IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

November 1, 2022 Session

ANDRE BOWEN v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 18-01853 Lee V. Coffee, Judge

___________________________________

No. W2022-00229-CCA-R3-ECN

___________________________________

Andre Bowen, Petitioner, claims that the trial court erred by summarily dismissing his 

Petition for Writ of Error Coram Nobis. Discerning no error, we affirm the dismissal.

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 J. ROSS DYER

and KYLE A. HIXSON, JJ., joined.

Phyllis Aluko, District Public Defender; and Barry W. Kuhn (on appeal) and Samuel 

Christian (at hearing) Assistant District Public Defenders, for the appellant, Andre Bowen.

Jonathan Skrmetti, Attorney General and Reporter; Jonathan H. Wardle, Assistant 

Attorney General; Steve Mulroy, District Attorney General; and Leslie Byrd, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

Petitioner and his Co-defendant, Anthony Olivo, were charged with first degree 

felony murder in the perpetration of theft, first degree felony murder in the perpetration of 

robbery, attempted especially aggravated robbery, and convicted felon in possession of a 

firearm. See State v. Andre Bowen, No. W2019-01210-CCA-R3-CD, 2021 WL 1400929, 

at *1 (Tenn. Crim. App. Apr. 13, 2021), perm. app. denied (Tenn. June 15, 2021); State v. 

Anthony Olivo, No. W2019-00530-CCA-R3-CD, 2020 WL 2510533, at *1 (Tenn. Crim. 

App. May 15, 2020), perm. app. denied (Tenn. Sept. 21, 2020). Following a joint trial, the 

jury convicted Mr. Olivo as charged, and the trial court sentenced him to a total effective 

sentence of life plus twenty years. Anthony Olivo, 2020 WL 2510533, at *1. The jury 

12/05/2022
- 2 -

convicted Petitioner as charged, except with respect to the murder charges for which it 

convicted him of the lesser-included offense of facilitation of first degree murder in the 

perpetration of robbery and acquitted him of the charge of first degree felony murder in the 

perpetration of theft, and the trial court sentenced Petitioner to a total effective sentence of 

seventy-two years. Andre Bowen, 2021 WL 1400929, at *1, *5. Neither Petitioner nor 

Mr. Olivo testified at the trial.

Petitioner’s Direct Appeal

The following excerpts are quoted from this court’s opinion from Petitioner’s direct 

appeal:

[S]hortly after 6:00 a.m. on August 1, 2015, the defendants were 

driving in [Mr.] Olivo’s grey Lexus looking for a license plate to steal 

because Co-defendant Olivo’s temporary tag had expired when they saw the 

victim withdraw cash from a bank. The defendants then decided to rob the 

victim and followed her in the Lexus. When the victim parked in the 

driveway of her neighbor, Jane Rezos, [Mr.] Olivo exited the Lexus armed 

with a gun, approached the victim, and attempted to rob her. A struggle 

ensued after the victim produced her own weapon, and [Mr.] Olivo shot the 

victim in the head. [Mr.] Olivo returned to the Lexus, and the defendants 

fled the scene.

. . . . 

[Mr.] Olivo provided a statement to law enforcement after his arrest 

on August 14, 2015, which implicated [Petitioner] in the crimes. [Memphis 

Police Department (“MPD”)] Officer [Brad] Webb obtained a statement 

from [Petitioner] on August 15, 2015. An advice of rights form, which was 

signed by [Petitioner], and a redacted version of [Petitioner]’s statement were 

entered into evidence, a copy of which was provided to the jury and read by 

Officer Webb. In the statement, [Petitioner] denied being responsible for the 

victim’s death but stated he knew who was responsible. He also stated he 

heard the gunshot that killed the victim. [Petitioner] explained that on the 

morning of the murder, he and [Mr.] Olivo were driving a dark grey Lexus 

and planned to steal a car tag. [Petitioner] denied seeing the victim anywhere 

prior to the shooting and denied that he and [Mr.] Olivo planned to rob the 

victim. Furthermore, [Petitioner] stated he never saw the victim as he 

remained in the front passenger’s seat during the shooting. [Petitioner]

explained as follows:
- 3 -

Me and [Mr. Olivo] were just riding around, and, within a 

minute or two, I heard a lady holler, but the windows were up, 

and I can’t say what she said. Then I heard a shot, and looked 

back, and saw [Mr. Olivo] running back to the car.

