable opportunity to assert a claim. No statute in Tennessee nor tolling rule developed at common law provides that the time for filing a cause of action is tolled during the period in which a litigant pursues a related but independent cause of action. In 1998, when Mr. Harris filed his motion to reopen his post-conviction petition based on newly discovered evidence, he chose not to file a
Unlike other cases in which the statute of limitations has been tolled because of due process concerns, the opportunity to assert a coram nobis claim was entirely within Mr. Harris’s control after 1998 with regard to the alibi evidence and after June 2002 with regard to the third-party confession evidence. Nothing prevented Mr. Harris from filing a separate coram nobis action while his motion to reopen was pending. Cf. Burrell v. State, No. E1999-02762-CCA-R3-PC,
The State’s appeal to this Court on February 4, 2002, in the proceeding in which Mr. Harris sought to reopen his post-conviction petition put Mr. Harris on notice that he should file a coram nobis claim to preserve this legal remedy. He chose to wait until March 11, 2004, twenty-five months after the State’s appeal and eleven months after this Court’s opinion, to assert such a claim. A majority of this Court determined that the Court of Criminal Appeals erred in sua sponte treating his motion to reopen as a petition for writ of error coram nobis. The intermediate appellate court’s erroneous treatment of his motion to reopen can provide no basis for tolling the statute of limitations in his subsequent coram nobis action.
We conclude that the pleadings, read in the light most favorable to Mr. Harris, do not present a legal basis for overcoming the State’s assertion of the statute of limitations. The time within which Mr. Harris filed his petition for writ of error coram nobis exceeds the reasonable opportunity afforded by due process. Mr. Harris’s delay in seeking coram nobis relief — six years with respect to the alibi evidence and twenty-one months with respect to the third-party confession — is unreasonable under the circumstances of this case. As a matter of law and under the circumstances of this case, Mr. Harris is not entitled to due process tolling.
Conclusion
We hold that the delay in seeking coram nobis relief is unreasonable as a matter of law under the circumstances of this case. Therefore, due process considerations do not preclude application of the statute of limitations to bar Mr. Harris’s petition for writ of error coram nobis. Accordingly, we reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the trial court dismissing the petition. It appearing that Mr. Harris is indi
WILLIAM C. KOCH, JR., J., filed a separate opinion concurring in part and concurring in result, in which CORNELIA A. CLARK, J., joined.
Notes
. Following the trial court’s denial of his motion to reopen, Mr. Harris filed Ms. Hampton's affidavit containing the alleged exculpatory statement. The affidavit states that Ms. Hampton had car trouble in September 1987 but does not indicate the exact date of the incident.
. Discussion of tolling in Harris was limited to the purported alibi evidence obtained in response to Mr. Harris’s August 1998 newspaper advertisement. A plurality of the Court, in dicta, and two dissenting members of the Court disagreed as to whether the claim was later-arising. Compare Harris,
. If there is a reasonable doubt as to the applicability of the procedural bar and the surrounding circumstances are not adequately developed, prudence may warrant an evi-dentiary hearing. In the words of Benjamin Franklin, "an ounce of prevention is worth a pound of cure.”
. The Court may take judicial notice of its own records. State v. Lawson,
Concurrence Opinion
with whom CORNELIA A. CLARK, J., joins, concurring in part and concurring in the result.
I concur with the Chief Justice’s conclusion that Mr. Harris is not entitled to coram nobis relief with regard to either of his newly discovered evidence claims. Her conclusion that the claim based on the evidence regarding the “Bill” letters is time-barred is correct. I cannot, however, concur in her conclusion that the claim based on the evidence regarding the alibi witness is likewise time-barred because Mr. Harris has made out a prima facie case for equitable tolling with regard to that claim. Apart from the question of the timeliness of these claims, I 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.
I.
The writ of error coram nobis has ancient common-law roots.
In its current statutory form, the writ of error coram nobis is an extraordinary remedy that should be granted only in extreme cases. State v. Mixon,
Access to the extraordinary remedy available through a writ of error coram nobis must be tempered by the public’s dual interests in the orderly and reasonably prompt implementation of its laws and in the finality of judgments. People v. Hyung Joon Kim,
In Tennessee, a trial court’s decision whether to grant or deny a writ of error coram nobis is a discretionary one. State v. Vasques,
II.
