Larry Lee Johnson v. State of Tennessee

09/09/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs June 1, 2021
LARRY LEE JOHNSON v. STATE OF TENNESEE
Appeal from the Criminal Court for Shelby County
No. 98-06749 James M. Lammey, Jr., Judge
No. W2020-00753-CCA-R3-ECN
The Petitioner, Larry Lee Johnson, appeals from the Shelby County Criminal Court’s
summary dismissal of his petition for writ of error coram nobis, wherein he claimed that
first coram nobis counsel refused to amend the original coram nobis petition after discovery
of two witnesses’ statements that might have led to a different result had they been
available at trial. The Petitioner contends that the coram nobis court erred by summarily
dismissing his petition as having been untimely filed and for failing to state a cognizable
claim for relief. Following our review, we affirm the judgment of the coram nobis court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and J. ROSS DYER, JJ., joined.
Joseph A. McClusky, Memphis, Tennessee, for the appellant, Larry Lee Johnson.
Herbert H. Slatery III, Attorney General and Reporter; Edwin Alan Groves, Jr., Assistant
Attorney General; Amy P. Weirich, District Attorney General; and D. Justin Prescott,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
This case relates to the November 3, 1997 shooting death of Kelvert Hailey (“the
victim”) that took place on Levi Road in Memphis. Thereafter, the Petitioner and his
co-defendant Johnie Jefferson were tried jointly for the victim’s murder. See State v.
Johnie Jefferson and Larry Johnson, Nos. W1999-00747-CCA-R3-CD and W2000-01970-
CCA-R3-CO, 2001 WL 1218287, at *1 (Tenn. Crim. App. Oct. 21, 2001), perm. app.
denied (Tenn. Mar. 11, 2002).
At their trial, Marcus Rydell Glass, who had been charged with facilitation of the
victim’s murder, testified that he witnessed the Petitioner and co-defendant Jefferson shoot
and kill the victim. Johnie Jefferson and Larry Johnson, 2001 WL 1218287, at *2-3. Co-
defendant Glass testified that he was a member of the Gangster Disciples, along with the
victim, the Petitioner, and co-defendant Jefferson. According to co-defendant Glass, the
victim had violated one of the rules of the organization, and the punishment was death.
Co-defendant Glass testified that he, the Petitioner, and co-defendant Jefferson took the
victim to a deserted area on the night of November 3, 1997, and that the Petitioner and co-
defendant Jefferson shot the victim as he tried to run away. Co-defendant Glass stated that
he witnessed the entire incident. Co-defendant Glass further testified that the Petitioner
shot the victim twice in the back with a .357 revolver, that co-defendant Jefferson shot the
victim four times with the same gun, and that co-defendant Jefferson then got his 9mm
pistol and shot the victim twice more.
In addition, Robert Walker testified that he held the position in the Gangster
Disciples of “chief security” of the city and reported directly to the “overseer,” Tony
Phillips. Johnie Jefferson and Larry Johnson, 2001 WL 1218287, at *3. Mr. Walker also
said that co-defendant Jefferson was a “chief of security” in charge of enforcement and that
the Petitioner and co-defendant Glass were co-defendant Jefferson’s assistants. Mr.
Walker testified regarding the gang’s membership, structure, procedures, and how specific
violations were handled, including murder. According to Mr. Walker, the victim was in
trouble for a violation that was punishable by death.
Relative to the events of November 3, 1997, Mr. Walker testified that the Petitioner
and co-defendant Glass arrived at Mr. Walker’s sister’s residence in the Petitioner’s car
carrying the victim. Johnie Jefferson and Larry Johnson, 2001 WL 1218287, at *4. When
the Petitioner informed Mr. Phillips that the victim was in the car, Mr. Phillips told co-
defendant Jefferson to “take care of his business” and winked his right eye, which signified
that co-defendant Jefferson was supposed to “put [the victim] to sleep.” According to Mr.
Walker, co-defendant Jefferson, armed with a .357 revolver, then left with co-defendant
Glass and the Petitioner, and as Mr. Walker walked outside with the group, the Petitioner
told Mr. Walker that “he was fixing to go kill dude.”