[Petitioner] denied having a weapon but mentioned seeing a small, 

black handgun that day and stated no one else was with him and [Mr.] Olivo 

at the time of the shooting. [Petitioner] also noted [Mr.] Olivo had a cut on 

his forehead. A photograph of [Mr.] Olivo, as identified by [Petitioner], was 

entered into evidence showing where [Petitioner] marked an injury to [Mr.] 

Olivo’s forehead and wrote, “That’s the place he was bleeding from.”

MPD Lieutenant Robert Wilkie testified regarding the statement 

provided by [Mr.] Olivo on August 14, 2015. A copy of the advice of rights 

form signed by [Mr.] Olivo and a redacted version of his statement were 

entered into evidence and read to the jury by Lieutenant Wilkie. In the 

statement, [Mr.] Olivo denied seeing the victim prior to August 1, 2015, 

denied planning to rob the victim, denied shooting the victim, and denied 

being armed during the shooting though he admitted to seeing a black, 

automatic handgun. [Mr.] Olivo admitted that prior to the crimes, he was 

searching for a car tag because his temporary tag had expired, he was present 

during the shooting but did not exit his vehicle, and he was sorry for what 

happened to the victim. [Mr.] Olivo explained the shooting in further detail, 

as follows:

Me and [Petitioner] were just riding around, and we were 

looking to find a Lexus to steal the tag off of and put on my 

car. I just turned on a street, and then I seen a car on my right 

side. I stopped in the street, and she was straight across the 

street near her truck, and she hollered to get away from the car. 

I seen her in her purse, and it looked like she was trying to get 

something. And that’s when she pulled out a gun and shot 

once, and we pulled off. I turned around at the end of the street 

and went to south Memphis and dropped [Petitioner] off near 

Pond Street, and then I went home to my mom’s.

Id. at *1-3.

Petitioner was questioned on August 15, 2015, by Officer Webb and MPD Sergeant 

Tess Kent. Petitioner’s interview, redacted so as to not implicate Mr. Olivo, was read to 

the jury and entered as Exhibit 39. The Petitioner’s unredacted interview was entered for 
- 4 -

identification as Exhibit 39A. The following is a portion of the exchange between Sergeant 

Kent and Petitioner:

1

 

Q. Exactly where were you when the shooting occurred?

A. Sitting in the car. Front passenger seat. The car was parked a little 

past where I heard the shot come from. Then I heard the shot I looked back 

a little over my left shoulder and saw [Mr. Olivo] running to the car.

. . . .

Q. In your own words tell me what happened before, during, and after 

the shooting.

A. Me and [Mr. Olivo] were just riding around, and, he was looking 

to find a Lexus to steal the tag off and put on his car. [Mr. Olivo] pulled 

over and stopped and then took the gun out of the glove box [and] got out of 

the car. He walked away from the car and within a minute or two I heard a 

lady holler, but the window[s] were up and I can’t say what she said, then I 

heard a shot and looked back and saw [Mr. Olivo] running back to the car.

