### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs D ecem

ber 2, 2003 CHAUNCEY R . GORDON v. STA TE OF TENNESSEE Direct Appeal from the Circuit Court for Giles County No. 10337 Robert L. Holloway, Jr., Judge

No. M2002-02619-CCA-R3-CD - F iled December 31, 2003

The petitioner, who pled guilty to one count of first degree murder a nd one count of

second degree murder, appeals the denial of his petition for writ of error coram nobis, arg uing that the trial court should have granted him relief

based on newly discover ed evide nce whic h alleg edly

showed th at his trial counsel h ad a con

flict of i nterest a

t th e time h e entered his pleas of guilty . Following our review, we affirm the order of the trial court denying

the petition. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. G LENN , J., delivered the opinion of the court, in which J AMES C URWOOD W ITT , J R . a n d R OBER T W. W EDEMEYER , JJ., joined. Chauncey R. Gordon, War tburg, Tennessee, Pro Se. Paul G. Summers, Attorney Gene ral and Reporter; Kathy D. Aslinge r, Assista nt Attorne

y General ; T. Mic hel Botto ms , District Attorney Gene ral; and Patrick S. Butler, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION FACTS
In October 1989, the petitioner, Chauncey R. Gordon, shot and killed his girlfriend and her mother in Giles County. See Chauncey R. Gordon v. State , No. 01C01-9710-CC-00483, 1998 W L 881864, at *1 (Tenn. Crim. App. Dec. 18, 1998), perm. to appeal denied (Tenn. May 10, 1999)

. As a result, the Giles County Grand Jury indicted the petitioner on two counts of first degree murder. Id. After extensive negotiations between the petitioner’s trial counsel and the district attorney, the petitioner pled guilty on January

2, 1991, to one count of first degree murde r and one count of seconddegree murder in exchang e for an agreed se ntence of life plus twenty -five ye ars. Id. The petitioner thereafter filed a petition for post-conviction relief, alleging that his guilty pleas werenot vo lu nt ar il y, knowingly, a

nd understandingly

made. Id. Followin g an evidentiar y he aring, the post--2-

convict ion c ourt denied the petition, finding that the petitioner’s guilty pleas were knowingly

and voluntar ily entered. Id. at

*3. This court affirmed the post-conviction court’s denial of the petition on December 18, 1998, and our supreme court denied the petitioner’s application for per mission to appeal on May

10, 1999. Id. at *1. On January 22, 2002, the petitioner filed a pro se petition for writ of erro

r coram nobis, alleging that he ha

d recen tly d iscover ed a lette r sent fr om his trial counsel to the district attorney general pr io r t o t he en tr y of

hi s g ui lt y pleas, wh ich reve aled tha t trial counsel knew the vict ims’ family and therefore had a conflict of inter est. The petitioner asserted that, had he known about trial counsel’s relationship with the victims and their family, he would not have pled guilty

. The text of trial counsel’s undated, ha ndwritten letter to the district attorney general, which the petitioner attache d to his pet

ition, is asfollows: Attached please find

a copy of the Or

der requiring the appropri ate member of the Coleman party to execute medical releas es. Many

times doct

ors only take ori ginals. Therefore there are severa l. The firs t set is accepted by local doctors. Please have t h e appropr iateme mb er of

th e C ol em an fa mi ly sign e ach by the c heck mark as executor or executrix & have someone else witness the signature and date same. The se con d set nee ds to be sig ned by the appr opriate party also in their capacity

as executor

/exe cutrix of Jacqueline’s estate. These two need to be signed

as such by ea

ch check mark & dated at the bo tt om . T he si gn at ur e s ho ul d b e w it ne ss ed by a notary (if one is not available, please call my office & we will provide one). Please let m e kno w when I might pick these up as soon as possible. Also, since the

“finalit y” of thi s case has seemed to be a concernwith cer

tainfamily

members I

have spoken too [sic ] I would like the opportunity to explain to the Coleman’s the 3 tieredappella te processshould the death penalty r esult in either case. (i.e. direct appeal, post conviction relief in state court, & federal habea s corpus/post conviction appeals all of which combined could take as long as ten (10) years).
For purposesof settle

ment &/or

trial, the defenda nt will also be able to a nn ounce at the time of entering the plea the f actual-3- cir cu mstances surrounding this tragedy (which has also been a question which the Coleman family has w anted answered).
I have kno wn most of t

he Colema

n’s f or yea rs & would apprec iate

the opportunity to talk with them today if possible. Please le t m e k no w h ow I mi gh t h el p i f n ec es sa ry. The State answered thepetition by asserting, inter alia , that the writ was barred bythe oneyear statute of limitations, the letter did not constitute substantive evidence that would have had any bearing on the State’s evidenceagainst the petitioner, trial counsel did not have a c onflict of