The Petitioner and co-defendant Jefferson both testified in their own defense.
Johnie Jefferson and Larry Johnson, 2001 WL 1218287, at *6-7. Both men testified that
they did not know each other before their arrests for the victim’s murder; co-defendant
Jefferson claimed that he had never met the victim; and the Petitioner alleged that he had
only met the victim once. Co-defendant Jefferson could not provide an alibi for the time
of the murder, and the Petitioner claimed he was with his brother on the night of the murder,
though the Petitioner’s brother did not testify regarding the Petitioner’s whereabouts that
evening.
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The jury convicted both men as charged of first-degree premediated murder, and
they were sentenced to life imprisonment. This court affirmed the convictions on direct
appeal, and the Tennessee Supreme Court denied permission to appeal. Johnie Jefferson
and Larry Johnson, 2001 WL 1218287, at *1. A full recitation of the underlying facts
surrounding the victim’s murder can be found in this court’s opinion on direct appeal. See
id. at *1-7.
The Petitioner sought post-conviction relief, alleging that he received the ineffective
assistance of counsel because his attorney failed to request an instruction on second-degree
murder as a lesser-included offense of premeditated first-degree murder and did not raise
the trial court’s failure to give such instruction as an issue in the motion for new trial. Larry
Johnson v. State, No. W2006-00345-CCA-R3-PC, 2007 WL 2120184, at *1 (Tenn. Crim.
App. July 24, 2007), perm. app. denied (Tenn. Dec. 26, 2007). At the post-conviction
hearing, trial counsel explained that he did not request a second-degree murder instruction
because it was inconsistent with the theory of defense—the Petitioner said he was not there,
and there was no proof that would support a second-degree murder charge. Id. at *8. Trial
counsel also said that the Petitioner gave him the names of possible alibi witnesses, but no
one could provide an alibi. The post-conviction court denied relief, and this court affirmed
the post-conviction court’s determinations, concluding that the Petitioner had failed to
establish that he was prejudiced by trial counsel’s actions. Id. at *11.
On June 12, 2014, the Petitioner filed his first petition for writ of error coram nobis,
alleging that the State “violated ‘Brady’ by withholding exculpatory evidence of leniency
that was given to . . . ‘Robert Walker’ in exchange for his testimony.” Larry Johnson v.
State, No. W2017-00503-CCA-R3-ECN, 2019 WL 211172, at *6 (Tenn. Crim. App. Jan.
15, 2019), perm. app. denied (Tenn. May 17, 2019). The petition also alleged that the
prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding impeachment
information related to the leniency Mr. Walker received for his cooperation with the State
in multiple homicide cases involving defendants who were Gangster Disciples members.
The petition alleged that Mr. Walker’s federal grand jury testimony showed that Mr.
Walker and then-Assistant District Attorney General Terry Harris, the prosecutor in the
Petitioner’s case, “discussed cooperation and consideration . . . at a later date.” Likewise,
the petition alleged that Mr. Walker implicated himself in the victim’s murder, that Albert
Cleveland Wilson’s police statement implicated Mr. Walker in the unrelated homicide of
Billy Ray Brown, and that Mr. Walker was never charged for his roles in these killings.
The Petitioner argued that due process of law required tolling the one-year statute of
limitations.
The coram nobis court’s March 3, 2017 written order reflected that the court denied
relief for failing to state a cognizable claim, reasoning that the trial transcript showed that
the federal grand jury transcript was provided to the defense during the trial. The court
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also found that Mr. Wilson’s statement implicating Mr. Walker in an unrelated murder
would not have been admissible at the Petitioner’s trial and that even if Mr. Wilson’s
statement would have been admissible, the statement would not have impacted the outcome
of the trial. Finally, the court determined that Mr. Wilson’s statement could have been
discovered by trial counsel at the time of trial.
