# FILED

April 24, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE AT JACKSON NOVEMBER 1997 SESSION

JIMMY EISOM, * C.C.A. # 02C01-9703-CC-00105 Appellant, * LAKE COUNTY VS. * Hon. Joe G. Riley, Jr. , Judge STATE OF TENNESSEE, * (Post-Conviction) Appellee. *

For Appellant: For Appellee: William D. Massey John Knox Walkup 3074 East Street Attorney General & Repor ter Memphis, TN 38128 Deborah A. Tullis John E. Herbison Assistant Attorney Gener al 2016 Eighth Avenue, South 450 James Robertson Parkwa y Nashville, TN 37204 Nashville, TN 37243-0493 C. Phillip Bivens District Attorney General P.O. Drawer E Dyersburg, TN 38024

OPINION FILED:_____________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The petitioner, Jimmy Eisom, appeals the trial court'sdenial of postconvic tion re lief. H e was c

onvict ed of seco nd degr

ee murde r and re ceived a life sentence. This court affirmed and the s upreme court denied review

. State v. Ji mmy Eisom and Mi chael D. Willia ms , No. 5 (Tenn. Crim. App., at J ackson, Nov. 12, 1986), app. denied , (Tenn., Mar. 9, 1987). In 1989, the petitioner filed his f irst petition for post-convic

tion relief alleging ineffective assistance of counsel . The trial court denied relief. This cour t affirmed. Michael W illiams a nd Jimmy E isom v. State , No. 02C01-9107-CC-00154 ( Tenn. Crim. App., at Jackson, J une 3, 1992).

In this second petition, filed May 10, 1996, the petitioner claims th at his second degree murder conv iction should be set aside and that he should be granted a new trial because the state failed to correct false testimony and f ailed to disclose exculpatory evi dence. In denying reli ef, the trial court determined that the nature of the testimony at issue did not require either a di sclosure or correcti on. It also ruled that the claims were bar red by the statute of limitati ons and by the doctrine of waiver.

We affirm the judgment of the trial court.

A brief review of the conv icting evidence, as taken from our prior opinion on direct appeal, is helpful:

The defendants were both inmates at the Lake County Regional Correctional Facility as was the victim, Bruce Easley. The defendants were c onvicted of stabbing Easley to death. Both the State and the defendants introduce d several witnesses who testified that they saw all or part of the commission of this homicide. The State's witnesses established that the victim, Easley, was in back of Guild # 3 (dormitory ) when the defendants approached him. Eisom approached the victim from the3 front and Williams approached the victim from the rear. The victim started to w alk around Eisom and Eisom stopped him. After a brief conver sation between Eisom and the victim, Eisom commenced stabbing the victim in the front of his body. The vic tim moved backwards and Williams proceeded to stab the victim i n the back. The defendants then wiped their kni ves in the grass and r

an. The victim walked toward the clinic and fell.

*** The State's witnesses testified that the victim made no assault on either of the defe ndants. The defense witnesses testified tha t the victim had made homosexual advances tow ard Williams on previous occasions. A

t the time of the homicide, ... the victim pulled a knife and made a n assault on Williams. Williams drew his knife and began "sw inging" it towar

ds the victim in self-defense. E isom attempted to stop the fight without success. Eisom had no knife according to defense witnesses. The jury resolved the sharp conflict in the evidence. State v. Eisom , slip op. at 2-3.

Donnie K

irklan d, convicted of

first-degree murder a nd serv ing a li fe sentence in the Department of Corr ections, was a state w

itness at the trial. At the post-conviction heari ng, he testified that he was asked whether he had been promised anything in ex change for his testimony. He recalled that his re sponse was that he had been "promised protectio n" and nothing more. He insi sted this portion of his trial testimony w

as false.

Kirkland claimed that on the day after the stabbing, he told investigators that he

did not see anything. H e contended that he was show n a statement of two other inmates, R alph Miller and Michael Nolen, both of whom later testified at trial, and was asked by officers to write out a statement to resemb le those. He complied with their request. Kirk land testified at the post-conv iction hearing that he did not see the stabbing and that he swore falsely at trial "[b]ecau se they told me that would g ive me a time cut."4 Kirkland also claimed that the District Attorney 's office hinted that they would seek his transfer to federal prison or to another state prison system. He contended that on four or five occas ions before and after the petitioner' s trial, then Assistant District Attorney General Mack McCoin gave him twenty dollars. He testified that he was also g iven special phone priv ileges in that he "was

allowed to use the phone ... any time [he] wanted to." He claimed that he use d the District Attorney's credit car

d to make long distance phone cal ls about ten times.

