William Rolandus Keel v. State of Tennessee ( 2024 )

10/16/2024
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs September 10, 2024
WILLIAM ROLANDUS KEEL v. STATE OF TENNESSEE
Appeal from the Criminal Court for Davidson County
No. 2013-A-673 Angelita Blackshear Dalton, Judge
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No. M2024-00368-CCA-R3-ECN
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Petitioner, William Rolandus Keel, filed a pro se “Motion to Reopen Post Conviction
Petition in Conjunction with Writ of Error Coram Nobis” (“the Petition”).1 The trial court
found that the Coram Nobis Petition, on its face, failed “to establish that there is newly
discovered evidence that would give rise to coram nobis relief” and summarily dismissed
the Coram Nobis Petition. Discerning no reversible error, we affirm the summary dismissal
of the Coram Nobis Petition. Because Petitioner failed to comply with the statutory
requirements for seeking appellate review of the denial of the Motion to Re-open, we lack
jurisdiction to consider the Motion. Tenn. Code Ann. § 40-30-117(c).
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and JOHN W. CAMPBELL, SR., JJ., joined.
William Rolandus Keel, Whiteville, Tennessee, pro se.
Jonathan Skrmetti, Attorney General and Reporter; Edwin Alan Groves, Jr., Assistant
Attorney General; Glenn R. Funk, District Attorney General; and Janice Norman, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
The Davidson County Grand Jury indicted Petitioner with two counts of rape of a
child for offenses committed against his then stepdaughter (“the victim”). State v. Keel,
No. M2016-00354-CCA-R3-CD, 2017 WL 111312, at *1 (Tenn. Crim. App. Jan. 11,
1
When referring only to the motion to reopen the post-conviction proceeding, we will use “the
Motion to Reopen.” When referring only to error coram nobis relief, we will use “the Coram Nobis
Petition.” We will use “the Petition” to refer to both.
2017), perm. app. denied (Tenn. Apr. 13, 2017). The first trial in March 2015 resulted
in a hung jury and a mistrial. Id. In the second trial in December 2015, Petitioner was
convicted of two counts of rape of a child and sentenced to thirty years at one hundred
percent service on each count. Id. at *2. The trial court aligned the sentences consecutively
for an effective term of sixty years’ incarceration. Id.Direct Appeal
On direct appeal, in relevant part, Petitioner claimed that the trial court erred by
denying his motion to compel production of the victim’s Department of Children’s
Service (“DCS”) records “from March 2012 to current[.]” Id. at *3. Petitioner argued
that “because he already had possession of the victim’s DCS records from 2008 until
early 2012, he had ‘a good faith basis to believe that there would be additional
statements in the records from March 2012 to current that would be material to [his]
defense.’” Id. The trial court, following an in camera review of the records, had denied
Petitioner’s request, finding that “the records contain no exculpatory or material
information that [Petitioner] is entitled to have.” Id. This court reviewed the records
and determined that “[b]ecause the records contained no information that would likely
have changed the outcome” of Petitioner’s trial, the trial court did not err in denying
Petitioner’s request to review the records. Id. This court also determined that no
violation of Brady v. Maryland, 373 U.S. 83 (1963), occurred and affirmed the
judgments of conviction. Id. The Tennessee Supreme Court denied further review. Id.First Petition for Post-Conviction Relief
Petitioner timely filed a pro se post-conviction relief petition, which was later
amended through appointed counsel. Keel v. State, No. M2019-00612-CCA-R3-PC, 2020
WL 5407489 at *1 (Tenn. Crim. App. Sept. 9, 2020), no perm. app. filed. Following a
trifurcated evidentiary hearing, the post-conviction court addressed several motions filed
by Petitioner, including a pro se “Motion to Treat New Evidence in Post-Conviction as
Error Coram Nobis Petition.” Id. at *5. Petitioner asked the court to consider school
records of his children, which he claimed showed that Petitioner and his family lived in
Wilson County, not Davidson County, during the time the rapes were alleged to have
occurred. The post-conviction court “concluded that the school records were not newly
discovered evidence because the Petitioner was aware they existed at the time of the trial
and failed to obtain the records at that time” and denied the motion for a writ of error coram
nobis. Id. The post-conviction court also held that Petitioner had not shown that trial
counsel was ineffective and denied post-conviction relief. Id. at *6.