This court affirmed on appeal, noting first that the petition was filed long after the
statute of limitations had expired, and then concluding that the record failed to establish
what, if anything, in the grand jury transcript was withheld from the defense, so the
Petitioner could not establish that the evidence was newly discovered. Larry Johnson,
2019 WL 211172, at *16. This court continued,
Furthermore, because evidence of what consideration the prosecutor
provided to Mr. Walker does not exculpate the Petitioner of the first-degree
murder of Mr. Hailey and because co-defendant Glass testified at the trial
that the Petitioner shot Mr. Hailey twice in the back when Mr. Hailey
attempted to run, it is unlikely that the jury would have reached a different
judgment had it been presented evidence of Mr. Walker’s bias based upon
consideration provided by the prosecutor.
Id. Given these conclusions, this court found it “unnecessary to consider the coram nobis
court’s determinations relative to Mr. Wilson’s 1998 police statement implicating Mr.
Walker in the murder of Mr. Brown.” Id. at *17.
On May 31, 2019,1 the pro se Petitioner filed his second pro se petition for writ of
error coram nobis. This time, he claimed that on June 2, 2016, he obtained new,
exculpatory evidence in the form of two statements from both Tony Phillips and Melisha
Looney. According to the Petitioner, the State violated Brady by withholding these
exculpatory statements prior to trial, thereby entitling him to coram nobis relief. The
Petitioner submitted that these statements were “vital to [his] actual innocence claim,”
reflecting that he “was not present during the planning of this alleged crime” and that he
was not “in the room before, during[,] or after the alleged crime of murder.” In addition,
the Petitioner argued that due process required tolling of the one-year statute of limitations
because his appointed counsel in the prior coram nobis proceeding (“first coram nobis
counsel”) refused to amend the Petitioner’s original coram nobis petition to add these
additional claims, despite the Petitioner’s request that he do so. The Petitioner attached a
letter from first coram nobis counsel dated June 2, 2016, stating that the Petitioner should
1
The Petitioner claimed that he had previously mailed the petition on March 8, 2017. He attached two
certified mail receipts showing packages sent to the District Attorney General’s Office and the Shelby
County Criminal Court on that date.
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have received the “[s]tatements from the prosecutor’s file” already, though first coram
nobis counsel said that he would send them again out of an abundance of caution.
The Petitioner also filed a supplement to this petition, in which he purported to
provide additional factual context for his claims. In the supplement, the Petitioner
seemingly focused on facts he believed might have led to a different judgment, including
the possibility of conviction for a lesser-included offense, had all the exculpatory evidence
been available to him at trial. The Petitioner challenged the credibility of co-defendant
Glass and Mr. Walker, and the Petitioner asserted that the withheld statements supported
his alibi defense.2 At some point, the coram nobis court appointed new counsel (“second
coram nobis counsel”) to represent the Petitioner in this matter.
The Petitioner attached the witnesses’ statements to his coram nobis petition.
Relative to Mr. Phillips, Mr. Phillips made a statement to the authorities on November 13,
1997. In that statement, Mr. Phillips claimed that he was no longer the overseer of the
Gangster Disciples in Memphis, having his authority “stripped” from him six months prior.
In addition, Mr. Phillips averred that he had nothing to do with the victim’s death and
implicated “MacLarry” (the Petitioner), “Sporty” (co-defendant Glass), and “J-Rock” (co-
defendant Jefferson) as the individuals “responsible for the death” of the victim.
In his second statement given on November 17, 1997, Mr. Phillips admitted that his
first statement was not “completely true” and that he was still the overseer of the Gangster
Disciples in Memphis. According to Mr. Phillips, he first learned of the victim about a
month to a month and one-half before the murder during a conversation he had with another
gang member, “Honeysuckle.” During this conversation, Mr. Phillips learned that the
victim had been “causing a lot of chaos and doing a lot of robbing, bringing heat down by
robbing, etc.” Honeysuckle indicated to Mr. Phillips that the members were going to call
a meeting to discuss what repercussions the victim was to face for his actions. After the
meeting took place, Mr. Phillips was informed that they agreed to give the victim a
“pumpkin head” for violating the rules of the gang, which meant a “physical violation,”
“[a] couple of mouth shots, about [six] or [seven].” Mr. Phillips stated that on the day of
the murder, Sporty stopped by his residence and told him that they were “fixin’ to go handle
some business.” J-Rock, who was present at Mr. Phillips’s apartment, left with Sporty.