Kirkland contend ed that wh en he met with prose cutors se veral days before trial so that they could go over his testimony, he acknowledged that his statement was not true. Ki rkland testified that he spoke w ith his own attorney , Don Reed, about the matter to make sure he "didn't get messed out of [his] time credit." Kirkland remembered that he contacted the pe titioner at his first opportunity in July of 1996 to advise him that he w ould be willing to testify at the evidentiar y hearing.

The petitioner, who conceded that he had filed a prior petiti on for postconviction relief which was ruled upon in 1991, testified that he did not learn until 1995 or 1996 that the state might have failed to correct the fal se testimony and might have failed to rev eal exculpatory ev

idence. He claimed that his appointed counsel in the first petition had no knowledge that the inmates ha d any evidence helpful to him.

Mark Fowler, the pet itioner's trial couns el, testified that he did not recall anyone sayin g that Kirkland may not have been present during the stabbing. Attorney Fowler s pecifically recalled asking the state to discl ose any deals made with witnesses w

ho were going to tes

tify at the trial.5 Mack McCoin, who at the time of this hearing w as in the private practice of law, partic

ipated in the prosecution of the peti tioner as an assistant district attorney g eneral. He testified that Kir kland had never giv

en any indication that his pre

trial stat ement was fal se. Attorne y McCoin described K

irkland at the time of trial as a fearful, young, white male serving a life sentence. He remembered that the homicide "occurred between several blacks in the prison" and he recalled the re was considerable raci al polarization in the prison. While McCoin acknowledg ed that he offered protection for Kirkland and discu ssed moving him to a different prison if necessary, he insisted that he had made no promises of a sentence r eduction or work release. While conceding it was possible that Kirkland had been given small amounts of money for personal items, M cCoin asserted there w as never an agreement that he would be pai d for his testimony. He di d acknowledge that Kirkland was allow

ed to call his mother and his attorney Reed regular ly, but denied that the phone privileg es were offered in exchang e for testimony. While admitting that it was likely

the state paid for the phone calls , McCoin denied provi ding Kirkland with his credit car

d number.

Attorney McCoin did acknowledge that the District Attorney's office wrote a letter, dated January 2, 1986, to Steve Norris, Commissioner of Corrections, which included th e following:

Before testifying Kirkland was guaranteed that he would be taken out of the state system under the interstate compact or transferred to a Feder al Prison, if accepted. His preference is for a federal prison and your department, through Ron Bishop, assured Assistant District Attorney[s] Ingram and McCoin that every effort would be made to effectuate his preferenc e for a federal facility. ... With the approval of Ron Bishop, inmate Mic hael Nolan was promised that he would be transport ed to Knoxville work release with a back up of Shelbyville work release if there was an i ncompatible at Knoxvil le. (Emphasis in original).6 He also admitted that in 1988, while still employed by the District Attorney's office, he wr ote a letter to the Board of Parol es requesting lenienc y for Kirkland. McCoin conc eded that parole qualified as a form of sentence reduction. He insisted, however, that the letter to the Parole Board was written only because he felt Kirkland deserved c onsideration. He specifical ly recalled that after the trial Kirkland spent considerabl e time in "the hole" because that w as the only form of protection the state could or would offer. He claimed that he tried to help with parole well after the petitioner 's trial because he felt the Department of Corrections had treated Kirkland badly.

Attorney William Randolph testified that he had been appointed to represent the petitioner in the first petition for post-c onviction relief. He r

ecalled that the District Attorney

's office maintained an open file polic y when he filed the petiti on, but he had no recollection of either reviewing the file or seeing copies of the letters written to the Commissi oner of Corrections or the Pa role Board. He recalled hearing rumors that Kirkland had been p romised a transfer to the federal s ystem, but he could never find any proof of that

.

Roger Hughes, an inv

estigator for the TBI, testified that he had investigated the Easley murder and recalled his i nterview of Kirklan d. Agent Hughes testified that Kirkland nev er advised him that he did n ot witness the stabbing

.
Inmate Michael Nolen did not testify at the evidentiary hearing. At trial, however, he testified tha t he was to be "put in protec tion somewhere" by the st ate and that he would be "transferr ed for [his] own protectio n." The letter from the District Attorney's office to the Department of Correcti ons confirmed that Nolen was guaranteed he would recei ve work release.7 At the conclusion of the evidentiary hearing, the t rial court made the following findings of fact:

