IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs August 21, 2013

ADRIAN CURB v. STATE OF TENNESSEE

Appeal from the Criminal Court for Anderson County

No. B3C00073 Donald R. Elledge, Judge

No. E2013-00748-CCA-R3-PC - Filed August 30, 2013

Petitioner, Adrian Curb, filed a petition for post-conviction relief, or in the alternative, a

petition for writ of error coram nobis, challenging the conviction resulting from his 1997

guilty plea to aggravated assault. As grounds for relief, he claimed that his attempted first

degree murder indictment was improperly amended to aggravated assault, thus coercing him

into involuntarily pleading guilty to the amended charge. The post-conviction court

summarily dismissed the petition because petitioner failed to establish an exception to the

one-year statute of limitation for petitions for post-conviction relief. The court also

concluded that petitioner failed to demonstrate the requisite factors for newly discovered

evidence as required for writ of error coram nobis relief. Following our review, we discern

no error and affirm the judgment of the post-conviction court.

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

ROGER A. PAGE,J., delivered the opinion of the court, in which JOSEPH M. TIPTON, P.J., and

ALAN E. GLENN, J., joined.

Adrian Curb, Atlanta, Georgia, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; David S. Clark, District Attorney General; and Sandra N. C. Donaghy, Assistant

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

OPINION

I. Procedural History

Petitioner was indicted by an Anderson County grand jury on August 5, 1997, for

attempted first degree murder. On October 20, 1997, the State moved to amend the

indictment to aggravated assault with a deadly weapon. The trial court allowed amendment
of the indictment, and petitioner pleaded guilty to the amended charge. He received a sixyear sentence in this case but an effective eight-year sentence based upon alignment with

sentences from unrelated cases.

Petitioner filed his first and only petition for post-conviction relief, or alternatively,

a petition for writ of error coram nobis, on February 6, 2013. In it, he claimed that: (1) his

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conviction was predicated upon an involuntary guilty plea; (2) his conviction was obtained

by the use of a coerced confession; (3) the resulting judgment of conviction in this case is

void; (4) he received “newly discovered ineffective assistance of counsel”; and (5) he is

actually innocent of the charge. He further stated that the preceding five issues “are

predicated upon the impermissible amendment of the indictment.” The post-conviction court

summarily dismissed the petition, ruling that petitioner made no argument that his claims

should be considered outside of the post-conviction procedure act’s statute of limitations. It

also determined that petitioner failed to establish entitlement to coram nobis relief because

he failed to set forth any evidence that he was innocent or how any of the alleged newly

discovered evidence would have changed the indictment or his guilty plea. Moreover, the

trial court held that petitioner did not establish how his guilty plea was involuntary or

unlawfully induced. Petitioner appeals the post-conviction court’s order summarily

dismissing his petition.

A. Petition for Post-Conviction Relief

As it applies to this case, Tennessee Code Annotated section 40-30-102(a) requires

that “a person in custody under a sentence of a court of this state must petition for

post-conviction relief under this part within one (1) year of the date . . . on which the

judgment became final, or consideration of the petition shall be barred.” Our legislature has

emphasized the importance of a timely-filed petition, stating that “[t]ime is of the essence of

the right to file a petition for post-conviction relief or motion to reopen established by this

chapter, and the one-year limitations period is an element of the right to file the action and

is a condition upon its exercise.” Tenn. Code Ann. § 40-30-102(a) (2006).

A court cannot consider a petition filed after the expiration of the limitations period

unless it falls within one of the following statutorily-defined exceptions:

Petitioner mentions that he is also seeking alternative relief in the form of a writ of habeas corpus.

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However, it does not appear “‘upon the face of the judgment . . . ’ that [the] convicting court was without

jurisdiction or authority to sentence [the] defendant . . . .” Archer v. State, 851 S.W.2d 157, 164 (Tenn.

1993) (quoting State v. Galloway, 45 Tenn. (5 Cold.) 326, 336-37 (Tenn. 1868)). Moreover, the record

contains no indication that petitioner is being wrongfully imprisoned or that his liberty is being illegally

restrained on this Tennessee conviction. Id. (citations omitted);see Hickman v. State, 153 S.W.3d 16, 22-24

(Tenn. 2004). 

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(1) The claim in the petition is based upon a final ruling of an appellate

court establishing a constitutional right that was not recognized as

existing at the time of trial, if retrospective application of that right is

required. The petition must be filed within one (1) year of the ruling of

the highest state appellate court or the United States supreme court

establishing a constitutional right that was not recognized as existing at

the time of trial;

(2) The claim in the petition is based upon new scientific evidence

establishing that the petitioner is actually innocent of the offense or

offenses for which the petitioner was convicted; or

(3) The claim asserted in the petition seeks relief from a sentence that was

enhanced because of a previous conviction and the conviction in the

case in which the claim is asserted was not a guilty plea with an agreed

sentence, and the previous conviction has subsequently been held to be

invalid, in which case the petition must be filed within one (1) year of

the finality of the ruling holding the previous conviction to be invalid.