The victim’s body was found the following morning, so Mr. Phillips deduced that this was
the business they had handled the prior evening. When Mr. Phillips was asked if he knew
if anyone else was “involved in this murder,” he said, “MacLarry. Y’all got him down
here, so I guess he’s been implicated too, y’all came and got his car.”
2
In addition to the statements from Mr. Phillips and Ms. Looney, the Petitioner also referenced statements
from Kim Moss, co-defendant Jefferson, and Marlo Richardson. However, no statements from these
witnesses appear anywhere in the record.
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Relative to Ms. Looney (“MeMe”), she gave a statement to the authorities on
November 9, 1997. Ms. Looney said that she returned to her apartment on November 3,
1997, around 4:30 or 5:00 p.m. and that upon her return, Ms. Looney’s roommate and her
roommate’s “play sister” were in the living room talking with the victim. Ultimately, Ms.
Looney went to her bedroom where she stayed for the evening. Sometime around 8:00
p.m., Ms. Looney’s roommate informed Ms. Looney that they were leaving to take the
roommate’s children “home.” Ms. Looney was then alone with victim. Ms. Looney
indicated that she last saw the victim in her apartment about 9:15 or 9:30 p.m. that evening
when he left to “to get a beer and to find some weed.” Ms. Looney thought the victim
intended to return to apartment. Ms. Looney’s roommate later told her that “some guy”
picked the victim up and left. Ms. Looney admitted that she did not know if others entered
the apartment that evening because she was in her bedroom. Ms. Looney denied knowing
the Petitioner.
In her second statement given later the same day, Ms. Looney admitted that the
Petitioner was her boyfriend and confirmed that the Petitioner, the victim, and co-defendant
Jefferson (“Sporty”) were all members of the Gangster Disciples. When asked about the
relationship between Sporty, the Petitioner, and the victim, Ms. Looney said that the
Petitioner told her not let the victim into her apartment because members of the Gangster
Disciples were “following” the victim and “were going to kill him and all witnesses.” The
Petitioner further informed her that Sporty had been looking for the victim for about a year
because the victim “was initiating folks” into the gang without the authority to do so. She
further conveyed that the Petitioner and the victim had had a disagreement about the
Petitioner’s “shooting a gun downstairs from [her] apartment.”
Relative to the events that took place on November 3, 1997, Ms. Looney relayed
that she and the Petitioner met around 4:00 p.m. that day and rode around in the Petitioner’s
car, stopping in Germantown to visit her mother. When they got back to Ms. Looney’s
apartment around 7:00 p.m., they discovered that the victim was inside, so they left to go
inform Sporty. According to Ms. Looney, she and the Petitioner returned to the apartment
complex accompanied by Sporty, and they dropped Sporty “off around the corner” from
her apartment. Once Ms. Looney and the Petitioner arrived at her apartment about 9:00
p.m., Ms. Looney got out of the vehicle and went inside, but the Petitioner stayed in the
car and did not come inside. Ms. Looney relayed that “[a] couples of minutes” after she
had returned to the apartment, Sporty entered and greeted the victim with a handshake.
Ms. Looney said that the last time she saw the victim in her apartment was around 9:30
p.m. when the victim left to “get some beer and buy some weed” and that Sporty left shortly
after the victim.
According to Ms. Looney, the Petitioner called her around 11:00 p.m. and said that
he “would be over after a while.” When Sporty and the Petitioner returned the following
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morning, November 4, about 1:00 or 1:30 a.m., Sporty said to her, “MeMe, we were with
you all night, OK?” Later that day, Sporty told Ms. Looney that he was “spooked” and
that “his gun had been drilled.”
Ms. Looney conveyed that she asked the Petitioner if he killed the victim and that
the Petitioner told her that he did not. Ms. Looney speculated that Sporty was responsible
for the victim’s murder.
The State filed a motion to dismiss. In the motion, the State argued that (1) the
petition was untimely and due process did not require tolling of the statute of limitations;
(2) the Petitioner only offered a bare allegation that the evidence was newly discovered;
and (3) the evidence, even if newly discovered, was inculpatory rather than exculpatory
and would not have led to a different result at trial.
