IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

July 12, 2006 Session

RICHARD HALE AUSTIN v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. B58357-A C. Creed McGinley, Judge

No. W2005-02591-CCA-R3-CO - Filed December 13, 2006

The petitioner, Richard Hale Austin, was sentenced to death by a Shelby County jury on March 5,

1999. In October 2004, the petitioner’s counsel filed a petition for writ of error coram nobis on the

basis of newly discovered evidence in the form of recanted testimony. Without holding an

evidentiary hearing, the coram nobis court dismissed the petition, and the petitioner now brings this

appeal challenging the action. Upon review, we affirm the judgment of the lower court.

Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JERRY L. SMITH and

JOHN EVERETT WILLIAMS, JJ., joined.

Robert L. Hutton, Memphis, Tennessee, for the Appellant, Richard Hale Austin.

Robert E. Cooper, Jr.,Attorney General & Reporter; Mark E. Davidson, Assistant Attorney General;

William L. Gibbons, District Attorney General; and John Campbell, Assistant District Attorney

General, for the Appellee, State of Tennessee.

OPINION

In 1977, a Shelby County jury convicted the petitioner of accessory before the fact

to the first degree murder of Julian Watkins. The following facts formed the basis for the

petitioner’s conviction:

In early 1977, the [Memphis Police Department] suspected illegal gambling

at [the petitioner’s] pool hall and employed [Julian] Watkins, a reserve

deputy sheriff, to investigate. Based on Watkins’ testimony, the [S]tate

obtained indictments and arrest warrants for [the petitioner], his wife, and

several employees and associates, including Terry Casteel, the manager of the

pool hall. Watkins was to be the chief witness against them.
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After their arrests, [the petitioner], [Jack Charles] Blankenship, and Casteel

met. During their meeting, [the petitioner] and Blankenship spoke separately,

[and the petitioner] then asked Casteel to drive Blankenship to Watkins’

house. Casteel and Blankenship did not find Watkins there, but returned on

the morning of May 23, 1977, when Blankenship killed Watkins. After the

murder, Blankenship was seen with a large sum of money. The police

arrested him on May 24, 1977. Blankenship pleaded guilty and was

sentenced to life in prison.

[The petitioner] and Casteel were indicted for murder. Their trials were

severed after Casteel agreed to testify for the State that [the petitioner] hired

him to kill Watkins.

Austin v. Bell, 126 F.3d 843, 845 n.1 (6 Cir. 1997). th

The Tennessee Supreme Court affirmed the conviction and death sentence on direct

appeal. See State v. Austin, 618 S.W.2d 738 (Tenn. 1981), cert. denied, 454 U.S. 1128, 102 S. Ct.

980 (1981). This court denied the petitioner’s multiple requests for post conviction relief. See

Richard H. Austin v. State, No. 02C01-9310-CR-00238 (Tenn. Crim. App., Jackson, May 3, 1995)

(fourth petition for post conviction relief and first petition for writ of habeas corpus – consolidated),

perm. app. denied (Tenn. 1995); Richard Austin v. State, No. 02C01-9102-CR-00009 (Tenn. Crim.

App., Jackson, Aug. 14, 1991) (third petition for post conviction relief), perm. app. denied (Tenn.

1991); Richard Hale Austin v. State, No. 17 (Tenn. Crim. App., Jackson, Dec. 10, 1986) (second

petition for post conviction relief), perm. app. denied (Tenn. 1987); Richard Hale Austin v. State,

No. 33 (Tenn. Crim. App., Jackson, Apr. 17, 1985) (first petition for post conviction relief and first

petition for writ of error coram nobis – consolidated), perm. app. denied (Tenn. 1985). The

petitioner then filed a petition seeking a federal writ of habeas corpus and moved for summary

judgment. The federal district court partially granted relief on the issue of ineffective assistance of

counsel and jury instruction grounds. See Austin v. Bell, 938 F. Supp. 1308 (M.D. Tenn. 1996) (first

federal writ of habeas corpus and motion for summary judgment – consolidated); see also Austin v.

Bell, 927 F. Supp. 1058 (M.D. Tenn. 1996) (amended federal writ of habeas corpus) (denying relief

on subsequent issues raised by petitioner in an amended habeas corpus petition). The State appealed

the district court’s ruling that trial counsel was ineffective and that the reasonable doubt instruction

was unconstitutional. The Sixth Circuit Court of Appeals reversed the district court on all grounds

relating to the guilt phase of the petitioner’s trial, but it affirmed the finding that trial counsel was

ineffective at the sentencing phase. See Austin v. Bell, 126 F.3d 843 (6 Cir. 1997), cert. denied, 523 th

U.S. 1079, 118 S. Ct. 1526 and 523 U.S. 1088, 118 S. Ct. 1547 (1998). The court remanded the case

to the Shelby County Criminal Court for a new sentencing trial. On March 5, 1999, a Shelby County

jury sentenced the petitioner to death. The petitioner appealed, and this court affirmed the death

sentence on March 6, 2001. See State v. Richard Hale Austin, No. W1999-00281-CCA-R3-DD

(Tenn. Crim. App., Jackson, Mar. 6, 2001), aff’d, 87 S.W.3d 447 (Tenn. 2002), cert. denied, 538

U.S. 1001, 123 S. Ct. 1899 (2003).
Mr. Blankenship had not testified in the proceedings against the petitioner until he testified in the re-sentencing

1

hearing. Prior to the petitioner’s 1977 trial, the petitioner’s counsel obtained a statement from Mr. Blankenship wherein

Mr. Blankenship denied that the petitioner had hired him to kill the victim.