Q. Was there any talk of robbing anyone?

A. No sir.

Q. Was there a plan of stealing a tag?

A. Yes.

Writ of Error Coram Nobis

Petitioner has been represented by attorneys from the Shelby County Public 

Defender’s office at trial, on appeal, and in this proceeding. Assistant Public Defender 

Sam Christian, who was one of Petitioner’s trial counsels, filed a Petition for Writ of Error 

Coram Nobis (“the Petition”) on March 24, 2021, claiming that Petitioner had discovered 

new evidence that was not available or discoverable before his trial and that this evidence 

may lead to an acquittal of the charges. The Petition claimed that Mr. Christian first 

 

1 Because one issue in this appeal is whether the proffered post-trial statements of Mr. Olivo— to 

the effect that Petitioner was asleep in the car when the victim was murdered—are credible, we have 

included the unredacted response of Petitioner, with the part redacted from Petitioner’s answer and not read 

to the jury italicized. 
- 5 -

became aware of possible evidence in August of 2020 when Petitioner told him that 

Petitioner had talked by phone with Mr. Olivo and that Mr. Olivo told Petitioner that he 

had made statements at his sentencing hearing that might aid Petitioner. Mr. Christian 

asked to speak with Mr. Olivo, but Mr. Olivo’s counsel would not permit him to speak to 

Mr. Olivo while Mr. Olivo’s appeal was pending. The Tennessee Supreme Court denied 

Mr. Olivo’s Rule 11 Application on September 21, 2020. 

In an affidavit attached to the Petition, Kathleen Duckett, an investigator with the 

Shelby County Public Defender’s Office, affirmed that she was on a telephone conference 

call with Mr. Olivo, Mr. Christian, and Assistant Public Defender Barry Kuhn on 

November 12, 2020. According to Ms. Duckett’s affidavit, Mr. Olivo stated that, during 

his sentencing hearing, he “told the court that Petitioner did not know anything about the 

situation until after the fact” and that Petitioner “was asleep in the car and did not know 

what happened.” He said that he and Petitioner “had been driving around all night ‘getting 

blazed’ and doing drugs” and that Petitioner “fell asleep in the early morning hours” and 

that he “continued to drive around for forty-five minutes after [Petitioner] fell asleep before 

anything happened.”

Also attached to the Petition was the portion of Mr. Olivo’s sentencing hearing 

transcript containing Mr. Olivo’s allocution, during which he stated that he would “like to 

apologize to [Petitioner] for him being charged with something that he had no knowledge 

of what was going on or what happened till after the fact.” 

On April 16, 2021, Petitioner filed, as an addendum to the Petition, the affidavit of 

Mr. Olivo, which stated: 

[Petitioner] was in the car with me during the events which occurred August 

1, 2015, but he was asleep. He was not aware of anything that occurred. He 

had taken a Xanax tablet and was asleep. He had gone to sleep forty-five 

minutes to an hour during the drive. I was about to take him home[, and] my

wife called and wanted something from the store[.] [Petitioner] was asleep 

the whole time. I made a stop at the store, went to my house, left[,] made a 

detour[,] when I got out the car he was asleep, but when [I] got back in the 

car he was up hollering at me asking me what’s going on and I told him while 

[I] was dropping him off. I wanted to testify during trial, but I asked my 

lawyer several times and he told me not to testify that it wouldn’t be in my

best interest [i]f I wanted a chance to win the trial. I just wanted to do what 

was right.

On December 1, 2021, the State filed a response asking that the Petition be 

summarily dismissed because the information alleged in the Petition was not newly 
- 6 -

discovered evidence and that the Petition was not timely filed. On January 20, 2022, the 

trial court summarily dismissed the Petition by written order, in which the court found:

The allegations raised in the Writ of Error Coram Nobis should have 

been raised on direct appeal. The evidence is not newly discovered and has 

been in possession of . . . [P]etitioner since at least April 12, 2019. The 

unsworn statements made by Mr. Olivo during an allocution at his sentencing 

hearing were made on March 8, 2019. [Petitioner’s] sentencing hearing took 

place one month later on April 12, 2019. The allocution made by Mr. Olivo 

is not newly discovered evidence.

This information has been available since at least March 8, 2019. This 

information was known to all parties at . . . Petitioner’s sentencing hearing.