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Petitioner appealed, claiming that “the post-conviction court denied him a full and
fair post-conviction hearing.” Id. at *1. This court determined that “the post-conviction
court correctly disposed of the evidentiary motions, the error coram nobis claim, and the
request to recall [c]ounsel.” Id. at *8. However, after acknowledging “the convoluted
course of this petition and the challenges attendant to [tri]furcated hearings,” this court
determined that Petitioner “was never allowed the opportunity to testify about the reasons
the Petitioner believed [c]ounsel was ineffective at trial as it related to the motion for new
trial and on appeal.” The judgment of the post-conviction court was affirmed in part,
reversed in part, and the case was remanded for a hearing to allow the Petitioner to testify
concerning the allegations in his petition. Id.Post-Conviction Hearing Following Remand
During the post-conviction hearing following remand, Petitioner testified that he
wanted appellate counsel to raise “in the motion for new trial and on appeal” the trial
court’s exclusion of a recording of a phone call that Petitioner and the victim’s mother
placed to the victim. Keel v. State, No. M2022-00089-CCA-R3-PC, 2023 WL 3862777,
at *5 (Tenn. Crim. App. June 7, 2023), perm. app. denied (Tenn. Oct. 13, 2023). Petitioner
“stated that he asked the victim during the second trial if her grandmother had told her that
she would go to jail if she ‘told the police, told the [j]udge or the State or anybody anything
different from what they talked about[,]’ and the victim ‘said yes, on the record.’”
Petitioner said that he attempted to introduce at the second trial a recording of the phone
call to “back it up[,]” but the trial court sustained the State’s objection “because a copy [of
the recording] had not been provided to the State in discovery and because it was not a
prior inconsistent statement.” Id. at *6. The post-conviction court found “that trial counsel
made an informed decision based on adequate preparation in his determination of which
issues to raise on appeal, and, as such, that the content of the recording had ‘no bearing on
the existence of any fact that is of consequence’” to the determination of trial counsel’s
effectiveness in his representation of Petitioner. Id. at *8. This court affirmed the post-
conviction court’s denial of relief. Id. at *1.
Current Petition
Petitioner mailed a letter addressed to the Davidson County Criminal Court Clerk,
a letter addressed to the trial judge, a pro se “Motion for Consideration of Ex[]Parte Order,”
an “Ex[]Parte Order,” and the Petition, all of which were filed on February 7, 2024. In the
letter to the court clerk, Petitioner asked if the clerk “can give the ex[]parte Motion, Order,
and letter to [the coram nobis judge] herself without the State receiving a copy; for
ex[]parte means without the opposing party’s presence.” The letter to the coram nobis
judge states that “there is no need for to have a hearing” because “the evidence itself is
sufficient to vacate [Petitioner’s] sentence.”
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The “Motion for Consideration of Ex[]Parte Order” requests the court to vacate
Petitioner’s sentence “not only under due process but also for [j]udicial [e]conomy”
because “[w]e all know that there is no way a jury would have been unanimous in their
decision of guilt if this evidence that was withheld and suppressed by the State had been
given to the [c]ourt in it’s in camera review and [Petitioner] to present before the jury.”
The motion does not show that it was served on the State.
The Ex Parte Order had two boxes, one for the trial court to check to “[v]acate the
Petitioner’s case in it’s entirety due to the evidence being insufficient to support the
conviction” and a second box for the court to check “to [s]et [a]side Petitioners [j]udgments
and remand for a New Trial.” Understandably, the Ex Parte Order was never executed by
the trial court.
