07/03/2017

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs March 14, 2017

JERRY D. CARNEY v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 97-D-2821 Cheryl A. Blackburn, Judge

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No. M2016-01153-CCA-R3-ECN

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In 1998, a Davidson County jury convicted the Petitioner, Jerry D. Carney, of first degree 

premeditated murder. On direct appeal, this Court affirmed the Petitioner’s convictions. 

See State v. Jerry D. Carney, No. M1999-01139-CCA-R3-CD, 2000 WL 1335770, at *1 

(Tenn. Crim. App., at Nashville, Sept. 15, 2000), perm. app. denied (Tenn. April 24, 

2001). On December 19, 2014, the Petitioner filed his fourth petition for a writ of error 

coram nobis and in it alleged newly discovered evidence. The trial court issued an order 

on April 22, 2014, dismissing the petition as time-barred and meritless. We affirm the 

trial court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which NORMA MCGEE 

OGLE and CAMILLE R. MCMULLEN, JJ., joined.

Jerry D. Carney, Only, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Assistant 

Attorney General; Glenn R. Funk, District Attorney General; and Megan M. King, 

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

OPINION

A Davidson County jury convicted the Petitioner of first degree premeditated 

murder after evidence at trial showed that the Petitioner, on August 13, 1997, shot the 

victim, Craig Cartwright, six times. This court summarized the underlying facts and 

procedural history in our last opinion addressing the Petitioner’s third petition for a writ 

of error coram nobis.
2

Our direct appeal opinion provides the following summary of the proof 

presented at trial:

On the night of August 13, 1997, the [Petitioner], Jerry 

Carney, was “riding around” Nashville and drinking beer with his

friends Eric Bradshaw, Mike Shane, Jimmy Womack, and Melia 

Gribble. Erin Harris, another friend, paged the [Petitioner] and 

requested that he pick her up at 716 Virginia Avenue. On the way 

to Virginia Avenue, Bradshaw remarked that he believed that 

someone who had a problem with his brother, someone named 

“Shane” or “Shawn,” lived at that address.

Upon arriving at the residence, the four males exited the car 

and began urinating in the front yard. Bill Massey and [the victim] 

walked out of the residence to investigate. The [Petitioner] began 

asking several people, “Who is Shane?” [The victim] responded 

that he was Shane. Upon hearing [the victim] identify himself as 

Shane, the [Petitioner] quickly walked back to the vehicle and sat in 

the back seat behind the driver.

Massey approached the car on the driver’s side and noticed a 

gun on the seat near the [Petitioner]. Massey asked if the 

[Petitioner] had a problem. The [Petitioner] replied that there was 

no problem. Massey then requested one of the beers that was 

located in the back seat. The [Petitioner] handed Massey a beer. 

As soon as Massey touched the beer, the [Petitioner] grasped the 

gun with both hands. Massey threw down the beer and grabbed the 

[Petitioner], hoping to disarm him. [The victim] had moved to the 

passenger side of the car. Although Massey was in direct contact 

with the [Petitioner], the [Petitioner] never looked at Massey. 

Instead, the [Petitioner] pulled the slide of the gun back twice and 

fired six shots into [the victim] who was standing near the open 

passenger door.

The [Petitioner], Bradshaw, Shane, Womack, Gribble, and 

Harris sped away in the car to Bradshaw’s house. The [Petitioner] 

took a shirt and wiped the car, inside and out, in order to destroy 

evidence. He also removed a decal from the back glass of the car 

and tried to remove all of the spent shell casings from the car. The 
3

[Petitioner] entered Bradshaw’s house, removed his bloody clothes, 

and soaked them in water in the bathtub. He then went to sleep and 

slept until the next day when he was picked up by the police for 

questioning.

The [Petitioner] testified that he shot [the victim] in selfdefense. The [Petitioner] stated that he was afraid of Massey and 

[the victim] because they were much larger than he. The 

[Petitioner] claimed that Massey had grabbed the [Petitioner] by the 

shirt collar prior to the [Petitioner’s] retreat to the car. The 

[Petitioner] alleged that he feared Massey or [the victim] would hurt 

him or try to take his gun and use it against him.