interest , and “knowle dge of

this lette r would have in no way

affected the rendition of the judgment had the Court known of it.” The trial cou

rt appoin ted couns el and he

ld a hearing on the petition on September 23, 2002. The petitioner testified he had first seen the letter approximately three months previously , after the district a ttorney ’s offic e had re sponded to his request for a copy

of his file. An inmate legalclerk at the priso n, who wa s assisting him with his ca se, had directed his attention to the letter. The petitioner said he had not

kn ow n t ha t t ri al co un se l w as ac qu ai nt ed wi th th e v ic ti ms ’ f am il y, and that trial counsel had never informed him of his relationship with them. On c ross-examination, the petitioner acknowl edged

that, as a result of his guilty pleas, th e State di d not seek

the deat h penalty for the two murders. He further acknowledged that trial c ounsel’s expressed motivation for talking withthe victim s’ family

was to att empt to g et them to

consent t o the plea bargain, and conce ded that trial counsel was try

ing to save his life. Trial counsel testified that his ultimate purpose in writing the letter was to convinc e the Stat e not to see k the dea th penalt y a nd to ag ree to a plea bar gain. H e explaine d:
I wrote the letter because the first priority I had as [the petitione r’s] lawyer w as to do what ever I could totry to convince the Statethat this was not a case where I fe lt l ike they nee ded to be se ek in g t he de at h p en al ty. And by obtaining medic al information about the victims and meeting with the vi ctims’ families - - or family- - to make sure they understood the judic ial proc ess, and t he tim e invo lved, and th ings along those lines

. I felt that their kno wledge

of those i ssues, in c onjunctio n with the fact s, t hat I would be g etting in to some med

ical histo ry with regard to their family, might ca

use the D.A.’s office to reevaluate the pe nalty they saw [sic], a

nd/or off er a ple a agre

ement tha

t [th e petitioner] might considering [sic] taking.-4-

Trial counsel agreed

he had been successful in his efforts to ge t the State to agree to a ple a barg ain whereby the defendant could escape fac ing the death penalty

. Trial counsel testified he knew both victims by sig ht, having seen them around town, but did notknow thempersonally. He said there was a “brother

or somebo dy in the fam

ily, ” “a g ood athle

te at Gil es Cou nty High School,” with whom he at one point in time had “a little bit of rapport,” but he never had

any close pe

rsonal friendships or ties with anyone in the victims’ f

amily which wou

ld have pre ve nted him from zealously repre senting the petitioner. Although trial counsel could not recall, he said it was poss i ble he had sent the letter to the district attorney without informing the peti tioner. However, he said he felt that the letter nee ded to be sent because the petitioner was ch ar ge d w it h c ap it al cr im es an d t he St at e w as se ek in g t he de at h p en al ty. At the con clusion of the hearing, the trial court concluded that the le tter offered by

the p etitioner failed to show that there had been a conflict of inter est on the part of trial counsel

. Specific ally , the tria

l court fo und the fo llowing: Now, all the le tt er sa ys to me is let me try to talk the

victims’ family into allowing the State to offer something

other tha n the dea th penalty . This is a small town; a fairly rur al area. You know a

lot of people. [T

rial counsel] has e

xplained ho w he knew

of them.
N one of it sound s like a c lose rela tionship. Just

a passin g re l ationship. One of the brothers, who was an athlete, per haps he knew well enough to have a conver sation with.

. . . . But it’s clear to this Court, having been involved in d eat h penalty cases as a defense counsel and a s a judge, what’ s going on he re. It may

not be to [the petitioner] or to the [inmate leg al clerk ] who read the

letter, but it’s cle ar to the Court that

[trial cou nsel] is simply trying to wor

k out a plea

agre ement with the State of Tennessee for something where [the petitioner’s] life will not be put at jeopardy. Conseque

ntly , on Septe

mber 23, 2 002, the tr

ial cour t entere d a writte

n order d eny in g the petition for writ of error coram nobis. Because the trial court ruled on the merit s of the pe

tition, it did not consider whether the writ was barred by the one-ye ar statute of limitations. ANALYSIS
The petitioner contends due process bars the application of the one -year statute of limitations , and that t he tri al cou rt erre d in d enying his writ of erro r coram nobis on the

basis of h

is newly-5-

discovered

evidence. Specifically , the petitione r asser ts that the letter from his trial counsel, which st ate d that counsel had known most of the Colemans for years and had already talked to some of t hem, contradicts counsel’s claim that he did not have a personal re lationship with the vi ctims ’ fa mi ly. The petitioner argues that counsel’ s relatio nship with t he victims ’ family calls into question whether counsel provided adequate representa tion of the pet itioner and renders his guilty pleas unknowing and involuntary . The State argues that the petition should have been dismissed by the trial court because it was filed outside thestatute of limitations. Notwithstanding the court’s failure to dismiss on the ba sis of th e statue of limitati ons, the Sta