In the Petition, Petitioner sought “to reopen post-conviction with incorp[o]rating the
Writ of Error Coram Nobis [p]ursuant to [Nunley v. State, 552 S.W.3d 800 (Tenn. 2018)]”
because the State committed a Brady violation. Petitioner claimed that he had “[n]ewly
[d]iscovered [e]vidence that the State withheld from the [c]ourt and [Petitioner].” What
Petitioner claimed to be newly discovered evidence consisted of three items:
1. Certain of the victim’s DCS records, which were attached as “Exhibit AP” to the
Petition, and which Petitioner claims the State withheld in violation of Brady;
2. A statement “recently” made by the victim’s uncle to one of Petitioner’s prior
attorneys, in which the uncle stated that he knew that the victim’s rape
allegations against Petitioner were untrue. The uncle claimed that the victim and
the victim’s grandmother (the uncle’s mother) had also falsely accused the
victim’s uncle of raping the victim. Petitioner claimed that this statement
“showed intent for the grandmother to force [the victim] to lie on [Petitioner].”
The persistent assertion throughout the Petition is that the victim’s grandmother
committed perjury at the trial and coerced the victim into lying about Petitioner
so that the grandmother could obtain parental rights for the victim. Petitioner
claimed that the State violated his due process rights by knowingly using
perjured testimony.
3. Nashville Electric System billing records, which Petitioner claimed
demonstrated that he and his family lived in Wilson County and that the
Davidson County Criminal Court did not have subject matter jurisdiction to try
him for the rapes.
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Order Summarily Dismissing Petition
In its February 20, 2024 Order (“the 2024 Order”), the trial court noted that it was
issuing “this order regarding coram nobis relief.” The 2024 Order did not specifically
address the Motion to Reopen. The court found that “[b]ecause the [Coram Nobis P]etition
was filed within one (1) year of the judgment of the trial court becoming final, this [c]ourt
finds that the [Coram Nobis P]etition is timely.” In the 2024 Order, the court stated:
In the present case, the Petitioner claims that the State committed a
Brady violation by withholding what he characterizes as exculpatory
evidence. The Petitioner claims that upon requesting records of the victim .
. . from [DCS], although the [c]ourt conducted an in camera review of the
records, the State suppressed some of the records. In addressing the trial
court’s litigation of issues related to DCS records, the [c]ourt of [c]riminal
[a]ppeals noted that, in his motion for the production of the DCS records
from March 2012 to current, the Petitioner indicated that he already had
records from 2008 through early 2012. [] Keel, 2017 WL 111312 [at] *3.
Because the Petitioner averred to possession of records from 2008 through
early 2012 in his motion for production of records in the trial of this matter,
and because the trial court fully litigated matters related to DCS records from
March 2012 through current, this [c]ourt finds that the [Coram Nobis
P]etition, on its face, fails to demonstrate that the DCS records are newly
discovered evidence outside the record that have not been previously
litigated. This [c]ourt further finds that the [Coram Nobis P]etition, on its
face, fails to demonstrate that the State committed a Brady violation. This
[c]ourt notes that the records complained of in the [Coram Nobis P]etition
were records from 2011, Exhibit AP to the [P]etition, which covers the
timeframe of records the Petitioner admitted to having upon the filing of his
motion for production of records in the trial court.
The Petitioner next claims that he is entitled to relief because the State
lacked jurisdiction to prosecute the charges against him. To this issue, this
[c]ourt finds that the [Coram Nobis P]etition, on its face, fails to show newly
discovered evidence that would demonstrate that the State lacked jurisdiction
to prosecute the charges against him.