Id.

The [P]etitioner later filed a petition for a petition for postconviction relief and a petition for writ of habeas corpus, both of which 

were denied. See Jerry D. Carney v. State, No. M2002-02416-CCA-R3-

PC, 2005 WL 351238, at *1 (Tenn. Crim. App. Feb. 14, 2005), perm. app.

denied (Tenn. June 20, 2005), and Jerry D. Carney v. David Mills, Warden, 

No. W2004-01563-CCA-R3-HC, 2004 WL 2756052, at *1 (Tenn. Crim. 

App. Dec. 2, 2004). Among other things, the [P]etitioner alleged in the 

post-conviction petition that trial counsel was ineffective for failing to 

object to the medical examiner’s testimony concerning the autopsy report, 

which was of the wrong victim. 2005 WL 351238, at *7. This court 

affirmed the post-conviction court’s findings that the [P]etitioner was not 

prejudiced by the erroneous report because whether the [P]etitioner shot 

and killed the victim was not an issue at his trial:

As the post-conviction court stated, the [P]etitioner asserted 

self-defense as a defense and whether he shot the victim or not was 

not an issue in the trial. In addition, the autopsy report was never 

shown to the jury and trial counsel had the opportunity to crossexamine the witness regarding the autopsy report. For these 

reasons, we conclude that the evidence does not preponderate 

against the post-conviction court’s conclusions.

Id. at *8.

On September 10, 2004, the [P]etitioner filed a pro se petition for 

writ of error coram nobis in which “he alleged various pieces of favorable 
4

evidence were withheld at trial by the State.” Jerry D. Carney v. State, No. 

M2005-01904-CCA-R3-CO, 2006 WL 2206045, at *2 (Tenn. Crim. App. 

July 31, 2006). The trial court dismissed the petition on the grounds that it 

was untimely, that several of the [P]etitioner’s allegations of favorable 

evidence had been previously addressed, and that the two remaining pieces 

of allegedly favorable evidence, which consisted of a piece of the 

[P]etitioner’s clothing and a hair that had been found on the victim, were 

not newly discovered and would not have changed the outcome of the trial. 

Id. at *2-4. On appeal, this court affirmed the judgment of the trial court by 

memorandum opinion pursuant to Rule 20, Rules of the Court of Criminal 

Appeals. Id. at * 1.

On May 2, 2006, the [P]etitioner filed a second petition for writ of 

error coram nobis in which he claimed that he had first learned at the 

hearing on his first petition for writ of error coram nobis “that a .22 caliber 

gun listed on a police report was actually found inside the vehicle in which 

the fatal shooting had taken place.” Jerry D. Carney v. State, No. M2006-

01740-CCA-R3-CO, 2007 WL 3038011, at *2 (Tenn. Crim. App. Oct. 17, 

2007). The trial court dismissed the petition on the basis that it was 

untimely and failed to state a claim for error coram nobis relief, and this 

court affirmed the judgment. Id. at *2-3.

Finally, on September 15, 2011, the [P]etitioner filed this, his third 

petition for writ of error coram nobis, or, in the alternative, motion to 

reopen his previously filed coram nobis petitions. In the instant petition, 

the [P]etitioner alleges that the medical examiner’s 2010 Mississippi arrest 

and subsequent guilty plea conviction to felony possession of marijuana 

and his 2010 Tennessee guilty plea conviction to official misconduct 

constitute newly discovered evidence that would have altered the outcome 

of his trial. The [P]etitioner argues that the medical examiner’s “negligent 

and deceptive acts” at the [P]etitioner’s trial and his “recent felonious act 

and official misconduct,” show that the medical examiner was not credible 

and that he committed fraud and aggravated perjury at the [P]etitioner’s 

trial.

On November 14, 2011, the trial court entered a detailed written 

order dismissing the petition on the grounds that it was untimely, that there 

were no due process grounds that required the tolling of the statute of 

limitations, and that the petition failed to state a cognizable ground for error 

coram nobis relief. 
5

Jerry D. Carney v. State, No. M2011-02766-CCA-R3-CO, 2012 WL 5193435, at *1 

(Tenn. Crim. App, at Nashville, Oct. 22, 2012). 