The practice and procedure governing writs of error coram nobis challenging a criminal conviction present a challenge to the contemporary bench and bar. The current procedural rules governing criminal and post-conviction proceedings do not apply to the statutory writ. The General Assembly has expressly directed in Tenn. Code Ann. § 40-26-105(a) that these writs must “be governed by the same rules and procedure applicable to the writ of error coram nobis in civil cases, except insofar as inconsistent herewith.” These rules and procedures are found in Tenn.Code Ann. §§ 27-7-101 through -108 and in the precedents handed down by Tennessee’s courts during the past one hundred and fifty years since the writ of error coram nobis was codified in 1858. Thus, even though the rules and procedures in Tenn.Code Ann. §§ 27-7-101 through -108 were abandoned in civil cases almost forty years ago,
This case implicates four matters relating to the application of Tenn.Code Ann. §§ 27-7-101 through -108 to writs of error coram nobis. The first involves the general rules of pleading governing these writs. The second relates to the rules of pleading particularly applicable to writs challenging a criminal conviction based on newly discovered evidence. The third pertains to the pleading requirements relating to the statute of limitations and the doctrine of equitable tolling. The final matter involves the role of evidentiary hearings in these proceedings.
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. Sam Gilreath & Bobby R. Aderholt, Caruthers’ History of a Lawsuit § 401, at 453 (8th ed.1963) (hereinafter “Gilreath & Aderholt”). 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.
A petition for a writ of error coram nobis must comply with all the requirements of Tenn. Code Ann. § 40-26-105 and the applicable requirements of Tenn.Code Ann. §§ 27-7-101 through -108.
The petition must be prepared with the same specificity required in a motion for new trial. Higgins & Crownover, § 1770, at 702 & § 1781, at 706; 11 David Louis Raybin, Tennessee Practice: Criminal Practice and Procedure § 33:20, at 477 (2008) (hereinafter “Raybin”). Therefore, it must be “as specific and certain as the nature of the error will permit.” Memphis St. Ry. v. Johnson,
In addition to these substantive requirements, the petition must be verified under oath. Gilreath & Aderholt, § 398, at 451; Higgins & Crownover, § 1779, 705-06; In-man, § 665, at 704. It is also advisable to file supporting affidavits at the same time the petition is filed. State v. Hart,
B.
When the new statutory writ of error coram nobis was originally created, it could not be used to challenge a judgment based on newly discovered evidence regarding matters that had been litigated at trial. Johnson v. Russell,
[u]pon 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.
As a result of this amendment, challenging a criminal conviction based on newly discovered evidence is now the most common use of the statutory writ.
Prisoners are “tireless in seeking new trials on the ground of newly discovered evidence.” 3 Charles A. Wright, Nancy J. King & Susan R. Klein, Federal Practice and Procedure § 557, at 540 (3d ed. 2004) (“Federal Practice and Procedure ”). However, the courts view these efforts with great caution because they are clouded by concerns of fabrication, perjury, and fraud. Bigham v. Brewer,
Prisoners seeking a new trial based on newly discovered evidence must satisfy “rather exacting standards.” Raybin,
The motion or petition must be in writing and (1) must describe with particularity the nature and substance of the newly discovered evidence
A motion or petition seeking a new trial based on newly discovered evidence must also be supported by affidavits. These affidavits must be relevant, material, and germane and must be based on personal knowledge. State v. Hart,
C.
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. Higgins & Crownover, § 1771, at 702; Inman, § 665, at 704, § 668, at 709. 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,
In 2001, however, this Court applied the doctrine of equitable tolling, first embraced in Burford v. State,
D.
