George Campbell, Jr. v. State of Tennessee ( 2008 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
GEORGE CAMPBELL JR. v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Shelby County
No. 93-00428; 93-00429 W. Mark Ward, Judge
No. W2007-00820-CCA-R3-CO - Filed May 28, 2008
The Petitioner, George Campbell, Jr., appeals the trial court's denial of his petition for coram
nobis relief. The State has filed a motion requesting that this Court affirm the trial court's denial of
relief pursuant to Rule 20, Rules of the Court of Criminal Appeals. We conclude that the State's
motion is meritorious. Accordingly, we grant the State's motion and affirm the judgment of the lower
court.
Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of the
Court of Criminal Appeals
JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which ALAN E. GLENN and J.C.
MCLIN , JJ., joined.
George Campbell, Jr., pro se.
Robert E. Cooper, Jr., Attorney General & Reporter; Michael Moore, Solicitor General; Lacy
Wilber, Assistant Attorney General, for the appellee, State of Tennessee.
MEMORANDUM OPINION
The Petitioner, George Campbell, Jr., was convicted by a jury of felony murder and
aggravated assault. See George Campbell, Jr. v. Bruce Westbrooks, Warden, No. W2002-02086-
CCA-R3-CO, 2003 WL 22309471, *1 (Tenn. Crim. App., at Jackson, Oct. 6, 2003). For these
convictions, Petitioner was sentenced to life plus ten years. See George Campbell, Jr. v. State, No,
W2000-00703-CCA-R3-PC, 2001 WL 1042112, *1 (Tenn. Crim. App., at Jackson, Sep. 10, 2001),
perm. to appeal denied, (Tenn. Dec. 27, 2001). His convictions and sentences were affirmed on
direct appeal. See State v. George Campbell, Jr., No. 02C01-9408-CR-00165, 1996 WL 368224,
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at *1 (Tenn. Crim. App., at Jackson, June 28, 1996), perm. to appeal denied, (Tenn. Jan. 6, 1997).
The Petitioner later sought post-conviction relief, claiming that counsel was ineffective. See George
Campbell, Jr. v. State, No. W2000-00703-CCA-R3-PC, 2001 WL 1042112, *1. The trial court
denied relief, and this Court affirmed the decision of the lower court on September 10, 2001. Id.
Petitioner was later unsuccessful in his attempt for relief via the writ of habeas corpus. See George
Campbell, Jr. v. Bruce Westbrooks, Warden, No. W2002-02086-CCA-R3-CO, 2003 WL 22309471,
*1 (affirming lower court’s denial of habeas corpus relief).
On February 16, 2007, the Petitioner filed a “motion of writ of error coram nobis.” In the
motion, the Petitioner alleged that newly discovered evidence may have resulted in a different
judgment if the evidence had been admitted during the Petitioner’s trial. Specifically, the Petitioner
alleged that “on or about August, 2005, petitioner received ‘Verbatum’ – transcripts of the only
alleged prosecution witness, Lontina McGary, during the trial of Vandor Moore (shooter).” The
Petitioner averred that Lontina McGary’s testimony at this trial indicated that the indictments against
the Petitioner were procured through fraud. The Petitioner further asserted that he was without fault
in failing to present this evidence in a more timely manner.
On March 22, 2007, the lower court entered an order dismissing the petition for writ of error
coram nobis relief. Specifically, the lower court found:
. . . Petitioner fails to allege in his Petition the substance of the fraud or false
testimony, fails to allege that this “newly discovered evidence” may have resulted in
a different verdict, and failed to allege why he waited 18 months after discovering
this “newly discovered evidence” to file the present Petition.
...
This Court takes notice that Petitioner’s present petition for writ of error
coram nobis was filed outside the one-year statute of limitations prescribed by T.C.A.
§ 27-7-103 and more than 18 months after he alleges he discovered the new evidence.
Under the circumstances of this case where Petitioner fails to allege in his Petition
the substance of the fraud or false testimony, fails to allege that this “newly
discovered evidence” may have resulted in a different verdict, fails to allege any
grounds for tolling the statute of limitations, fails to specifically state why he was
without fault in failing to present the evidence in a more timely manner, and fails to
allege why he waited 18 months after discovering this “newly discovered evidence”
to file the present Petition, this Court finds that this is not a proper case for
appointment of counsel or for an evidentiary hearing.