te argues that th

e trial c ourt prop erly determined that the petitioner was not entitled to error coram nobis relief on his claim.
A writ of error coram nobis is an extraordinary remedy by

which the trial court may provide relief from a judgment

under narrow and limited circumstances. State v. Mixon , 983 S.W.2d 661, 666 (Tenn. 1999). The writ “will lie for subseque nt ly o r newly discover ed evide nce rel ating to matters which were litigated at the trial if the judge determines that such

evidence may

have resulted in a d if ferent judgment, had it been presented a t the trial.” Tenn. Code Ann. § 40-26-105 (2003). In the case of a conviction stemming

from a g uilty plea, “in order for a writ to issue, the [petitioner] woul d have to present newly discovered evidence which would show that his plea was not voluntar ily or knowin gly

entered. ” Newsome

v. State , 995 S.W.2d 129, 134 (Tenn. Crim. App. 1998). The decision to grant or deny a petition for writ for error coram nobis on the g rounds of newly discovered evidence lies within the sound discretion of the trial court. Id. This court will not disturb the decision of the trial court on a petit ion for wr it of err or cora m nobis abs ent a

showing of an abuse of discretion.
As an ini tial matter, we agr ee with th e State th at the pe

tition for writ of e rror co ram nobis was barred by

the statue of limitations. The statute of limitations forseeking a writ of error cor am nobis is one year

from the date the judgment becomes final in the tria

l court. See Tenn. Code Ann. §§ 40-26-105, 27-7-103; Mixon , 983 S.W.2d a t 671. The

petitione r conce des his petition was filed well outside the one-ye ar statute of limitations, but he nonethe less argue s that due process consider ations, as set forth in Workman v. State , 41 S.W.3d 100 (Tenn. 2001), and Sample v. St ate , 82 S.W.3d 267 ( Tenn. 200 2), requ ire that t he statute of limit ations be tolled . We respectfully disagree.
In Workman , our supreme court held that due process re quired the tolling of the one-y ear statute of limitations where a

petitione r in a capital case sought a writ of er ror coram nobis based on newly discover ed exculpa

to ry eviden ce, con cludi ng that the pe titi oner’s “inte rest i n obt ainin g a hearing to present newly discove redevidence that

may establish actual in nocenc e of a ca

pital off ense far outweighs any

governmental interest in preventing the litigation of stale claims.” 41 S.W.3d at 103. Similarly , the cour

t held in Sample

that due process required that the statute of limitations for bringing a post-conviction petition be tolled where the petitioner had recently discovered proof that the State with

held excul

patory evidenc e at his trial. 82 S.W.3d at 275-76. A s the State notes in its brief, unlike the situations presented in Sample and Workman , the newly discover ed evidence in the case at bar has no bearing on the petitione r’s innoc ence of

the offe nses. We conclude, therefore, that due process does not require the to llin g o f the statute of limitations and thus, that the petition for-6-

error coram nobis relief is time-barred. See, e .g. , Grego ry A. Hedg es v. State , No. E2002-02610- CCA-R3-PC, 2003 WL 22426831, at *2 (Tenn. Crim. App. Oct. 24, 2003) (concluding that statute of limitations for writ of error coram nobis was not tolled in case where, in c ontrast to Workman and Statev. Ratliff , 71 S.W.3d 291 (Tenn. Crim. App. 2001), the petitioner never denied his participation in offenses for which he was convicted). Alth ough we conc lude that the trial court shouldhave denied the petition based on the sta tute of limitations, we find no abuse of discretion on the part of the trial court in its denial of the petition on its mer its. In concluding that the letter did not show a c onflict of interest on the part of tria l counsel, the trial court noted that Pulaski is a “fairly rur al area” where reside

nts are often familiar with each other. The trial court found that trial counsel h ad only

a “passing rela

tionship” withthe victims and their family, a nd couns el’s lett

er mere ly r eprese nted his a

ttempt to g et the fa

mily members t

o consen t to a plea barga in, which would pote

ntially save the life of th e petition er. I t is within the trial court’s province to determine the credibility of the witnesses who testify at the error coram n obis hearin g. See Newsome , 995 S.W.2d at 134-35. The trial court obviously found tria l counsel’s explanatio n of the le tter and his descr iption of h

is r elati onship with

the victim s’ family credible. The tria

l court the refore concluded there w ere no g rounds fo r gran ting er ror cor am nobis relief. Finding no abuse of discretion on the part of the trial c ourt, we affirm the order of the trial court de nyi ng the p etition fo

r writ of error c oram nobi s. CONCLUSION Based on the foregoing authorities and re asoning, we affirm the judgment of the trial cou rt.

___________________________________ ALAN E. GL

ENN, JUDGE