It has become quite commonplace for prisoners to assert that trial courts should conduct evidentiary hearings whenever a petition for writ of error coram nobis is filed. However, 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 holding an evidentiary hearing. While there are certainly petitions for a writ of error coram nobis that cannot be
Petitions for a writ of error coram nobis have always been subject to challenge by a motion to dismiss. Gilreath & Aderholt, § 401, at 453; Higgins & Crownover, § 1771, at 702, § 1782, at 707; Inman, § 668, at 709. These motions may be filed at any time prior to the final disposition of the case. Elliott v. R.C. McNairy & Co.,
Tennessee’s appellate courts have consistently upheld the dismissal of a petition for writ of error coram nobis following a challenge in a motion to dismiss or demurrer. See e.g., U.S.F. & G. Co. v. Reese,
Mr. Harris asserts that he is entitled to an evidentiary hearing because of Tenn. Code Ann. § 40-26-105(c)’s requirement that “[t]he issue shall be tried by the court without the intervention of the jury.” He insists that the reference to issues being “tried by the court” can only mean that all issues raised in a petition for writ of error coram nobis must be “tried.” Mr. Harris is placing far too much weight on this language. When the plain language of Tenn.Code Ann. § 40-26-105(c) is considered in light of the history of the evolution in the use of the writ of error coram nobis in Tennessee, no conclusion can be drawn other than that the purpose of the statutory direction that writs of error be “tried by the court” was to make clear that disputed questions of fact, when they arise, should be decided by the trial judge , rather than by a jury.
In 1851, this Court held that disputed issues of fact arising in coram nobis proceedings should be resolved by a jury. Crawford v. Williams,
When the General Assembly enacted Tenn.Code Ann. § 40-26-105(c) in 1955, it laid to rest any ambiguity regarding how the issues raised by a petition for writ of error coram nobis arising out of a criminal proceeding should be tried. When a trial court determines that an evidentiary hearing with regard to disputed fact issues is necessary, Tenn.Code Ann. § 40-26-105(c) ensures a judge, not a jury, will determine disputed facts in a coram nobis proceeding and will then decide whether the petitioner is entitled to a new trial.
III.
Mr. Harris has asserted two claims for coram nobis relief. With regard to each claim, the Court must first determine whether Mr. Harris has 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. The substantive adequacy of Mr. Harris’s petition need only be addressed if Tenn.Code Ann. § 27-7-103 does not bar his claim.
A.
Mr. Harris’s first claim for coram nobis relief is based on the “Bill” letters and the evidence he later obtained regarding the purported authorship of these letters. There is no question that the petition asserting this ground for coram nobis relief was filed well after the expiration of the one-year statute of limitations in Tenn. Code Ann. § 27-7-103. Thus, the pivotal question is whether Mr. Harris’s petition demonstrates that he is entitled to equitable tolling under Workman v. State.
The equitable tolling analysis entails a consideration of “the governmental interests involved and the private interests affected by the official action.” Workman v. State,
The second basis for my conclusion that Mr. Harris is not entitled to equitable tolling with regard to his “Bill” letters claim is that the evidence he is relying upon — both the “Bill” letters themselves and the evidence purportedly identifying the author of these letters — is inadmissible. A third party’s confession made out-of-court is hearsay. However, a confession by a third party to a crime for which the defendant was convicted qualifies as a statement against penal interest that would be admissible as an exception to the hearsay rule under Tenn. R. Evid. 803(b)(3). Thus, a defendant seeking co-ram nobis relief could proffer a third party’s confession to prove that the crime for which he or she was convicted was committed by someone else.
However, this principle cannot be extended to anonymous third-party confessions because they do not qualify as statements against penal interest. State v. Kiser,
In exceptional circumstances, Tennessee’s courts must relax the strict application of the rules of evidence to enable a defendant to present his or her defense in order to meet the requirements of the Due Process Clause of the United States Constitution. State v. Brown,
There is no question that an authentic confession by a third party to the murder of Ms. Gouge would be critical to Mr. Harris’s defense. However, anonymous confessions in general, and this confession in particular, lack indicia of reliability, and the State’s interest in excluding this evidence is sufficiently important to warrant its exclusion.