Finally, the Petitioner claims that he is entitled to relief based on a
statement from . . . [the victim’s uncle]. The Petitioner asserts that [the
victim’s uncle] has stated that “[h]e knows [the Petitioner] to be innocent
because they, (meaning his mother . . . and [the victim]), accused him of
raping [the victim].” First, this [c]ourt finds that the [Coram Nobis P]etition,
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on its face, has failed to demonstrate that the statement of [the victim’s uncle]
is newly discovered evidence to which the Petitioner did not have access in
the trial of this matter. Secondly, this [c]ourt finds that the [Coram Nobis
P]etition, on its face, fails to demonstrate that statements of [the victim’s
uncle] regarding allegations against [the victim’s uncle] would have been
admissible in the trial of this case, thereby resulting in a favorable outcome
for the Petitioner. Thirdly, this [c]ourt finds that the [Coram Nobis P]etition,
on its face, fails to demonstrate the statement of [the victim’s uncle] to be
credible.
(footnotes omitted).
Although the trial court summarily dismissed the Petition, the order is specifically
limited to the Coram Nobis Petition. Following the summary dismissal of the Petition,
Petitioner filed a notice of appeal pursuant to Tennessee Rule of Appellate Procedure 3.
Petitioner did not file an application in this court seeking permission to appeal the dismissal
of his motion to reopen his post-conviction petition pursuant to Tennessee Code Annotated
section 40-30-117(c).
ANALYSIS
We glean from Petitioner’s brief that Petitioner claims that the trial court
“committed plain error” or abused its discretion by: (1) concluding that the DCS records
in Exhibit AP were not newly discovered evidence; (2) failing to find a Brady violation
based on the State’s withholding DCS records and not providing “the video with audio of
both trials”; (3) concluding the victim’s uncle’s statements were neither newly discovered
nor credible evidence; (4) concluding that Petitioner failed to appeal to the supreme court
and provide “notice of the writ” to the State; and (5) failing to find that the trial court lacked
jurisdiction to try Petitioner.
The State claims that the trial court’s summary dismissal of the Petition “had the
substantive effect” of denying both the Coram Nobis Petition and the Motion to Reopen.
The State also argues that Petitioner failed to “seek permission” from this court to
appeal the denial of the Motion to Reopen and therefore this court should limit its review
to the denial of the Coram Nobis Petition which is both time-barred and meritless. We
agree with the State.
I. Motion to Reopens
A motion to reopen a post-conviction petition is only available if a petitioner can
establish “by clear and convincing evidence that the petitioner is entitled to have the
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conviction set aside or the sentence reduced” and the claim: (1) “is based upon a final ruling
of an appellate court establishing a constitutional right that was not recognized as existing
at the time of trial”; (2) is based upon new scientific evidence that establishes the petitioner
is actually innocent; or (3) is based upon a previous sentence that was enhanced due to a
previous conviction which was later found to be invalid. Tenn. Code Ann. § 40-30-117(a);
Keen v. State, 398 S.W.3d 594, 607 (Tenn. 2012). A post-conviction court’s denial of a
motion to reopen a post-conviction petition “does not afford a petitioner an appeal as of
right, see Tennessee Rule of Appellate Procedure 3(b), rather, such denial may be
challenged on appeal only by the filing of an application for permission to appeal no later
than thirty days after the denial by the post-conviction court.” Carter v. State, No. W2022-
00474-CCA-R3-PC, 2022 WL 17547235, at *4 (Tenn. Crim. App. Dec. 9, 2022), perm.
app. denied (Tenn. Apr. 18, 2023); see Tenn. Code Ann. § 40-30-117(c); see also Tenn.
Sup. Ct. R. 28, § 10(B). However, we may treat a notice of appeal as an application for
permission to appeal if the notice of appeal is in substantial compliance with Tennessee
Code Annotated § 40-30-117(c). Graham v. State, 90 S.W. 3d 687, 691 (Tenn. 2002). To
be in substantial compliance, the contents of the notice of appeal must include the date and
judgment from which the petitioner seeks review, the issue which the petitioner seeks to
raise, and the reasons why the appellate court should grant review.” Id.Because Petitioner’s notice of appeal did not substantially comply with the
application requirement of Tennessee Code Annotated section 40-30-117(c), we lack
jurisdiction to consider the trial court’s dismissal of the Motion to Reopen. Carter, 2022
WL 17547235, at *5; see Phillips v. State, No. M2020-00699-CCA-R3-PC, 2021 WL
1592522, at *4 (Tenn. Crim. App. Apr. 23, 2021), perm. app. denied (Tenn. Sept. 15,
2021).