In this most recent petition, the Petitioner acknowledged filing this petition outside 

the one-year statute of limitations but asserted that due process tolling should be applied 

based upon later-arising evidence in the form of a trial witness’s August 2014 

recantation. The Petitioner submitted an affidavit signed by a state witness, Natasha 

Holland. The affidavit asserts that there was a “hostile environment” at the residence 

where the shooting occurred and that the victim acted aggressively toward the Petitioner. 

Further, Ms. Holland affirms that both the Petitioner and Massey had their hands on the 

pistol “at the time [she] heard the shots fired.” She recants her testimony about seeing 

the Petitioner point the gun at the victim and fire it. 

On April 22, 2016, the trial court issued an order denying relief. The trial court 

found:

[T]he limitations period [in this case] would have begun to run in April 

2001, when the Tennessee Supreme Court denied permission to appeal the 

Court of Criminal Appeals opinion. The filing of the petition for a writ of 

error coram nobis nearly 15 years later, therefore, is untimely.

The next step is to determine whether the grounds alleged in the 

coram nobis petition arose after the statute of limitations period expired, or 

in other words, whether the grounds were later-arising. As further 

discussed in Part III.B. of this order, the grounds Petitioner alleges are not 

“later-rising” grounds related to Petitioner’s case.

Accordingly, this Court concludes that nearly 15-year delay is 

unreasonable and that, as a matter of law, the [P]etitioner is not entitled to 

due process tolling. See, e.g., Billy Ray Irick v. State, No. E2010-02385-

CCA-R3-PD, 2011 WL 1991671 (Tenn. Crim. App., at Knoxville, May 23, 

2011). The petition is time-barred.

The trial court went on to consider whether Ms. Holland’s affidavit constituted 

“later-arising” grounds warranting relief and made the following findings:

This Court has reviewed the “newly discovered” evidence of Ms. 

Holland’s recantation in the form of her Affidavit and has compared it to 

her trial testimony, which also has been provided as an exhibit to the 

petition. Other than Ms. Holland making the blanket statement that her trial 
6

testimony was not true, and that her trial testimony that she observed 

Petitioner shoot the victim is false, Ms. Holland’s factual statements in her 

affidavit do not contradict her trial testimony. The only seemingly “new” 

information Ms. Holland provides is that the victim displayed signs of 

aggression towards Petitioner and both Petitioner and the victim had their 

hands on the firearm when it went off. Ms. Holland also provides the 

history of her conversations with the police where she said she volunteered 

the firearm may have been discharged by Bill Massey during the struggled 

with Petitioner, or simply discharged during the struggle with no one 

intending it to be fired. All of the statements Ms. Holland gave the police 

during her pre-trial interviews would have been known and available to the 

parties prior to trial and provided in the discovery.

Although Ms. Holland testified on direct that she saw Petitioner shoot the 

victim and fire a total of five times, during the cross-examination, 

Petitioner’s trial counsel (1) pointed out Ms. Holland’s prior 

testimony/statements where she said she saw Mr. Massey grab Petitioner, 

and Ms. Holland agreed that Mr. Massey was holding on to the Petitioner 

until the shots were fired; (2) pointed out Ms. Holland’s friendship with the 

victim and her sister’s relationship with the other passengers in the car to 

show bias against the Petitioner; and (3) explored that Mr. Cartwright may 

have been hiding a weapon in his hat.