The Petitioner filed a notice of appeal document on March 29, 2007.
The State has filed a motion requesting that this Court affirm the lower court's denial of relief
pursuant to Rule 20, Rules of the Tennessee Court of Criminal Appeals. As basis for its motion, the
State asserts that the petition is time-barred. The State asserts that the present motion was not filed
until more than twelve years after the statute of limitations ran. The State further asserts that the
Petitioner has failed to demonstrate that due process requires the tolling of the statute of limitations
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in this case. Specifically, the State asserts that the Petitioner’s health problems in 2005 had no
bearing on the one-year statute of limitations that began to run in 1994. Finally, the State asserts that
Lontina McGary presented false testimony at trial. The Petitioner fails to offer proof in support of
this allegation.
Relief by petition for writ of error coram nobis is provided for in Tennessee Code Annotated
section 40-26-105. That statute provides, in pertinent part:
The relief obtainable by this proceeding shall be confined to errors dehors the record
and to matters that were not or could not have been litigated on the trial of the case,
on a motion for a new trial, on appeal in the nature of a writ of error, on writ of error,
or in a habeas corpus proceeding. Upon a showing by the defendant that the
defendant was without fault in failing to present certain evidence at the proper time,
a writ of error coram nobis will lie for subsequently or newly discovered evidence
relating to matters which were litigated at the trial if the judge determines that such
evidence may have resulted in a different judgment, had it been presented at the trial.
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.
T.C.A. § 40-26-105. The writ of error coram nobis is an “extraordinary procedural remedy,” filling
only a “slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn.1999). The
“purpose of this remedy ‘is to bring to the attention of the court some fact unknown to the court
which if known would have resulted in a different judgment.’” State v. Hart, 911 S.W.2d 371, 374
(Tenn. Crim. App. 1995) (quoting State ex rel. Carlson v. State, 219 Tenn. 80, 407 S.W.2d 165, 167
(1966)). A petition for writ of error coram nobis relief must be filed within one year of the time
judgment becomes final in the trial court. See T.C.A. § 27-7-103.
The Petitioner asserts that inconsistencies in Lontina McGary’s trial testimony and her
testimony during the trial of Vandor Moore establish that his convictions were based upon fraud.
The Petitioner further asserts that he was unable to present this “newly discovered evidence” in a
more timely manner due to his suffering from “chronic diabetes” and the onset of “a series of mini
strokes.” Initially, we acknowledge that it is clear that the Petitioner's petition was filed many years
after the statute of limitations had run. The Petitioner has failed to provide any evidence of his
medical disability to support his argument that the delay in filing the petition was unavoidable.
Although due process may require that the statute of limitations for filing a petition for writ of error
coram nobis be tolled, see Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001), nothing in the record
implicates any due process concerns that would require that the statute of limitations be tolled.
Accordingly, the trial court properly dismissed the coram nobis petition as time-barred.
Additionally, upon a review of the transcript attached to the Petitioner’s application and the facts as
recited in this Court’s 1996 opinion affirming the Petitioner’s convictions, we discern no evidence
of fraud as alleged by Petitioner. See State v. George Campbell, Jr., No. 02C01-9408-CR-00165
(Tenn. Crim. App., at Jackson, Jun. 28, 1996), perm. to appeal denied, (Tenn. Jan. 6, 1997). We
conclude, therefore, that the trial court properly denied the relief sought by the Petitioner.
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When an opinion would have no precedential value, the Court of Criminal Appeals may
affirm the judgment or action of the trial court by memorandum opinion when the judgment is
rendered or the action taken in a proceeding without a jury and such judgment or action is not a
determination of guilt, and the evidence does not preponderate against the finding of the trial judge.
See Tenn. R. Ct. Crim. App. 20. We conclude that this case satisfies the criteria of Rule 20 .
Accordingly, it is ordered that the State's motion is granted. The judgment of the trial court is
affirmed in accordance with Rule 20 , Rules of the Court of Criminal Appeals.
___________________________________
JOHN EVERETT WILLIAMS, JUDGE
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