II. Error Coram Nobis
Tennessee Code Annotated section 40-26-105(b) provides that coram nobis relief is
available in criminal cases as follows:
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.
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A writ of error coram nobis in criminal cases 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 writ comes “with stringent statutory requirements.” Clardy v.
State, 691 S.W.3d 390, 400 (Tenn. 2024). “In keeping with the extraordinary nature of the
writ, the petition must be pled with specificity.” Id. The writ “may be granted only when
the coram nobis petition is in writing, describes ‘with particularity’ the substance of the
alleged newly discovered evidence, and demonstrates that it qualifies as newly discovered
evidence.” Nunley, 552 S.W.3d at 816 (citation omitted)). “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(a).
A. Statute of Limitations
A petition for a writ of coram nobis must be filed within one year of the judgment
becoming final in the trial court. Mixon, 983 S.W.2d at 670. A judgment becomes final
“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.” Harris v. State, 301 S.W.3d 141,
144 (Tenn. 2010), overruled on other ground by Nunley, 552 S.W.3d at 828. “Timeliness
under the statute of limitations . . . is not an affirmative defense; rather, it is one of the
essential elements of a coram nobis claim.” Clardy, 691 S.W.3d at 401.
If the coram nobis petition does not show on its face that it has been filed within the
one-year statute of limitations, the petition must set forth with particularity facts
demonstrating that the prisoner is entitled to equitable tolling of the statute of limitations:
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. at 829.
As the Tennessee Supreme Court has stated recently, “new evidence of actual
innocence” must be “clear and convincing.” Clardy, 691 S.W.3d at 407-408. The supreme
court explained the clear and convincing standard as:
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To meet the clear and convincing standard, the trial court must
determine that the evidence offered . . . is not vague and uncertain. The clear
and convincing evidence standard is more exacting than preponderance of
the evidence but less exacting than beyond a reasonable doubt, and it requires
that there [be] no serious or substantial doubt about the correctness of the
conclusions drawn from the evidence.
Id. at 408 (quoting State v. Jones, 450 S.W.3d 866, 893 (Tenn. 2014)). Thus, new evidence
of actual innocence, if credited, should leave the trial court with no “serious or substantial
doubt that the petitioner is actually innocent.” Id. If a petition for a writ of error coram
nobis “fails to show on its face either that it has been timely filed in accordance with
Tennessee Code section 27-7-103 or specific facts showing why the petitioner is entitled
to equitable tolling of the statute of limitations, the trial court is within its discretion to
summarily dismiss it.” Nunley, 552 S.W.3d at 829 (emphasis added).
In this case, Petitioner’s judgments of conviction were entered on January 19, 2016.
The statute of limitation is calculated from the date of finality in the trial court. “ If a post-
trial motion is timely filed, the judgment becomes final upon entry of an order disposing
of the post-trial motion.” Mixon, 983 S.W.2d at 670. The order denying Petitioner’s
motion for new trial was entered on February 9, 2016. The Petition was filed on February
7, 2024, nearly eight years after the judgments became final. The Coram Nobis Petition
failed to show on its face that it was filed within the statute of limitations and was therefore
subject to “summary dismissal,” “without discovery or an evidentiary hearing,” unless the
facts supporting the tolling of the statute of limitations appeared on the face of the Petition.
Nunley, 552 S.W.3d at 806. As we discuss further below, the Coram Nobis Petition does
set forth facts demonstrating that Petitioner is entitled to equitable tolling of the statute of
limitations.