As has been noted in the Court’s previous orders regarding the three 

prior petitions for writ of error coram nobis, at no point during the trial was 

there a dispute that Petitioner shot the victim. The issue at trial was 

whether the shooting was an act of self-defense. Petitioner’s trial counsel 

addressed the self-defense issues and conflicts in Ms. Holland’s pre-trial 

and trial statements that are raised in Ms. Holland’s 2014 Affidavit during 

his cross-examination of her at trial. The jury, therefore, heard this 

evidence and was able to make a credibility determination when rendering 

its verdict. Accordingly, Ms. Holland's affidavit does not raise any new 

issues to warrant the tolling of the statute of limitations nor does her 

affidavit provide Petitioner a cognizable claim for a writ of error coram 

nobis. Petitioner’s request for relief is denied. The Court further notes that 

in Ms. Holland’s Affidavit, in addition to indicating she felt pressured by 

the state and doing what “everyone wanted me to do”, Ms. Holland 

explicitly states that she “was also under threats made by Jerry Carney’s 

family and friends” and moved to Memphis until the trial was over. 
7

Moreover, the Court notes that Ms. Holland was not the only 

eyewitness who testified at trial. Eyewitnesses who testified at trial 

included Melia Gribble, Mike Shane, and William Massey. These three 

witnesses testified in addition to the State’s other witnesses: MNPD Officer 

Randy Jones. MNPD Sergeant Duane Phillips, and Officer Johnny 

Lawrence who responded to the shooting scene; MNPD Officer Jeff 

Biggerstaff, MNPD William Massey, MNPD Detective Brad Corcoran, 

MNPD Officer Earl Hunter, and Detective D. Satterfield who worked the 

scene and interviewed witnesses; and Dr. Emily Ward who participated in 

the autopsy. The Petitioner also testified at trial.

(citations omitted). It is from this judgment that the Petitioner appeals.

II. Analysis

On appeal, the Petitioner argues that the trial court erred when it dismissed his 

petition for a writ of error coram nobis because newly discovered evidence entitles him to 

relief. The Petitioner submits that Ms. Holland’s recantation is material and vital,

requiring the waiving of the statute of limitations. The State responds that the trial court 

correctly dismissed the Petitioner’s claim as untimely and that the stated grounds for 

relief do not constitute “newly discovered evidence.” We agree with the State.

Tennessee Code Annotated section 40-26-105 (2012) provides:

There is hereby made available to convicted defendants in criminal 

cases a proceeding in the nature of a writ of error coram nobis, to be 

governed by the same rules and procedure applicable to the writ of error 

coram nobis in civil cases, except insofar as inconsistent herewith. . . . 

Upon a showing by the defendant that the defendant was without fault in 

failing to present certain evidence at the proper time, a writ of error coram 

nobis will lie for subsequently or newly discovered evidence relating to 

matters which are litigated at the trial if the judge determines that such

evidence may have resulted in a different judgment, had it been presented at 

trial.

It is well-established that the writ of error coram nobis “is an extraordinary procedural 

remedy . . . [that] fills only a slight gap into which few cases fall.” State v. Mixon, 983 

S.W.2d 661, 672 (Tenn. 1999). Generally, a decision whether to grant a writ rests within 

the sound discretion of the coram nobis court. See State v. Hart, 991 S.W.2d 371, 375 

(Tenn. Crim. App. 1995). We, therefore, review for abuse of discretion. See State v. 

Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002).
8

A petition for a writ of error coram nobis must be filed within one year of the 

judgment becoming final in the trial court. T.C.A. § 27-7-103. This 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 v. State, 301 S.W.3d 141, 144 

(Tenn. 2010); see Mixon, 983 S.W.2d at 670 (“[W]e reject the contention . . . that the 

statute does not begin to run until the conclusion of the appeal as of right proceedings.”). 

In the present case, the judgment became final on February 11, 1999,1 when the trial 

court entered an order denying the Petitioner’s motion for new trial. The Petitioner did 

not file this petition for writ of error coram nobis until December 19, 2014, more than 

fifteen years later.

The one-year statute of limitations for a petition for writ of error coram nobis may 

be tolled on due process grounds if a petition seeks relief based upon newly discovered 

evidence of actual innocence. Harris, 301 S.W.3d at 145. In determining whether the 

statute should be tolled, the court must balance a petitioner’s interest in having a hearing 

with the State’s interest in preventing a claim that is stale and groundless. Id. Generally, 

“before a state may terminate a claim for failure to comply with . . . statutes of 

limitations, due process requires that potential litigants be provided an opportunity for the 

presentation of claims at a meaningful time and in a meaningful manner.” Burford v. 

