ROBERT L. HOLLOWAY, Jr., Judge.
Laquan Napoleon Johnson ("the Petitioner") appeals from the denial of his Petition for Writ of Error Coram Nobis ("the petition"). The coram nobis court interpreted the petition to allege an error coram nobis claim as well as a post-conviction claim. It summarily denied the error coram nobis claim and dismissed the post-conviction claim as time-barred.
On November 17, 2011, the Petitioner entered guilty pleas to one count of sale of cocaine over .5 grams and one count of sale of cocaine in violation of the drug-free school zone law. On March 27, 2012, the Petitioner was sentenced to an effective 12 years in the Tennessee Department of Correction. Judgments of conviction were entered on April 3, 2012. There is no indication in the record that the Petitioner filed any post-trial motions or an appeal.
On January 4, 2013, the District Attorney General sent a letter to the Petitioner in response to the Petitioner's Freedom of Information Request and Public Records Request. Attached to the letter was a CD containing the State's case file for the Petitioner's convictions. Based on the information contained in that case file, the Petitioner filed a pro se Petition for Writ of Error Coram Nobis on January 6, 2014, alleging newly discovered evidence in the context of
In addition to the error coram nobis claim, the petition included arguments that trial counsel was ineffective. First, the Petitioner asserted that trial counsel was ineffective for failing to "properly investigate the facts, circumstances and the constitutional law that applies to Petitioner's case." Second, the Petitioner contended that trial counsel was ineffective for failing to file a motion to suppress "unconstitutional evidence derived from the ba[d] faith acts of the undercover officers of the State. . . ."
In its Amended Response to Petition for Writ of Error Coram Nobis, the State argued that the petition should be dismissed because the Petitioner did not specifically identify the newly discovered evidence that formed the basis of his coram nobis claim. Additionally, the State contended that the Petitioner should have filed his claim of ineffective assistance of counsel in a post-conviction petition and, because the post-conviction claim was filed more than one year from the date his sentence became final, it was time-barred.
The coram nobis court summarily denied the petition "based on the record as a whole and the fact that [the Petitioner's] petition lacked specificity about any newly discovered evidence." As to the Petitioner's claim of ineffective assistance of counsel, the coram nobis court interpreted the argument to raise a post-conviction claim and concluded that the claim was time-barred. This timely appeal followed.
On appeal, we interpret the Petitioner's brief to raise the following issues: (1) whether the coram nobis court abused its discretion when it summarily denied the petition; and (2) whether trial counsel was ineffective.
Tennessee Code Annotated section 40-26-105 provides relief in criminal cases by petition for error coram nobis and states in pertinent part:
Tenn. Code Ann. § 40-26-105(b) (2014). Even though the language of the statute uses the term "trial," our supreme court has held that the writ of error coram nobis is available to challenge a guilty plea.
The writ of error coram nobis is "an extraordinary procedural remedy," providing relief in only a limited number of cases.
A petition for writ of error coram nobis should recite: "(a) the grounds and 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) 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."
Petitions for writ of error coram nobis are subject to a one-year statute of limitations. Tenn. Code Ann. § 27-7-103 (2014);
In certain circumstances, due process considerations may require tolling the statute of limitations.
The State bears the burden of raising the statute of limitations as an affirmative defense. Id. However, the State's failure to do so will not result in a waiver "if the opposing party is given fair notice of the defense and an opportunity to rebut it. . . ."
In this case, the State incorrectly claims that it specifically pleaded the statute of limitations as an affirmative defense to the coram nobis claim in the court below. The State did affirmatively plead the statute of limitations as to the Petitioner's post-conviction claim, but it did not do so for the error coram nobis claim. Nevertheless, in the petition, the Petitioner contended that due process should toll the statute of limitations. However, even though the Petitioner requested due process tolling, he made no argument in the petition or in his brief in support of that request. Therefore, in light of the Petitioner's request for due process tolling, the statute of limitations defense is not waived.
The Petitioner argues that his petition was timely filed because it was filed "within one year of the newly discovered information and evidence." However, the Petitioner incorrectly calculates the statute of limitations. The statute of limitations is computed from the date the judgement of the trial court becomes final, not the date the Petitioner received the newly discovered evidence.
Statute of limitations defense notwithstanding, we will address the merits of the Petitioner's error coram nobis claim. The Petitioner claimed that he received "newly discovered information and evidence" in the case file from the District Attorney General's office. However, he failed to specifically identify the newly discovered evidence in his petition. Instead, he simply referenced the case file as a whole. The file contains the Petitioner's indictment; Tennessee Bureau of Investigation Official Forensic Chemistry Reports; the Plea of Guilty and Waivers of Jury Trial and of Appeal; the order directing the Petitioner to appear for sentencing, along with unsigned transportation orders; the presentence report; judgment sheets for the instant convictions, as well as convictions from 2003; notes and a "narcotics investigation log of events" from the Putnam County Sheriff's Department; correspondence from the District Attorney General's Office to the detective in charge of the investigation notifying him of the grand jury hearing; a "Criminal Case Cover Sheet;" the Petitioner's pro se Demand for Speedy Trial; the Incident Reports for the charged offenses; trial counsel's discovery request; the State's letter to trial counsel granting him an "open file" review; and a fax sent to trial counsel dated November 7, 2011, stating that the State would not offer the Petitioner a plea. The petition did not identify which of these documents was newly discovered. Therefore, it did not recite "the grounds and nature of the newly discovered evidence,"
In his brief, the Petitioner argues that trial counsel was ineffective for "failing to properly investigate prior to advising [the Petitioner] to enter into a guilty plea" and "counsel was ineffective for failing to properly and adequately litigate [the Petitioner's] [c]onstitutional [c]laims and [c]hallenges in violation of the [F]ifth, [S]ixth, and [F]ourteenth [A]mendment rights to the U.S. Constitution and the corresponding articles and sections of the Tennessee Constitution."
We first note that ineffective assistance of counsel is not an appropriate ground for relief pursuant to a writ of error coram nobis.
For the foregoing reasons, we affirm the judgment of the coram nobis court.