Tenn. Code Ann. § 40-30-102(b) (2006). The post-conviction court must also consider an

otherwise untimely petition if application of the statute of limitations would violate a

petitioner’s right to due process by denying him “a reasonable opportunity to raise a claim

in a meaningful time and manner.” Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000). “[T]he

principles of due process are flexible and require balancing of a petitioner’s liberty interests

against the State’s finality interests on a case by case basis.” Sample v. State, 82 S.W.3d 267,

273-74 (Tenn. 2002).

When a petitioner collaterally attacks his conviction and/or sentence outside of the

statute of limitations, the court must determine whether due process requires tolling. State

v. Harris, 301 S.W.3d 141, 145 (Tenn. 2010). In doing so, the “court must weigh the

petitioner’s interest in obtaining a hearing to present a later-arising ground for relief against

the State’s interest in preventing stale and groundless claims.” Id. (citing Workman v. State,

41 S.W.3d 100, 103 (Tenn. 2001)). A court should utilize the following three-step analysis

to balance the competing interests:

(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

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(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.

Id. (citing Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995)). “The ‘later-arising claim’

limitation in Sands reflects the concern that a petitioner who fails to assert an existing claim,

that is, a claim that is not later-arising, in a timely fashion may not expect due process relief

. . . .” Seals v. State, 23 S.W.3d 272, 278 (Tenn. 2000).

In summarily dismissing this petition, the post-conviction court correctly noted that

petitioner failed to assert that any of the exceptions to the one-year statute of limitations

applied to his claims. Further, upon our review, we conclude that petitioner’s “reasonable

opportunity” to seek post-conviction relief expired long before the filing of the petition.

Because petitioner has failed to allege any fact that would implicate due process concerns,

we conclude that the post-conviction court properly dismissed this petition in a summary

fashion.

B. Petition for Writ of Error Coram Nobis

The decision to grant or deny a petition for writ of error coram nobis on its merits is

left to the sound discretion of the trial court. Harris v. State, 301 S.W.3d 141, 144 (Tenn.

2010) (citing State v. Vasques, 221 S.W.3d 514, 527-28 (Tenn. 2007)). A trial court abuses

its discretion when it applies incorrect legal standards, reaches an illogical conclusion, bases

its decision on a clearly erroneous assessment of the evidence, or employs reasoning that

causes an injustice to the complaining party. State v. Ruiz, 204 S.W.3d 772, 778 (Tenn.

2006) (citing Howell v. State, 185 S.W.3d 319, 337 (Tenn. 2006)). The writ of error coram

nobis is an “extraordinary procedural remedy . . . into which few cases fall.” State v. Mixon,

983 S.W.2d 661, 672 (Tenn. 1999). Our legislature has limited the relief available through

the writ:

The relief obtainable by this proceeding shall be confined to errors

dehors the record and to matters that were not or could not have been litigated

on the trial of the case, on a motion for new trial, on appeal in the nature of a

writ of error, on writ of error, or in a habeas corpus proceeding. 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 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.

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Tenn. Code Ann. § 40-26-105(b) (2012). To demonstrate he is entitled to coram nobis relief,

petitioner must clear several procedural hurdles.

First, the petition for writ of error coram nobis must relate: (1) the grounds and the

nature of the newly discovered evidence; (2) why the admissibility of the newly discovered

evidence may have resulted in a different judgment had the evidence been admitted at the

previous trial; (3) the petitioner was without fault in failing to present the newly discovered

evidence at the appropriate time; and (4) the relief sought by the petitioner. Freshwater v.

State, 160 S.W.3d 548, 553 (Tenn. Crim. App. 1995) (citing State v. Hart, 911 S.W.2d 371,

374-75 (Tenn. Crim. App. 1995)). While petitioner alleged that the State withheld

exculpatory evidence, see Brady v. Maryland, 373 U.S. 83 (1963), and that he received

“newly discovered ineffective assistance of counsel,” he did not state what this withheld or

“newly discovered” evidence was, why the alleged evidence would have resulted in a

different judgment, or why he was without fault in presenting the alleged evidence. The

petition for writ of error coram nobis is facially invalid.

Indulging a liberal construction of this pro se petition, see Gable v. State, 836 S.W.2d

558, 559-60 (Tenn. 1992), we nonetheless note that a petition for writ of error coram nobis

must generally be filed within one year after the judgment becomes final. Tenn. Code Ann.

§ 27-7-103 (2000). When a petition is filed outside of the statute of limitations, the coram

nobis court must determine whether due process requires tolling. Harris, 301 S.W.3d at 145.

In doing so, the court should utilize the three-step analysis enunciated in Harris, set forth

above, in balancing “petitioner’s interest in obtaining a hearing to present a later-arising

ground for relief against the State’s interest in preventing stale and groundless claims.” Id.

(citations omitted).

In this case, the statute of limitations expired nearly fifteen years ago. By petitioner’s

own admission, all of the issues presented were “predicated upon the impermissible

amendment of the indictment.” Thus, the grounds for relief asserted by petitioner clearly

arose within the limitations period. On the facts of this case, we cannot conclude that a strict

application of the statute of limitations would deprive petitioner of due process by denying

him a reasonable opportunity to litigate these claims.

CONCLUSION

Based upon our review of the record, the relevant legal authorities, and the briefs of

the parties, we affirm the judgment of the post-conviction court.

_________________________________

ROGER A. PAGE, JUDGE

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