State, 845 S.W.2d 204, 208 (Tenn. 1992). The Burford rule requires three steps:

(1) determine when the limitations period would normally have 

begun to run; (2) determine whether the grounds for relief actually arose 

after the limitations period would normally have commenced; and (3) if the 

grounds are “later arising,” 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 299, 301 (Tenn. 1995). As a general rule, the claim at issue 

must not have existed during the limitations period to trigger due process consideration. 

Seals v. State, 23 S .W.3d 272 (Tenn. 2000). Discovery of or ignorance to the existence 

of a claim does not create a “later-arising” claim. See Brown v. State, 928 S.W.2d 453, 

456 (Tenn. Crim. App. 1996); Passarella v. State, 891 S.W.2d 619, 635 (Tenn. Crim. 

App. 1994).

After reviewing the record, we conclude that the trial court abused its discretion in 

dismissing the petition as time-barred. The Petitioner contends that the trial court 

 

1 The trial court relied on the date that the supreme court denied application for review in the Petitioner’s direct 

appeal rather than the date that the judgment became final in the trial court, as is directed by the coram nobis statute. 
9

improperly dismissed the petition without an evidentiary hearing. We first note that this 

court has repeatedly held that, in general, trial courts are not required to hold evidentiary 

hearings when the petition for a writ of error coram nobis fails to meet the necessary 

prerequisites to file for such relief. See State v. Lingerfelt, 687 S.W.2d 294, 295 (Tenn. 

Crim. App. 1984); Cole v. State, 589 S.W.2d 941, 943 (Tenn. Crim. App. 1979); see also

State v. Johnny L. McGowan, No. M2007-02681-CCA-R3-C0, 2008 WL 4170273, at *3 

(Tenn. Crim. App., at Nashville, Aug.5, 2008), perm. app. denied (Tenn. Oct. 27, 2008). 

Since the Petitioner has not asserted his claim within the time allowed by the statute of 

limitations, we must now consider whether he has demonstrated that he is entitled to a 

tolling of the statute of limitations. 

The Petitioner has failed to state any ground for which the statute of limitations 

should be tolled. Further, the claims the Petitioner now raises are not cognizable within a 

petition for writ of error coram nobis. In Tennessee, a writ of error coram nobis should 

be granted when “subsequently or newly discovered evidence . . . may have resulted in a 

different judgment, had it been presented at trial.” T.C.A. § 40-26-105 (2003); Workman 

v. State, 41 S.W.3d 100, 104 (Tenn.2001). As the trial court succinctly laid out in its 

order denying relief, the Petitioner’s claims do not raise such evidence and, we conclude, 

therefore, that the trial court properly denied the relief sought by the Petitioner.

Finally, the Petitioner argues that the State failed to raise the statute of limitations 

as an affirmative defense. He correctly notes that the State failed to file a response to the 

petition at the trial court level. We agree that the statute of limitations is an affirmative 

defense that must be specifically pled by the State or is deemed waived. Harris v. State, 

102 S.W.3d 587, 593 (Tenn. 2003). However, we are reviewing the trial court’s 

dismissal of the petition on this basis; the State is not seeking to preclude our review of 

the trial court’s conclusions on this basis. Moreover, the Petitioner concedes in his 

petition that he was filing outside the statute of limitations in asserting that due process 

considerations require the tolling of the statute of limitations. See Sands, 903 S.W.2d at

299 (Tenn. 1995) (holding there is no waiver if the opposing party is given fair notice and 

an opportunity to rebut). Because the Petitioner raised the issue of statute of limitations 

in his petition, he cannot now claim he was not given fair notice of the defense or the 

opportunity to rebut it. 

Accordingly, the Petitioner has failed to demonstrate that the statute of limitations 

should be tolled in this case; therefore, we conclude that the trial court properly dismissed 

his untimely petition for coram nobis relief. The Petitioner is not entitled to relief. 

III. Conclusion
10

Based upon the foregoing reasoning and authorities, we affirm the coram nobis 

court’s judgment. 

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ROBERT W. WEDEMEYER, JUDGE