During . . . Petitioner’s sentencing hearing, the trial court discussed the 

allocution made by Mr. Olivo at the earlier hearing in which Mr. Olivo 

asserted that . . . Petitioner was not involved in this offense (see-attached 

transcript of proceedings [held on] Friday, April 12, 2019, Page 37 beginning 

at line 21). This petition was filed untimely. Even if April 12, 2019[,] is 

accepted as the date when the information regarding Mr. Olivo’s allocution 

was known to . . . Petitioner, this petition for error coram nobis was filed two 

years later on March 23, 2021. Petitioner has willfully filed a document that 

is void of any truth. This Petitioner has filed an absolutely false pleading in 

this case.

On February 23, 2022, Petitioner filed a notice of appeal. 

Analysis

Petitioner claims that the trial court erred by summarily dismissing the Petition, 

arguing that he was without fault in failing to present certain evidence at trial, that the 

evidence was newly discovered, and that the evidence may result in a different verdict if 

admitted during a new trial. Petitioner acknowledges that the Petition was not filed before 

the expiration of the one-year statute of limitations but argues that statute should be tolled 

because its application denies him due process. The State argues that the trial court 

properly dismissed the Petition. We agree with the State. Mr. Olivo’s statements that 

Petitioner was asleep in the car when the victim was murdered are not newly discovered 

evidence, and the statements lack veracity, as found by the trial court. 

The writ of error coram nobis, codified in Tennessee Code Annotated section 40-

26-105 for criminal cases, is “an extraordinary procedural remedy,” providing relief in 

only a limited number of cases. State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999) 
- 7 -

(emphasis in original). The petition for writ of error coram nobis must be in writing and 

must describe with particularity the nature and substance of the newly discovered evidence 

and demonstrate that the evidence qualifies as newly discovered evidence. Harris v. State, 

301 S.W.3d 141, 144 (Tenn. 2010), overruled on other grounds by State v. Nunley, 552 

S.W.3d 800, 828 (Tenn. 2018). “[T]o be considered ‘newly discovered evidence,’ the 

proffered evidence must be (a) evidence of facts existing, but not yet ascertained, at the 

time of the original trial, (b) admissible, and (c) credible.” Id. (footnotes omitted). 

Petitioner must also show “why the newly discovered evidence could not have been 

discovered in a more timely manner with the exercise of reasonable diligence; and . . . how 

the newly discovered evidence, had it been admitted at trial, may have resulted in a 

different judgment.” Id. (footnotes omitted). Before granting coram nobis relief, the trial 

court must be “reasonably well satisfied” with the veracity of the proffered evidence. State 

v. Vasques, 221 S.W.3d 514, 527 (Tenn. 2007).

Petitions for writ of error coram nobis are subject to a one-year statute of limitations.

Tenn. Code Ann. § 27-7-103 (2020). “The statute of limitations is computed 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 filed, 

post-trial motion.” Harris, 301 S.W.3d at 144 (citing Mixon, 983 S.W.2d at 670). 

Calculating the statute of limitations in this manner is consistent with the “longstanding 

rule that persons seeking relief under the writ must exercise due diligence in presenting the 

claim.” Mixon, 983 S.W.2d at 670; see also Harris, 301 S.W.3d at 144.

Our supreme court has determined that “compliance with the timely filing 

requirement . . . is an essential element of a coram nobis claim.” Nunley, 552 S.W.3d at 

828. However, a petitioner can request equitable tolling of the limitations period. Id. To 

determine whether due process requires tolling, 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 the jury to a different 

verdict if it had been presented at trial. Workman v. State, 41 S.W.3d 100, 103 (Tenn. 

2001). To balance these interests, courts should use a three-step analysis:

(1) determine when the limitations period would normally have begun to run; 

(2) determine whether the ground for relief actually arose after the limitations 

period would normally have commenced; and (3) if the grounds are “laterarising,” 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); see also Harris, 301 S.W.3d at 145.