Second coram nobis counsel explained that while the witnesses’ statements did not
definitively establish the Petitioner’s innocence, they did “give some wiggle room, . . . that
would have allowed for a sounder, more robust alibi defense.” Counsel also indicated that
the statements, though not providing a specific alibi, could have established that the
Petitioner was not as “involved in the planning of” the victim’s murder contrary to the
testimony from the State’s trial witnesses.
The Petitioner stated that first coram nobis counsel spoke with post-conviction
counsel and that post-conviction counsel said that he had never seen these statements. The
Petitioner claimed that first coram nobis counsel would not amend the first petition for
coram nobis relief, though the Petitioner did not know why he refused. The Petitioner
further explained that the matter was brought before the coram nobis court during the first
coram nobis proceeding3 and that the court said that it “was only going to deal with what
was on paper and how long he had had the statement,” which was five months. The
Petitioner also claimed that trial counsel told him that he could not find Ms. Looney or Mr.
Phillips.
The State noted that the Petitioner had sent co-defendant Jefferson an affidavit
relieving co-defendant Jefferson of any involvement in the victim’s murder; thus, the
Petitioner had established he was present for the murder through his own affidavit. The
State believed that the affidavit had been entered in co-defendant Jefferson’s coram nobis
proceedings. See Johnie Jefferson and Larry Johnson, 2001 WL 1218287, at *14-15
(affirming trial court’s determination that the affidavit lacked “believability and
credibility” and denying the coram nobis petition); see also Johnie Jefferson v. State, No.
No. W2012-01867-CCA-R3-PC, 2013 WL 5519721, at *8 (Tenn. Crim. App. Oct. 2,
2013), perm. app. denied (Tenn. Feb. 11, 2014). Second coram nobis counsel stated that
3
The same judge presided over both coram nobis proceedings.
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at an evidentiary hearing, the Petitioner would be able to explain that he authored the
affidavit while in jail because his family was being threatened.
The coram nobis court observed that open-file discovery was a “pretty common”
practice in the jurisdiction at the time of the Petitioner’s trial. The court took the matter
under advisement.
On February 25, 2020, the coram nobis court entered an order dismissing the
petition. Regarding the statute of limitations, the court noted that the Petitioner only
offered a bare allegation that he was not provided these documents as part of pre-trial
discovery. In addition, the court found it appeared that he was aware of these documents
as early as 20154 when he was shown them by first coram nobis counsel, which suggested
that first coram nobis counsel did not find them to be newly discovered given his refusal
to amend the petition. The court determined that the Petitioner had failed to establish that
he was denied a reasonable opportunity to present his claims. Moreover, the court found
that even if the petition were timely and the evidence newly discovered, the Petitioner
failed to state a cognizable claim for relief. According to the court, the Petitioner had failed
to demonstrate that had the evidence been presented to the jury, it might have resulted in a
different outcome at trial. The court observed that Mr. Phillips’s statement was inculpatory
and that Mr. Phillips would have been subject to significant attack by the State if he
testified. As for Ms. Looney, the court explained that her statement was “equally
unhelpful” because she could not say if someone entered the house after she retreated to
her bedroom. The Petitioner filed a timely notice of appeal on May 21, 2020.5
ANALYSIS
On appeal, the Petitioner argues that the coram nobis court erred by summarily
dismissing the petition because the statute of limitations should be tolled in this matter and
the statements were exculpatory in nature. As for the statute of limitations, the Petitioner
submits that due process requires tolling because the statements were discovered while the
Petitioner was represented by first coram nobis counsel, who refused to amend the original
coram nobis petition. The Petitioner notes that he is prohibited by law from filing any pro
se pleadings while represented by counsel. He claims that because he requested that first
coram nobis counsel amend the petition, he is without fault in failing to present the
evidence at the proper time. In addition, the Petitioner asserts that the evidence was newly
discovered and that it may have resulted in a different judgment, potentially a lesser-
4
It is unclear how the coram nobis court obtained this year. The Petitioner claimed that he received the
statements in 2016.