B. DCS records in Exhibit AP
Petitioner claims that the victim’s DCS records attached to the Petition as Exhibit
AP are newly discovered evidence. The trial court found that
[b]ecause the Petitioner averred to possession of records from 2008 through
early 2012 in his motion for production of records in the trial of this matter,
and because the trial court fully litigated matters related to DCS records from
March 2012 through current, this [c]ourt finds that the [Coram Nobis
P]etition, on its face, fails to demonstrate that the DCS records are newly
discovered evidence outside the record that have not been previously
litigated.
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This court stated in its opinion on direct appeal that Petitioner claimed in a pretrial
motion that because he “had possession of the victim’s DCS records from 2008 until early
2012, he had ‘a good faith basis to believe that there would be additional statements in the
records from March 2012 to current that would be material to [his] defense.’” Keel, 2017
WL 111312, at *3.
We have examined Exhibit AP, which consists of DCS records from June 29, 2011,
to July 27, 2011. Both the trial court and this court have previously determined that
Petitioner had these records at the time of trial. Petitioner has failed to show the DCS
records in Exhibit AP were newly discovered evidence. Additionally, the records, even if
they were newly discovered, would not “clearly and convincingly” show that Petitioner is
actually innocent of the underlying crime and are not sufficient to justify equitable tolling
of the statute of limitations. Clardy, 691 S.W.3d at 394-95.
C. Alleged Brady violation
Petitioner alleged that the State committed a Brady violation by withholding the
records in Exhibit AP. Petitioner made substantially the same claim in his direct appeal.
This court stated:
[t]he trial court conducted an in camera review of the records and determined
that they contained “no exculpatory or material information.” Our review of
those same records persuades us that the trial court reached the correct
conclusion. Because the records contained no information that would likely
have changed the outcome of [Petitioner]’s trial, no Brady violation
occurred[.]
Keel, 2017 WL 111312, at *3.
Petitioner is not entitled to equitable tolling based upon this claim. Moreover, we
note that our supreme court has held that a post-conviction proceeding, rather than an error
coram nobis proceeding based on newly discovered evidence, is the “appropriate
procedural mechanism” to seek relief for a Brady violation. Nunley, 552 S.W.3d at 819.
As stated above, because Petitioner failed to comply with the application requirement of
Tennessee Code Annotated section 40-30-117(c), we lack jurisdiction to consider this
claim in the context of post-conviction relief.
D. Alleged Statement by Victim’s Uncle
Petitioner claims that the victim’s uncle recently told his prior counsel that he knows
Petitioner is innocent because his mother and the victim accused the uncle of raping the
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victim. That statement, even if true, does not “clearly and convincingly” show that
Petitioner is actually innocent of the underlying crime and is not sufficient to justify
equitable tolling of the statute of limitations. Clardy, 691 S.W.3d at 394-95.
E. Challenge to Subject Matter Jurisdiction
Petitioner claimed that the trial court did not have subject matter jurisdiction
because he lived in Wilson County, not Davidson County, when the rapes occurred. He
claimed that the 2014 and 2015 Nashville Electric System records for Apartments A and
B of 3008 Hillside Road, Nashville, showed that he was not guilty. The records were
available at the time of the trial and are not newly discovered evidence. The records also
do not show that Petitioner is actually innocent of the underlying crime and are not
sufficient to justify equitable tolling of the statute of limitations. Id.
CONCLUSION
We lack jurisdiction to consider the trial court’s dismissal of the Motion to Reopen
and dismiss the appeal in this regard. Moreover, relative to the coram nobis proceedings,
the Coram Nobis Petition was not timely filed, and Petitioner is not entitled to equitable
tolling of the statute of limitations. Therefore, the trial court did not abuse its discretion in
summarily dismissing the Coram Nobis Petition. We affirm the judgment of the trial court.
_________________________________
ROBERT L. HOLLOWAY, JR., JUDGE
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