This Court’s interpretation of the Due Process Clause of the Fourteenth Amendment in State v. Brown is based on Chambers v. Mississippi
In State v. Brown, this Court concluded that the Due Process Clause required admission of hearsay evidence, despite not qualifying for the statement against interest exception, finding reliability on another basis. State v. Brown,
The circumstances establishing reliability of the third-party confessions in Chambers v. Mississippi, Green v. Georgia, and State v. Brown are absent in this case. The anonymous confession in the “Bill” letters does not qualify as a statement against interest. Even assuming the confession could be attributed to Mr. Foster, he is not a victim or claimant, and no other well-recognized hearsay exception can be invoked. The confession was not made openly to a friend shortly after the murder but instead made anonymously approximately four years after the murder and five months after Mr. Harris was denied permission to pursue a direct appeal before this Court. There is absolutely no
As for the third State v. Brown factor, the State’s interest in discouraging the admission of anonymous confessions is substantial. Post-judgment confessions are not uncommon and should be viewed with skepticism, Brown v. State,
Accordingly, in weighing the competing interests with regard to the application of equitable tolling in this case, the Court must balance the governmental interest in “the prevention of stale and groundless claims,” Workman v. State,
A third basis for my conclusion that tolling is not warranted with regard to the claim relating to the “Bill” letters is Mr. Harris’s delay in filing a petition for writ of error coram nobis. While there is no specific time period in which a prisoner must present a petition after their discovery of new evidence, petitioners must present the petition within a time period that “does not exceed the reasonable opportunity afforded by due process.” See Sample v. State,
The defects in Mr. Harris’s petition, coupled with the fact that the evidence regarding the authorship of the “Bill” letters was not newly discovered evidence for the purpose of Tenn.Code Ann. § 40-26-105(b), provide a sound basis for concluding that Mr. Harris has failed to demonstrate that he is entitled to equitable tolling of the statute of limitations with regard to his claim for coram nobis relief regarding the “Bill” letters and the evidence regarding the authorship of these letters. Accordingly, I have concluded that Mr. Harris’s claim based on the “Bill” letters and the evidence regarding the authorship of these letters is time-barred because it was filed after the stat
B.
Mr. Harris’s second claim for coram no-bis relief is based on the alleged newly discovered evidence regarding a police telephone conversation with a potential alibi witness prior to his trial. Mr. Harris asserts that the State did not turn over this information to him or to his lawyer prior to his trial and that had the State done so, he would have been able to present an alibi defense at trial. My analysis of the viability of this claim for coram nobis relief follows a different path than my analysis of Mr. Harris’s claim relating to the “Bill” letters.
There is no question that Mr. Harris asserted his claim based on the evidence regarding the alleged alibi witness after the statute of limitations in Tenn.Code Ann. § 27-7-103 expired. However, unlike his claim based on the evidence regarding the “Bill” letters, Mr. Harris’s petition contains sufficient specific factual averments which, if true, make out a prima facie basis for invocation of the equitable tolling doctrine. Even though the State denied the authenticity of any of the evidence regarding the alibi witness produced by Mr. Harris, I will presume for the purpose of my analysis in this case that the police interviewed a potential alibi witness prior to trial and failed to turn over this evidence to Mr. Harris or his attorney.
I now turn to the three-pronged equitable tolling analysis. First, the evidence relating to the police officer’s purported pretrial telephone conversation with a potential alibi witness qualifies as later arising newly discovered evidence. Based on the allegation in his petition, Mr. Harris did not learn of this conversation until sometime after August 1998 — well after the statute of limitations in Tenn.Code Ann. § 27-7-103 expired. Second, the purported failure of the State to turn over this information prior to trial, if in fact the information existed, would have amounted to a deprivation of a constitutional right during the conviction process because Brady v. Maryland obligated the State to turn over potentially exculpatory information to Mr. Harris. Third, the strict enforcement of the statute of limitations in Tenn.Code Ann. § 27-7-103 would deprive Mr. Harris of a reasonable opportunity to seek a new trial on the ground that the State improperly failed to turn over potentially exculpatory evidence before his 1988 trial.
Although Mr. Harris mistakenly filed a petition to reopen his post-conviction petition rather than filing a petition for a writ of error coram nobis, he sought a new trial based upon this newly discovered evidence shortly after he “discovered” it. While it is possible that a factual hearing with regard to these police investigative notes might have resulted in a determination that the statute of limitations should bar such a claim, under the facts as alleged in Mr. Harris’s petition, I am unprepared to find as a matter of law that his petition has not stated an adequate prima facie case for equitable tolling.