5
As a result of the COVID-19 pandemic, the deadline for the Petitioner’s notice of appeal was extended
through June 5, 2020. In re: Covid-19 Pandemic, No ADM2020-00428 (Tenn. Apr. 24, 2020).
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included offense, had it been offered at trial. The Petitioner explains that Mr. Phillips’s
statement, though it does implicate the Petitioner, also establishes “not so much a planned
murder, but a planned assault,” which may have negated the requisite mens rea for first-
degree murder. Relative to Ms. Looney’s statements, the Petitioner states that her second
statement provides a “solid timeline” for the day and evening of the shooting, including
the times that both the Petitioner and the victim were with her, as well as providing an
incriminating admission from co-defendant Jefferson. The Petitioner concludes that the
statements from the witnesses, taken together, could have been viewed by the jury as
supporting facilitation or some other lesser-included offense. The Petitioner requests
reversal for a full evidentiary hearing.
In response, the State notes the coram nobis court’s finding that first coram nobis
counsel’s refusal to amend the petition “seems to suggest that counsel did not find [the
statements] to be newly discovered.” Next, the State asserts that even if the statements
were newly discovered, the second writ of error coram nobis petition was untimely, its
being filed nearly two decades after the entry of the final judgment, and that due process
does not require tolling because the Petitioner waited nearly three years after obtaining the
statements to present his claim. The State explains that a claim of ineffective assistance of
counsel does not justify tolling the statute of limitations for coram nobis relief and that
nothing prohibited the pro se Petitioner from filing a second petition for writ of error coram
nobis. Finally, the State submits that the newly discovered evidence would not have led to
a different result at trial because it is not exculpatory. The State observes that neither Mr.
Phillips nor Ms. Looney testified at the Petitioner’s trial, so their newly-discovered
statements had no impeachment value. In reference to Mr. Phillips’s statements affecting
the jury’s consideration of lesser-included offenses, the State notes that the jury was not
charged with any lesser-included offenses. Relative to Ms. Looney, the State remarks that
she was the Petitioner’s girlfriend, so he likely had access to her, and that, regardless, her
statements are not proof of actual innocence. The State explains that her statements in fact
discredit the Petitioner’s testimony at trial that he did not know Mr. Phillips and co-
defendant Glass were members of the Gangster Disciples and that he had only met the
victim once.
A writ of error coram nobis is an extraordinary remedy available only under very
narrow and limited circumstances. State v. Mixon, 983 S.W.2d 661, 666 (Tenn. 1999). A
writ of error coram nobis lies “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; see State v. Hart, 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995). The purpose
of a writ of error coram nobis is to bring to the court’s attention a previously unknown fact
that, had it been known, may have resulted in a different judgment. State v. Vasques, 221
S.W.3d 514, 526-27 (Tenn. 2007). The decision to grant or deny the writ rests within the
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discretion of the coram nobis court. Teague v. State, 772 S.W.2d 915, 921 (Tenn. Crim.
App. 1988).
A petition for writ of error coram nobis must be filed within one year of the date the
judgment of the trial court becomes final. See Tenn. Code Ann. §§ 27-7-103, 40-26-105.
The statute of limitations is calculated 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, post-trial motion. Payne v. State, 493 S.W.3d
478, 484 (Tenn. 2016); Mixon, 983 S.W.2d at 670. A petition for a writ of error coram
nobis may be summarily dismissed if it fails to show on its face that it has been timely filed
because the timely filing requirement in Code section 27-7-103 is an essential element of
a coram nobis claim. Nunley v. State, 552 S.W.3d 800, 828 (Tenn. 2018). “[T]he statute
of limitations set forth in Section 27-7-103 is not an affirmative defense that must be
specifically raised by the State in error coram nobis cases; instead, the coram nobis petition
must show on its face that it is timely filed.” Id.The one-year limitations period may be tolled only when required by due process
concerns. See Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001). To determine whether
due process requires the tolling of the statute of limitations, courts must balance the State’s
interest in preventing “stale and groundless claims” against the petitioner’s interest in
having a hearing to present newly discovered evidence which may have led to a different
outcome at trial. Id. Courts apply the following three-step analysis to balance those
interests:
(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 have normally 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). Whether a claim is time-barred is a
question of law, which this court reviews de novo. Harris v. State, 301 S.W.3d 141, 144
(Tenn. 2010).
