### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASVILLE Assigned on Briefs at Knoxville October 14, 2015

JAMES ANTHONY BURGESS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Putnam County No. 07

- 0676 David A. Patterson, Judge

No. M2015

- 00584

- CCA

- R3

- ECN

– Filed November 19, 2015



### _____________________________ Petitioner, James Anthony Burgess, appeals the denial of his petition for writ of error coram nobis. Because Petitioner has not identified any newly discovered evidence, we affirm the de cision of the coram nobis court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

T IMOTHY L. E ASTER , J.
, delivered the opinion of the Court, in which J AMES C URWOOD W ITT , J R

. and R OBERT H. M ONTGOMERY , J R ., JJ.
, joined.

James Anthony Burge ss , Pikeville

, Tennessee, pro se

. Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton

, Senior Counsel ; Bryant C. Dunaway , District Attorney General; and Beth Willis , Assistant District Attorney General, for the a ppellee, State of Tenn essee.

OPINION

Procedural History

Over eight and one

- half years ago, Petitioner invaded his former home and killed his estranged wife by shooting her nine times. Then, a s two children watched, Petitioner killed his wife‟s boyfriend by shooting him five times. Petitioner was convicted of two counts of felony murder, two counts of second degree murder, aggravated burglary, 1 and

1 Petitioner was convicted of especially aggravated burglary, but on direct appeal a panel of this Court remanded that conviction for modification and resentencing. State v. James Anthony Burgess , No. M2009

- 00897

- CCA

- R3

- CD, 2010 WL 3025524, at *7

- 8 (Tenn. Crim. App. Aug. 4, 2010), perm. app. denied (Tenn. Dec. 7, 2010).- 2

-

reckless endangerment. State v. James Anthony Burgess , No. M2009

- 00897

- CCA

- R3

- CD, 2010 WL 3025524, at *1

- 2 (Tenn. Crim. App . Aug. 4, 2010), perm. app. denied (Tenn. Dec. 7, 2010). He is now effectively serving two consecutive life sentences plus additional time

. James Anthony Burgess v. State , No. M2012

- 01308

- CCA

- R3

- PC, 2013 WL 1182990, at *1 (Tenn. Crim. App. Mar. 21, 2013) (upholding denial of post

conviction relief)

, perm. app. dismissed (Tenn. Sept. 11, 2013).

Petitioner killed the victims inside the marital home. James Anthony Burgess

, 2010 WL 302552 4, at *2. At the time of the crimes, Petitioner‟s wife was living in the marital home, but Petitioner was not. Id. at *1. On direct appeal, this Court considered whether there was a valid order of protection effective at the time Petitioner committed the crimes because, if there was not a valid order of protection, Petitioner could not have burglarized his own home as a matter of law. Id. at *4; s ee T.C.A. §§ 39

- 14

- 401 to

- 403. T his Court provided the following relevant facts:

The victim obtained an ex parte order of protection on February 22, 2008. As pointed ou t by the State, Appellant did sign the order when he was given notice of the entry of the order. The ex parte order was extended on March 26, 2007. The second ex parte order set a hearing date for April 5, 2007. The hearing was not actually held until A pril 20, 2007. According to Appellant he was present at the hearing. The trial court modified the order of protection only to the extent that Appellant and the victim should have contact to set visitation. Outside of setting visitation, the order of pro tection was still in effect. In addition, the trial court stated that Appellant should have visitation [. . .] two days each week. The trial court also ordered the payment of temporary child support. The first payment was ordered to be paid on May 1, 20 07. The order setting out this information was actually filed on May 7, 2007, two days after the murders.

James Anthony Burgess , 2010 WL 3025524, at * 4. Concluding that the trial court intended the May 7 order to be effective as of May 1, 2007, this Cou rt held that there was a valid order of protection restraining Petitioner from the marital home at the time he committed the murders and upheld the conviction for aggravated burglary. Id. at *4

- 6. Petitioner‟s convictions were affirmed as modified on dir ect appeal. James Anthony Burgess , 2010 WL 3025524.