However, finding that Mr. Harris’s petition contains sufficient averments to warrant the invocation of the equitable tolling doctrine does not end the inquiry. To the contrary, the State’s primary argument for reversing the Court of Criminal Appeals
Accepting for purposes of argument the facts aré as alleged in Mr. Hands’s petition, then Mr. Harris had no direct knowledge that the authorities had located Ms. Hampton or that she had told them that on some date in September 1987 she had received roadside assistance from an individual matching Mr. Harris’s description, driving a car that matched the description of his vehicle. However, no one knows more about what transpired on the morning of September 8, 1987, than Mr. Harris. He knows the full extent of his culpability in Ms. Gouge’s disappearance and death, and he knows precisely what his activities were on September 8, 1987. Mr. Harris also has direct, personal knowledge regarding whether he actually stopped to help a stranded motorist on September 8, 1987.
Despite numerous opportunities both before and during his trial, neither Mr. Harris nor his lawyer told the police, the prosecuting attorneys, the trial judge, or the jury that he was helping a stranded motorist at the very time that the State claimed that he was killing Ms. Gouge and disposing of her body. In short, Mr. Harris never asserted an alibi defense regarding a stranded motorist in the proceedings that resulted in his conviction in 1988. Quite to the contrary, he provided a detailed account of his movements on the morning on September 8, 1987, that is irreconcilably inconsistent with his current alibi claim.
Mr. Harris has also provided no information regarding his efforts to find Ms. Hampton prior to the trial or in the first decade following his conviction and incarceration. He failed to indicate in his co-ram nobis petition that he ever informed the lawyers who were representing him that he stopped to help a stranded motorist. The petition is also silent with regard to any efforts that Mr. Harris made between September 8, 1987 and August 1998 to locate the stranded motorist whom he now claims he assisted on September 8, 1987.
To qualify as newly discovered evidence, the evidence must have been unknown to the defendant at the time of trial.
Furthermore, a decision by a petitioner to change defense strategy following an unfavorable verdict and to belatedly rely on evidence that was known or discoverable at or before the trial does not render the evidence newly discovered. United States v. Olender,
Now, sixteen years after his trial, Mr. Harris seeks coram nobis relief based on alleged newly discovered evidence regarding a defense he never asserted at trial. He was given a full and fair opportunity to assert all defenses available to him at trial, including an alibi defense, but he never claimed that he was assisting a stranded motorist on the morning of September 8, 1987. Mr. Harris has failed to present the courts with any persuasive reasons to justify excusing him from his tactical decision not to assert this defense at trial. United States v. McCord,
In criminal proceedings, the State, like the defendant, is entitled to a fair trial free from undue prejudice. State v. Pursley,
Finally, in order to obtain coram nobis relief under Tenn. Code Ann. § 40-26-105(b), a petitioner must demonstrate that the newly discovered evidence could not, with the exercise of reasonable diligence, have been discovered at or before the trial. In seeking a new trial, the defendant must establish in his petition that “he or his attorney [or she and her attorney] tried diligently to obtain the information prior to trial. A rather rigorous showing of diligence is demanded.” Raybin, § 33:32, at 495. Mr. Harris’s petition, however, is utterly and completely devoid of any indication of any effort on his part to locate Ms. Hampton prior to trial or for more than a decade after his conviction, much less an assertion of facts showing a dili
The factual averments in Mr. Harris’s petition are significantly deficient. The petition provides no specific facts setting forth a basis for excusing him from failing to assert the stranded motorist alibi defense at trial. It provides no specific facts demonstrating that neither he nor his trial counsel were aware of the evidence concerning the stranded motorist, if indeed the stranded motorist existed, prior to trial. It provides no specific facts demonstrating that he exercised reasonable diligence to obtain this evidence or that this evidence would not have been discoverable with the exercise of reasonable diligence. Finally, it contains no specific facts demonstrating that his failure to present evidence regarding his coming to the aid of a stranded motorist on the morning of September 8, 1987, was not due to his fault or negligence. Accordingly, the State is correct that even if Mr. Harris’s claim for coram nobis relief based on the evidence regarding the stranded motorist was entitled to equitable tolling, the substantive deficiencies in his petition provided the trial court with ample grounds to deny his petition for post-conviction relief without a hearing.
IY.
