### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON

CARL E. ROSS, P RO 

### S E 

### v. STATE OF TEN NESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-26913 J.C. McLin, Judge

No. W2003-01448-CCA-R3-CO - Filed January 9, 2004

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by order pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner is appealing the lower court’s denial of coram nob is relief. After review of the record, we conc lude t hat th e Stat e's motion is well-taken and the trial court's order denying Petitioner coram nob is relief is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20 , Rules of the Court of Cr

iminal App eals

D AV ID G. H AYES , J., delivered the opinion of the court, in which J OE G. R IL EY and J OHN E VERE TT W IL LI AMS , JJ., joined.

Carl E. Ross, pro se.

Paul G. Summers
, Attorney Gene ral & Reporter; John Bledsoe, Assistant Attorney General, for the appellee, the State of Tennessee.

OPINION

In1995, Petitioner

was conv icted of two count s of attem

pt to commit

second degree murder, three counts of aggravated r obbery, and one

count of theft in excess of $1,000.00. See State v. Ca rl Ross, No. 02C01-9510-CR-00301
, 1 997 WL 30347, *1 ( Tenn. Crim. App. at Jackson, Jan. 28, 1997), perm. to appeal denied , (Tenn. Sept. 22, 1 997). Fo r these convi ctions, the trial court sentenced Petitioner to an effective sentence of 162 y ears at 60%. Id. This C ourt affirmed the convictions and sentences on January 28, 1997. Id. Petitioner subsequently sought post-conviction relief ; which was denied. See Carl Ross v . State , No. W1999 -014 55-CC A-R3 -PC, 2 000 WL 1670960, *1 (Tenn. Crim. App. at Jackson, Oct. 25, 2000), perm. to appeal denied , (Tenn. Apr. 16, 2001).

On December 3, 2002, Petitioner filed a petition for writ of error cor

am nobis relief in the Shelby County Criminal Court. As basis for the petition, Petitioner asserts that he should be granted-2-

a new trial based up on grou nds of newly discover ed evidence. As factual basis for this assertion, Petitioner claims that “co-defendant Charles E. McClelland was willing to provide an affidavit and testimony that petit

ioner wa s not an acco mp lice in the commission of the criminal acts.” Acknowledging

that the o ne-y

ear sta tute of limitations has expired, Petitioner asserts that “applying the statute of

limit ations would b e unconstitutional in this case because he did not have Charles McClelland’s statement recanting his trial testimony within the limitations per iod .” The Sta te responded

that due process did not require tolling the statut e of limitati ons beca

use the a lleged newly discover ed eviden ce does not show Petitioner’s actual innocence nor does it establish mitigating evidence relating to Petitioner’s sentence.

On March 20, 2002, the trial court denied Petitioner’s motion, fin ding tha t due proc ess did
notrequire

tolling o f the one -y ear sta tute of lim

itations. Sp ecifica

lly, the cour

t noted tha

t (1) th is is not a capital case, (2) the considerations alleg ed by the Petitioner do not outweigh the governmental interests at stake, and (3) the evidence ag ainst the Petitioner was great, including the testimony of a

police office

r identif yin g the Petitioner a

nd the fa ct that sto len items w ere fou nd in the vehicle and at the Petitioner’s home.

To the extent that the Petitioner seeks the benefit of a writ of error coram nob is, his claim is ti me barr ed. Th e stat ute of limi tati ons fo r that form o f reli ef is o ne year from a judgm ent's finality. See Tenn. Code Ann. § 27-7-103. Moreover, the Petitioner has not demonstrated the applicability of any

basis upon which he might be excused from the statute of limitations bar. See generally Workman v. State, 41 S.W.3d 100 (Tenn. 2001) (due process may toll statute of limitations where petitioner facing death penalty seeks to present claim of newly discovered evidence). With respect to the writ of error coram nob is, the Code p rovides: Upon a sho wing by

the defe ndant tha t the def endant w as without

fault in f ailing to present certain evidence at the prope r time, a writ of error coram nobis will lie for subsequently or newly

discovered evidence relating to matter s which were litigated at the trial if the judge determines that such e vidence may

have resulted in a different judgment, had it been presente d at the trial. Tenn. Code Ann. § 40-26-105. Although a witness's re cantation of his prior trial testimony may be newly discove

red evidence, Mixon, 983 S.W.2d at 672, before granting a new tria l on the basis of n ewly

discover ed reca nted testi mony , the tria

l court mus t find: (1)

it is reas onably

well satisfied that the testimony give n by the material witness wa s false and the new testimony is true; (2) the defendant was reasonably diligent in discovering the new evidence , or was surprised by the false testimony, or wa s unable to know of the falsity of the testimony until after the trial; and (3) the jury mig

ht have reached a differe

nt conclusion had the truth been told. State v. R atliff, 71 S.W. 3d 291 , 298 ( Tenn. Crim . App. 2001) (citi ng State v. Mixon, 983 S.W.2d 661, 673 n. 17 (Tenn. 1999). In this case, the Petitioner's claims, even if taken as true, do not fit within the category of cognizable claims. He is not seeking to bring new evidence before the court which might have had an effect on the judg ment. Indeed, at the Petitioner’s trial, Charle s McClelland testified that he had agreed to testify for the State in return for a fifteen-y ear sentence. See State v. Carl Ros

s , No. 02C01-9510-CR-00301, 1997 WL 30347, at * 2. On cross-examination, McClelland acknowledged that he had not bee n completely honest with the police. Id. Thus,-3-

McClelland’s credibility was e ffectively questioned at trial. Moreover, a police officer identified the Petitioner as being in the get-away vehicle and stolen items were discovered at the Petitioner’s home and in the car. Id. We cannot conclude that McCle lland’s r

ecanta tion would have had an impact on the result of the trial. Thus, c oram nobis relief, therefore, cannot lie.

Accordingly , it is ORDERED that the State’s motion is GRANTED. The judgment of the trial court is AFFIRMED in ac cordance with Rule 20, Rules of the Court of Criminal Appeals. Costs of this appeal shall be assessed to the State.

____________________________________ DAVID G. HAYES, JUDGE