Upon review, we cannot conclude that the coram nobis court abused its discretion
in summarily dismissing the petition for writ of error coram nobis. First, there is no dispute
that the Petitioner filed this petition outside the limitations period and that the State raised
the statute of limitations as an affirmative defense. Here, the Petitioner was convicted of
first-degree murder in 1999. This court affirmed his conviction on October 12, 2001, and
our supreme court denied permission to appeal on March 11, 2002. This second petition
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for writ of error coram nobis was not filed until May 31, 2019, well past the one-year filing
deadline.6
The Petitioner claims due process requires tolling because he did not see the
witnesses’ statements until 2016, when shown them by first coram nobis counsel, who
refused to amend the original coram nobis petition to include allegations related to the
statements. However, review of the second and third considerations in Sands indicate that
due process tolling of the statute of limitations does not apply in this case. The Petitioner’s
claim is not clearly “later-arising,” nor would a strict application of the limitations period
deny the Petitioner a reasonable opportunity to present the claim.
The Petitioner was aware of information pertaining to Ms. Looney and Mr. Phillips
before and at the time of trial. Ms. Looney was the Petitioner’s girlfriend. At trial, Sergeant
R.D. Roleson of the Memphis Police Department testified that he talked with Ms. Looney
following the victim’s murder at the homicide office and that he had her page the Petitioner,
and Sergeant Roleson then used the return call to trace the Petitioner’s location. Johnie
Jefferson and Larry Johnson, 2001 WL 1218287, at *5. Sergeant Roleson stated that
officers went to that location and had the Petitioner’s car towed for processing.
Subsequently, officers obtained a search warrant for the Petitioner’s vehicle based on
information from a “reliable witness” who, in part, identified the Petitioner and co-
defendant Glass as the persons responsible for the victim’s murder. As for Mr. Phillips,
the Petitioner testified that Mr. Phillips sometimes cut his hair and that he was at Mr.
Phillips’s residence when the police paged him. Johnie Jefferson and Larry Johnson, 2001
WL 1218287, at *7. Ms. Raniko Lindsey Bonner testified at trial that she was dating Mr.
Phillips at the time of the victim’s murder; relayed that the Petitioner and co-defendants
Glass and Jefferson all came to Ms. Bonner’s home on the night of the murder while Mr.
Phillips was present; that the Petitioner told her he could not give her a ride because “he
had some business to take care of”; and that subsequently the Petitioner and co-defendants
Glass and Jefferson left. Id. at *1. Co-defendant Glass and Mr. Walker also testified about
their relationship with Mr. Phillips and Mr. Phillips’s involvement in the events
surrounding the victim’s murder. Id. at *2-4. Totti Brown, Mr. Phillips’s roommate,
testified that the Petitioner and co-defendant Jefferson frequently came to her apartment to
see Mr. Phillips. Id. at *5.
At the brief coram nobis hearing, second coram nobis counsel asserted that he had
reviewed “the old case filings and transcripts and things of that nature” and acknowledged
that it appeared the statements from Mr. Phillips and Ms. Looney were included “in the
State’s original first-degree murder file.” The coram nobis court observed that open-file
discovery was a “pretty common” practice in the jurisdiction at the time of the Petitioner’s
6
Even if the Petitioner originally mailed the petition on March 8, 2017, as he asserted, it was still filed well
past the deadline.
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trial. Regarding the statute of limitations, the coram nobis court in its written order noted
that the Petitioner only offered a bare allegation that he was not provided these documents
as part of pre-trial discovery. In fact, the June 2, 2016 letter attached by the Petitioner from
first coram nobis counsel references them as “[s]tatements from the prosecutor’s file.” We
agree that the Petitioner’s bare allegation is insufficient based upon the record before us.
According to the Petitioner, trial counsel told him that he could not locate either Mr.