Based on my review of the record, I have concluded that the Court of Criminal Appeals erred by reversing the trial court’s- dismissal of Mr. Harris’s petition for writ of error coram nobis and by remanding the case with directions to conduct an evidentiary hearing. The trial court did not err by dismissing Mr. Harris’s petition without a hearing because it was deficient on its face. Accordingly, I would reverse the Court of Criminal Appeals and affirm the trial court’s February 8 and 11, 2005 judgments.
I am authorized to state that Justice Clark concurs in this opinion.
. United States v. Denedo, 556 U.S. -, -,
. Code of Tennessee §§ 3110 through 3118 (Relurn J. Meigs & William F. Cooper eds., E.G. Eastman & Co. 1858); State v. Mixon,
.Act of Mar. 8, 1955, ch. 166, § 1, 1955 Tenn. Pub. Acts 639 (codified as amended at Tenn-Code Ann. § 40-26-105 (2006)).
. Post-judgment motions pursuant to Tenn. R. Civ. P. 60.02 replaced writs of error coram nobis in most civil cases in 1971. Tenn. R. Civ. P. 60.02 advisory eomm'n cmt; see also Harris v. State,
. In early practice, it was customary for a person seeking relief under a writ of error coram nobis to first file a petition stating the reason or reasons why the petitioner was entitled to the writ. Thereafter, the petitioner would file separate assignments of error stating the grounds upon which he or she was seeking to reverse the judgment. Gilreath & Aderholt, § 402, at 453-54; Higgins & Crownover, § 1770, at 702. Over time, it became customary to combine the petition and the assignments of error and to consider both the sufficiency of the reason for allying for the writ and the merit of the assignments of error at the same time. Jacobs v. Silverman,
. See also Elliott v. R.C. McNairy & Co.,
. See also Johnson v. Russell,
. In all petitions filed pursuant to Tenn.Code Ann. § 40-26-105, the relief being sought is the setting aside of the judgment of conviction and the granting of a new trial. Tenn.Code Ann. § 40-26-105(c). In proper circumstances, the petitioner may also request that bail be set pending the new trial. Tenn.Code Ann. § 40-26-105(c).
. Writs of error coram nobis in civil cases have the same restriction. Roller v. Burrow,
. Act of Mar. 22, 1978, ch. 738, 1978 Tenn. Pub. Acts 658 (codified at Tenn.Code Ann. § 40-26-105(b)).
. Freshwater v. State,
. Regions Fin. Corp. v. Marsh USA, Inc., No. W2008-003230COA-R3-CV,
. Newsome v. State,
. State v. Vasques,
. See, e.g., Johnson v. Russell,
. State v. Vasques,
.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,
. Sample v. State,
. Sands v. State,
. Burford v. State,
. See also D.L. Grayson, 2 The Annotated Constitution and Code of Tennessee 859-60, 864 (Chattanooga, Times Print 1895) (noting that both before and after codification of the writ of error coram nobis it could be addressed through a motion to dismiss or a demurrer).
. See also Plummer v. State, No. M2008-00110-CCA-R3-CO,
. See Gibson's Suits in Chancery 5th, § 1325, at 686; Gilreath & Aderholt, § 402, at 437; Sam B. Gilreath, Caruthers' History of a Lawsuit, 402, at 437 (7th ed.1951); Lester B. Orfield, The Writ of Error Coram Nobis in Civil Practice, 20 Va. L.Rev. 423, 436 (1934).
. The question of whether State v. Brown is a correct interpretation of the requirements of the Due Process Clause of the federal constitution is not directly before us. Compare State v. Brown, 29 S.W.3d 427 (Tenn.2000) with State v. Brown, 29 S.W.3d at 436-445 (Holder, J. dissenting); 2 McCormick on Evidence § 252, at 165 n. 81 (Kenneth S. Broun ed., 6th ed.2006); see also Michael H. Graham, 2 Winning Evidence Arguments § 804:3 advocacy notes (2008). In a future case, this question may warrant consideration. Irrespective of the requirements of the federal constitution, whether State v. Brown,
. Because the trial court disposed of Mr. Harris’s petition without a hearing, it did not address the authenticity of the evidence regarding the alibi witness or the credibility of the witnesses presenting it.
. See, e.g., Seay v. City of Knoxville,