Petitioner then filed a petition for writ of error coram nobis

, claimi ng that a warranty deed showed he was a legal owner of the marital home and that there was not a valid order of protection in effect at the time of the murders

. James A. Burgess v. State
, No. M2010

- 01517

- CCA

- R3

- CO, 2011 WL 320903, at *1 (Tenn. Crim. App. Jan. 20, 2011), perm. app. denied (Tenn. Apr. 14, 2011). This Court affirmed the denial of coram nobis relief, concluding that the warranty deed did not constitute newly discovered- 3

-

evidence and observing that, “ on direct appeal, this Court thoroughly addressed the Petitioner ‟ s claim that he was not excluded as an „ owner ‟ of the home under the burglary
statute. ” Id. at *4

- 5.

Petition er then filed a petition for post

- conviction relief

, arguing that his trial counsel provided ineffective assistance by failing to object to “ false evidence ” in regard to the order of protection

. James Anthony Burgess , 2013 WL 1182990. In affirming the de nial of post

- conviction relief, w e observed, “ While [A] ppellant has previously called into question the status of the order of protection, this Court extensively reviewed these issues on direct appeal and found in the [S] tate ‟ s favor. ” Id. at *5.

On Janu ary 29, 2015, Petitioner filed another petition for writ of error coram nobis, again challenging his aggravated burglary conviction on the basis that there was not a valid order of protection. He claim ed that a letter he received on March 17, 2014, from a n attorney

— which stat es that “there appears to be no Temporary nor Permanent Protection order in the file, my assumption is that your wife attempted to obtain one of those orders but was un successful; or in the case of a permanent order, never brought you before the Court to obtain that”

— constitutes newly discovered evidence which bears upon his aggravated burglary conviction. The coram nobis court quite sensibly denied relief.

Analysis

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.” T.C.A. § 40

- 26

- 105 (b) ; St ate v. Hart , 911 S.W.2d 371, 374 (Tenn. Crim. App. 1995). T he writ of error coram nobis is “an extraordinary procedural remedy,” designed to fill “only a slight gap into which few cases fall.” State v. Mixon , 983 S.W.2d 661, 672 (Tenn . 1999) (emphasis i n original). In order to seek coram nobis relief, a petitioner must “establish [] that the petitioner was „without fault‟ in failing to present the evidence at the proper time.” Harris v. State , 102 S.W.3d 587, 592

- 93 (Tenn. 2003). To be considered “without fault,” the petitioner must show that “the exercise of reasonable diligence would not have led to a timely discovery of the new information.” State v. Vasques , 221 S.W.3d 514, 527 (Tenn. 2007). The coram nobis court will then determine “whether a reasonable basis exists for concluding that had the evidence been presented at trial, the result of the proceedings might have been different.” Id. at 526.

A petition for coram nobis relief must be filed within one year after the judgment becomes final. T.C.A. § 27

- 7

- 103. For the purposes of coram nobis relief, a judgment becomes final thirty days after the entry of the judgment in the trial court if no post

- trial motion is filed, or upon entry of an order dis posing of a timely filed post

- trial motion.- 4

-

Mixon , 983 S.W.2d at 670. Whether a claim is barred by an applicable statute of limitations is a question of law, which we review de novo. Harris v. State , 301 S.W.3d 141, 144 (Tenn. 2010) (citing Brown v. Era chem Comilog, Inc. , 231 S .W.3d 918, 921 (Tenn. 2007)). However, t he State bears the burden of raising the statute of limitations as an affirmative defense. Id. ; Sands v. State , 903 S.W.2d 297, 299 (Tenn. 1995). Because the State did not raise the statut e of limitations as an affirmative defense, we must consider the merits of the petition.

After reviewing the record, we conclude that the coram nobis court did not abuse its discretion by denying relief without a hearing. The correspondence offered by Pe titioner does not constitute newly discovered evidence for coram nobis purposes. It is simply a hearsay opinion about Petitioner‟s case. Petitioner‟s claim that there was not a valid order of protection in place at the time he committed these murders has been previously adjudicated, and we will not revisit it now

, just as we have so declined on two previous occasions

. Strangely enough, Petitioner‟s petition contains a copy of the May 7, 2007 order which this Court construed as a valid order of protection on direct appeal. It is unclear whether this order was attached to the letter offered by Petitioner. Nonetheless,

w hatever the basis for the correspondence received by Petitioner, it does not undermine the previous determinations made by this Court and offers nothing new

.

Petitioner is not entitled to relief.

_________________________________ TIMOTHY L. EASTER
, JUDGE