Phillips or Ms. Looney, but the failure to locate these witnesses or present their statements
was not addressed as an issue at trial or in the post-conviction proceedings. The Petitioner
claimed that first coram nobis counsel spoke with post-conviction counsel and that post-
conviction counsel said that he had never seen these statements. However, there is not
even a bare allegation that these statements were not available to post-conviction counsel
through due diligence. In addition, trial counsel stated at the post-conviction hearing that
the Petitioner gave him the names of possible alibi witnesses, but no one could provide an
alibi. See Larry Johnson, 2007 WL 2120184, at *8. Any claim that Petitioner’s delay in
raising the claim should be attributed to the ineffective assistance of post-conviction
counsel is without merit. “‘[T]here is no constitutional right to effective assistance of
counsel in post-conviction proceedings.’” Stokes v. State, 146 S.W.3d 56, 60 (Tenn. 2004)
(quoting House v. State, 911 S.W.2d 705, 712 (Tenn. 1995)). Even if a constitutional right
did exist, ineffective assistance of counsel is not an appropriate ground for coram nobis
relief. See Mindy Dodd v. State, No. M2013-02385-CCA-R3-ECN, 2014 WL 1605168,
at *3 (Tenn. Crim. App. Apr. 22, 2014) (holding that the petitioner’s claims of ineffective
assistance of trial counsel is not an appropriate ground for coram nobis relief). Most
significantly, however, “[a] claim of ineffective assistance of counsel does not justify
tolling the statute of limitations for coram nobis relief.” James Dellinger v. State, No.
E2013-02094-CCA-R3-ECN, 2015 WL 4931576, at *12 (Tenn. Crim. App. Aug. 18,
2015).
The Petitioner asserted that first coram nobis counsel refused to amend the original
petition, but could provide no rationale for first coram nobis counsel’s decision. In
addition, the Petitioner claimed that this matter was brought to the attention of the coram
nobis judge in the original coram nobis proceeding, and though the Petitioner disagreed
with how the coram nobis court dealt with the situation, it was not raised as an issue on
appeal. Even if the Petitioner did not see the statements until shown them by first coram
nobis counsel, this does not make them newly discovered.
Finally, we agree with the coram nobis court that the Petitioner’s claims of newly
discovered evidence that may have led to a different result at trial, including the possibility
of conviction for a lesser-included offense, are unconvincing. Neither Ms. Looney nor Mr.
Phillips testified at trial, so their statements would have had no impeachment value. The
coram nobis court observed that Mr. Phillips’s first statement was inculpatory and that Mr.
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Phillips would have been subject to significant attack by the State if he testified. Also, the
jury was not charged with any lesser-included offenses, so any assertion that Mr. Phillips’s
statements may have led to a conviction for a lesser-included offense are without merit.
We note that the lack of these instructions and the failure to preserve the issue was not
found to be prejudicial to the Petitioner. See Larry Johnson, 2007 WL 2120184, at *11.
As for Ms. Looney, the coram nobis court explained that her first statement was “equally
unhelpful” because she could not say if someone entered the house after she retreated to
her bedroom. Moreover, her second statement did little to support the Petitioner’s defense
because it, in fact, discredited the Petitioner’s trial testimony that he did not know that Mr.
Phillips and co-defendant Glass were members of a gang and that he had met the victim
only once. The second statement was also inculpatory in that Ms. Looney informed that
she and the Petitioner alerted co-defendant Jefferson to the victim’s whereabouts and
brought co-defendant Jefferson to her apartment, knowing of his plans for retribution. Ms.
Looney ultimately could not account for the Petitioner’s whereabouts during the murder in
either version of her statements. We conclude that no “reasonable basis exists for
concluding that had the evidence been presented at trial, the result of the proceedings might
have been different.” Vasques, 221 S.W.3d at 527.
CONCLUSION
Accordingly, we conclude that the coram nobis court did not err in summarily
dismissing the petition for writ of error coram nobis. In consideration of the foregoing and
the record as a whole, the judgment of the coram nobis court is affirmed.
_________________________________
D. KELLY THOMAS, JR., JUDGE
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