Donnie Kirkland's testimony Petitioner alleges the state failed to disclose the full extent of promises made to wi tness Donnie Kirkland and failed to correct his false te stimony. In response to tr ial counsel's request for "the nat ure of any preferential treatment or other general consideration" promised state witnesses, the state re

sponded that the only promise was one of protection which coul d include transfers. Kirk land indicated in his testimony that he had been guaranteed protection. Prior to trial there ha

d been discussions by st ate officials with Kirklan d about the possibilities of transferring him to another state under the Interstate Compact Act or perhaps being transferred to a federal prison. The failure of the state to disclose these po ssible locations is not a failure t o disclose exculpatory

evidence. There has been no showing that there is a reasonable probability the result would have been any different if these details had been disclos ed. Furthermore, Kirkland's testimony s

tating that the only pr

omise was one of protection was not such that would require the state to correct this tes timony by giving furthe r details of possible locations of transfers. Petitioner also alleges

there were various

other promises mad e to Kirkla nd, includi ng clemency , time cuts, monetary payments, ph one privileges, etc

. Although there may have been phone privileges extended to Kirkland to speak with his attorney, this information would not be req uired to be revealed as exculpatory evidence . Other allegations conc erning promises made to Kirkland ar e not supported by clear and convincing evi dence. Likewise, the al legation that the prosecuting attorneys had been told that Kirkland's pretrial statement was false is not supported by cl ear and convincing evidenc

e. Accordingly, the allegations as to the state's failure to disclose exculpatory evidence re lating to Kirkland are without merit. Furthermore, this issue h as been waived by th e failure to raise the issue i n the first post-conviction relief hearing. The district attorney maintained an open-file policy at the time of the firs t post-conviction rel ief hearing. The file contained the 1 986 letter from the district attorney g eneral relating to possi ble transfers of Kirkland. The file also contai ned the 1988 letter from the assistant district attorney general recommending parole8 consideration . This issue has been wai ved pursuant to T.C.A. § 40-30-206(g). F urthermore, the three-year statute of limitations expi red prior to 1995. (Emphasis added).

The trial court made almost identical findings regardi ng allegations about Michael Nolen.

I

The petitioner's first iss ue is that the state should hav e corrected the false testimony of trial w itnesses Donnie Kirkland and Michael Nolen. See Giglio v. United States , 405 U.S. 150 (1972). He cl aims that both witnesses t estified at trial that they had merely been pr omised "protection." He clai ms their testimony wa s misleading and contends that th e evidence at the post-conv iction hearing established that Kirkland ha d been "guaranteed that he woul d be taken out of the state system ... or trans ferred to a Federal Prison" and that Nolen had been "promised that he would be transported to Knoxville work release" (citing the letters written by the District Attorney's office post-trial). He argues that the prosecutors failed to correct this misleading testimony and, in consequence, that he should receive a new tri al.

Under our statutory law, the petitioner bears the burden of proving his allegations by clear

and convincing evi dence. Tenn. Code Ann. § 40-30-210(f).On appeal, the findings of fact made by th e trial court are concl usive and will not be disturbed unless the evi dence contained in the record pr eponderates against them. Brooks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that the evidence preponderates against those findings. Clenny v. State , 576 S.W.2d 12, 14 (T enn. Crim. App. 1978).9 "[T]he state's knowing use of false testimony to convict an accused is violative of the right to a fair and impartial trial as embodied in the Due Process Clause of the Fourteenth Amendment to the U nited States Constitution and A rticle I, §§ 8 and 9 of the Tennessee Constitution." State v. Spurlock , 874 S.W.2d 602, 617 (Tenn. Crim. App. 1993). When a state witne ss gives false testi mony either on direct or during cr

oss-examination, the state has the absolute duty to cor rect that testimony. Giglio , 405 U.S. 150; Napue v. Illinois , 360 U.S. 264 (195 9). In our view, the evidence did not preponder ate against the trial cou rt's conclusion that any specifics relating to the promises of protection did not need to be corrected or the determination that the phone priv ileges did not need to be rep orted.

Also, the doctrine of waiv er would bar the claim. So would the statute of limitations. The trial ju dge made the specific finding tha t the letter detailing the promises of transfer was in the District Attorney 's case file when the first postconviction petition was filed. He also found as fact that the District Attorney's of fice maintained an open file policy.The evidence does not preponder ate otherwise. Brooks , 756 S.W .2d at 28 9. Thus, these cla ims were ava ilable an d could ha ve been presented in the first petit ion.