Likewise, “the coram nobis petition must be filed within a time period that ‘does not exceed 
- 8 -

the reasonable opportunity afforded by due process.’” Nunley, 552 S.W.3d at 830 (quoting 

Sample v. State, 82 S.W.3d 267, 275 (Tenn. 2002)); see Workman, 41 S.W.3d at 103. 

Whether due process considerations require tolling the statute of limitations is a mixed 

question of law and fact, which we review de novo with no presumption of correctness. 

Harris, 301 S.W.3d at 144 (citing Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 921 

(Tenn. 2007)).

After a review of the record, we determine that the Petition was not timely filed and 

that due process considerations do not warrant the tolling of the statute of limitations. 

Petitioner’s grounds for relief are not “later-arising,” and thus, a strict application of the 

limitations period would not effectively deny Petitioner a reasonable opportunity to present 

his claim. See Sands, 903 S.W.2d at 301. 

Even if the Petition were timely, Mr. Olivo’s proffered testimony is not newly 

discovered evidence. Harris, 301 S.W.3d at 144. Petitioner argues that Mr. Olivo is now 

prepared to testify that Petitioner was asleep in the car when the victim was murdered and 

that, therefore, Petitioner was not responsible for what occurred. Petitioner claims that Mr. 

Olivo’s statements constitute newly discovered evidence. Petitioner is the one person who 

would have known if he were asleep in the car when the victim was murdered, and he 

would have known this information prior to his trial. If he had in fact been asleep, he could 

have so testified. The only thing that is newly discovered is that Mr. Olivo, after being 

sentenced to life plus twenty years and exhausting his appeal, now appears willing to 

testify. 

Furthermore, the trial court found that Petitioner had “willfully filed a document 

that is void of any truth” and that Petitioner had filed “an absolutely false pleading in this 

case.” The record fully supports the trial court’s credibility findings. Both Petitioner and 

Mr. Olivo gave statements to the police before trial that contradict the proffered statements 

by Mr. Olivo that Petitioner was asleep when the murder occurred. Mr. Olivo stated that 

he and Petitioner were riding around looking for a car tag to steal. Neither Mr. Olivo nor 

Petitioner told the police that Petitioner was asleep. 

Petitioner told Sergeant Webb and Sergeant Kent that:

Me and [Mr. Olivo] were just riding around, and [Mr. Olivo] was looking to 

find a Lexus to steal the tag off and put on his car. [Mr. Olivo] pulled over 

and stopped and then took the gun out of the glove box [and] got out of the 

car. He walked away from the car and within a minute or two I heard a lady 

holler, but the window[s] were up and I can’t say what she said, then I heard 

a shot and looked back and saw [Mr. Olivo] running back to the car.
- 9 -

If Petitioner were in fact asleep when the victim was killed, he could not have known

that Mr. Olivo “pulled over and stopped and then took the gun out of the glove box [and] 

got out of the car” and that he “walked away from the car and within a minute or two [he]

heard a lady holler[.]” Petitioner also told Sergeant Webb and Sergeant Kent that he was 

“[s]itting in the car. Front passenger seat. The car was parked a little past where I heard 

the shot come from. Then I heard the shot I looked back a little over my left shoulder and 

saw [Mr. Olivo] running to the car.” Petitioner could not have known what occurred 

before, during, and after the victim was murdered if he were asleep in the car when it 

occurred. Because the proffered evidence—Mr. Olivo’s statements that Petitioner was 

asleep when the murder occurred and did not know what happened—is not credible, it does 

not constitute “newly discovered evidence” for purposes of a writ of error coram nobis. 

See id.; Vasques, 221 S.W.3d at 527.

Conclusion

We affirm the trial court’s summary dismissal of the Petition.

____________________________________

ROBERT L. HOLLOWAY, JR., JUDGE