The post-conviction statut e in effect when the petition w as filed defines waiver: (g) A ground for reli ef is waived if the petiti oner

personally or throug h an attorney failed to present it for determination in any procee ding before a court of compete nt jurisd iction in which the gr ound cou ld have been presented unless: (1) The claim for relief is ba sed upon a constitutional right not recogniz

ed as existing at the t ime of trial if either the fed eral or sta te consti tution re quires ret roactive application of that right; or (2) The failure to present the g round was the result of10 state action in violati on of the federal or state constitution. Tenn. Code Ann. § 40-30-206(g). Our supreme court has held tha t "the rebuttable presumption of waiver i s not overcome by an all egation that the petitioner d id not personally, knowi ngly, and understanding ly fail to raise a gr ound for relief." House v. State , 911 S.W.2d 705, 714 (Tenn. 1995). The court continued, "[ w]aiver in the post-conviction contex

t is to be determined by an ob jective standard under w hich a petitioner is bound by the action or inaction of his attor ney." Id. Clearly, because the prosecutor maintained an open fil e policy during the time the first petition was filed, this claim was available at that time. There was no state action which impermissibly barred the petitioner from previously asserting this claim during his first petition. See Tenn. Code Ann. § 40-30-206(g) (2).

The new Post-Convicti on Procedure Act provides that the petitioner "must petition for post-convi ction relief under this par t within one (1) y

ear of the date of the final action of the highest state app ellate court to which an appeal is taken or, if no appeal i s taken, wi thin one (1)

year of the d ate on which the judgment became final." Tenn. Code Ann. § 40-30-202(a). Th e supreme court denied review in this case on March 9, 1987. Thus, thi s petition, filed in 1996, w as not timely.

Originally, the Po

st-Conviction Proce

dure Act of 1967 did not include a statute of limitations. Effectiv e July 1, 1986, the General Assembly adopted a three-year statute of limitations. Tenn. Code Ann. § 40-30-10 2 (repealed 1995). In consequence, any petitione r whose judgment had become final before July 1, 1986, had only three years thereafter to file a petition for post -conviction relief. State v. Masucci , 754 S.W.2d 90 (Ten n. Crim. App. 1988).

Here, the petitioner w

as subject to that three-y ear statute of limitations11 beginning "the date of the final action of th e highest state appellate court to which an appeal [was] taken...." Tenn. Code Ann. § 40-30-102 (repealed 1995). The 1995 amendment did not enlarge the ti me within which thi s petitioner could file, as "the enabling provisi on ... is not intended to rev ive claims that wer

e barred by the previous [three-yea r] statute of limitations." Carter v. State , 952 S.W.2d 417, 420 (Tenn. 1997).

In Burford v. State , 845 S.W.2d 204, 208 (Tenn. 1992), our supreme court held that in certain situations application of the s tatute of limitations in a post-conviction proceeding would violate due process. In determining whether there has been a vi olation of due process, th e essential

question i s whether the time period allowed by law provides petitioner a fair and reasonable opportunity to file suit. Id. In Burford , the petitioner could not file within the three-y

ear limitation absent a determination on his prior post-conviction petition. Our supreme court ruled that Burford was "caug ht in a procedural trap and unable to initiate litig ation ... despite the approach of the three-y ear limitation." Id. There was no such trap her e.

In Sands v. State , 903 S.W.2d 297 (Te nn. 1995), our supreme court further defined how to apply the Burford test. Courts must:

(1) determine when the limitations period would normally have begun to run; (2) determine whether the gr ounds for relief actually arose after the limitations period would normally have commenced; and (3) if the grounds are "later-arising," deter

mine if, under the facts of the case, a strict application of the limitations period would effectively deny the petitioner a reas onable opportunity to present the claim. In making this final determination, courts should carefully weigh the petitioner's liberty interest in "collaterally attack

ing constitutional v

iolations occurring during the conviction process," against the state's interest in preventing

the litigation of "stale and fraudulent claims." Sands , 903 S.W .2d at 301 (cita tions omitted ) (quoting Burford , 845 S.W.2d at 207,12 208).

By the use of these guideli nes, we have first deter mined that the limitations period for this petitioner's convic

tions began in March, 1987, when the supreme court denied the applic ation for permission to appeal. Second, the petitioner's Giglio claim was based on evidence available in the District Attorney's file when the petitioner filed his first post-conviction petition in 1989. T he petitioner, through his attorney, had access to this file. Thus, the violations could not q ualify as late arising grounds . The record indicates that no thing prevented the petit ioner from raising the issue before the three-year period of oppor tunity expired.

This court has held that the sta te's suppression of evidenc e may qualify as a Burford exception to the statute of li mitations. Wooden v. State , 898 S.W.2d 752 (Tenn . Crim. App. 1994). Even if the state had failed to disclose certain of the relev

ant evidenc

e before tria l, it mainta ined an open fi le policy during the

time the first post-convicti on petition was filed and thi s information was avail able to the petitioner or his counsel in 1989.

II The petitioner also argues that the state suppressed exculpato ry information. See Brady v. Maryl and , 373 U.S. 83 (1963). He spec ifically contends that the following exc

ulpatory material shoul d have been disclosed: (a) that the state had promis ed its witnesses tran sfers to more comfortable prison faciliti es; (b) that Kirkland w

as furnished cash before and after trial; (c) that Kirkland rec

eived special phone priv ileges; and (d) that Kirkland init ially stated he did not w itness the stabbing and that he was adv ised to write a statement13 similar to those given by other witnesses.

In Brady , the United States Supreme Cour t ruled that the prosecutor has a duty to furnish exculpatory evidence to the defendant. Exculpatory evidence may pertain to the guilt or innocence of the accused and/or the p unishment which may be imposed if the accused is convicted of the crime. State v. Marshall , 845 S.W.2d 228 (Tenn. Crim. App. 1992).

Any "suppression by the prosecution of evidence favor able to an accused upon request vi olates due process where the evidence is material either to guilt or punishment, ir

respective of the good faith or bad faith of the prosecution." Brady , 373 U.S. at 87. This duty t o disclose extends to al l favorable information irrespective of whether the evidence is admiss ible. Branch v. State , 469 S.W.2d 533 (Tenn. Crim. App. 1969). And, while Brady does not require the state to make an investigation for the defendant, it does burden the prosecuti on with the responsibility of disc

losing statements of witn esses favorable to the defense. State v. Reynolds , 671 S.W.2d 854, 856 (Tenn. Crim. App. 1984). The duty does not extend to information that the defense al ready possesses or is able to obtain or to information not in the possession or control of the prosecution. Banks v. State , 556 S.W.2d 88, 90 (Ten n. Crim. App. 1977).

Before this court may find a due process violation under Brady , the following elements must be e stablished: (1) the defendant must have req uested the information (unless the evidence is obviously exculpatory, in which case the state is bound to rel ease the information whether requested or not); (2) the state must have suppr essed the information; (3) the information must have been favorable to the1 This pe tition was filed u nder the new Ac t, which allow s for only on e petition. Th e appro priate proced ure wou ld be to file a m otion to reo pen. See Tenn. Code Ann. § 40-30- 202(c). The grounds for fil ing a motion t

o reopen are very

limited . One may be fil ed only i f one of the f

ollowi ng conditi ons are established: a new constitution al rul e is establ ished; new sci entifi c evidence shows act ual innocence; or

an enhanced sentence i s no longer val id because a pri or convict ion has been found invali d. Tenn. Code Ann. § 40- 30-217(a). The petiti oner fil ed a previous petiti on which was resolved on the merits. Under Tenn. Code Ann. § 40-30 -202(c), the trial court coul d have summarily di smissed this seco nd petition. See gene rally Fletche r v. State , 951 S.W.2d 378 (Tenn. 1997) (discussing t he approp riate proc edure fo r filing a mo tion to reop en and ruling the su prem e court h as jurisdic tion to review t he trial

court's di smissal of a motion t o reopen). No gr

ounds are all eged in thi s petit ion which would m eet the stric t requirem ents for a motion to reope n. 14 accused; and (4) the information must have been material. State v. Edgin , 902 S.W.2d 387, 390 (Tenn. 1995) (as amended on rehearin g); see also Kyles v. Whitley , 514 U.S. 419 (1995) (setti ng forth the standard for determining materiality ).

As previously indi cated, any claim based on pr omises of transfers to different prison facilities has been waived and is als o barred by the statute of limitations. The trial court, which characterized the phone privileges as merely allowi ng Kirk

land to t alk to h is attor

ney, ru led that

this informatio n would

not qua lify as exculpatory ev

idence. We tend to agree. That Kirkland w as allowed to speak with his attorney o r his mother is not exculpatory evidence. See Edgin , 902 S.W.2d at 390. As for the remaining allegations, the trial court, after hearing testim ony pro and con, found the particular cl aims were not establishe d by clear and convin cing evidence. Because the tri al judge who sees and hear s the witnesses is i n a better position to determine their credibility, his factual findings are binding on this court unless the evidence preponder ates otherwise. Brooks , 756 S.W.2d at 289. It does not. 1

Accordingly, the j udgment of the trial court is affirmed.15 __________________________________ Gary R. Wad e, Judge CONCUR:

______________________________ Paul G. Summe rs, Judge

______________________________ David G. Hayes, Judge