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In October 2004, the petitioner filed his Petition for Writ of Error Coram Nobis. The

petition alleged that on September 14, 2004, one of the petitioner’s attorneys, who represented him

at the re-sentencing trial, received a telephone call from Mr. Blankenship’s wife. Ms. Blankenship

informed counsel that her husband, who is incarcerated in East Tennessee, instructed her to tell

counsel that he lied during the petitioner’s re-sentencing hearing because his lawyer informed him

that if he implicated the petitioner in the Watkins’ murder, he could possibly receive early release

from prison. Counsel’s affidavit, attached to the coram nobis petition, stated that Mr. Blankenship

“had for 20 years consistently denied that [the petitioner] had hired him to commit the murder.” It

further stated that Mr. Blankenship, previous to the re-sentencing hearing testimony, “provided two

sworn statements[] and a federal deposition to that effect.” At the re-sentencing hearing, however, 1

Mr. Blankenship testified that the petitioner was involved in the Watkins’ murder. 

After receiving the telephone call, the petitioner’s counsel sent Private Investigator

Glori Shettles to interview Mr. Blankenship at Northwest Correctional Complex. Mr. Blankenship

confirmed the information in his wife’s telephone call to the petitioner’s counsel. Ms. Shettles’

affidavit, attached to the coram nobis petition, stated that Mr. Blankenship informed her that he lied

at the petitioner’s re-sentencing hearing. His counsel allegedly informed him that he would receive

assistance from the State in his early release efforts if he testified falsely, implicating the petitioner

in the Watkins’ murder. Therefore, he changed his story of approximately 20 years. Mr.

Blankenship told Ms. Shettles that he is unaware of his counsel’s motives for advising him to

provide false testimony. He further informed her that he has received “no special consideration since

providing [the] testimony.”

In its response to the petition, the State argued, in essence, that this testimony was not

newly discovered evidence and that the petitioner filed the petition outside the one-year statute of

limitations period. 

The coram nobis court, without holding an evidentiary hearing, issued a written order

denying the petition on November 8, 2005. The court ruled that even taking the petitioner’s

allegations as true, he was not entitled to relief under section 40-26-105. See T.C.A. § 40-26-105

(2003). The court found that Mr. Blankenship’s re-sentencing hearing testimony was corroborated

by Terry Casteel’s testimony, that nothing indicated that Mr. Blankenship’s re-sentencing testimony

was false other than his recantation, and that “[t]here is absolutely nothing in the record to suggest

the present testimony of [Mr.] Blankenship is true as opposed to the [re-sentencing] testimony.” The

court also held, implicitly, if not expressly, that no different result would have been achieved had

Mr. Blankenship testified differently in the re-sentencing hearing. Thus, the court held that Mr.

Blankenship’s recanted testimony “does not constitute newly discovered evidence which would

entitle the petitioner to relief.”
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The petitioner now appeals the lower court’s denial of his petition. Initially, he

asserted one basis for error, arguing that Tennessee Code Annotated section 40-26-105 mandates the

coram nobis court to conduct an evidentiary hearing. See T.C.A. § 40-26-105. The State responded

by asserting that the statute does not mandate a hearing and that the petitioner filed the petition

outside the one-year statute of limitations. In his reply brief, the petitioner points out that the coram

nobis court did not rule on the statute of limitations issue. The petitioner further asserts that if this

court decides this issue, despite the lower court’s failure to do so, then he is entitled to a hearing to

establish that his due process rights preclude the application of the statute of limitations.

A writ of error coram nobis is an extraordinary remedy by which a trial court may

provide relief from a judgment under narrow and limited circumstances. State v. Mixon, 983 S.W.2d

661, 668 (Tenn. 1999). The remedy is available by statute to a criminal defendant in Tennessee. See

T.C.A. § 40-26-105. This statute provides, in pertinent part:

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. The issue shall be tried by the court without the intervention of a

jury, and if the decision be in favor of the petitioner, the judgment

complained ofshall be set aside and the defendant shall be granted a new trial

in that cause.

Id.

Recanted testimony may qualify as newly discovered evidence. Mixon, 983 S.W.2d

at 672. A new trial should be granted on the basis of newly discovered recanted testimony, however,

only if: (1) the trial court is reasonablywell satisfied that the testimony given by the material witness

was false and the new testimony is true; (2) the petitioner was reasonably diligent in discovering the

new evidence, or was surprised by the false testimony, or was unable to know of the falsity of the

testimony until after the trial; and (3) the jury might have reached a different conclusion had the truth

been told. Id. at 673 n.17. The court may grant a petition for writ of error coram nobis if it

determines that if the newly discovered evidence had been introduced at trial, “there is a ‘reasonable

probability’ that the result of the proceeding would have been different.” State v. Workman, 111

S.W.3d 10, 17-18 (Tenn. Crim. App. 2002). The decision to grant or deny the petition lies within

the sound discretion of the trial court. See T.C.A. § 40-26-105; State v. Hart, 911 S.W.2d 371, 375

(Tenn. Crim. App. 1995). Therefore, we will not overturn the decision of the trial court absent a

showing of abuse of discretion.

We hold that the coram nobis court did not abuse its discretion when summarily

denying the petition without an evidentiary hearing because the first and third prong of the Mixon
Mr. Blankenship gave the first sworn testimony in a federal court deposition, which he recanted in the 2

petitioner’s re-sentencing hearing.

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factors for determining the viability of a coram nobis petition had not been met. See Mixon, 983

S.W.2d at 673 n.17.

First, we review the Mixon requirement the trial judge must be reasonably assured that

the recanted testimony was false and that the new statement is true. We acknowledge that, once a

coram nobis petitioner alleges in his petition that the trial testimony was false and that the new

statement is true and buttresses his petition with the witness’ affidavit, a hearing may well be

necessary to determine the issue because, without a hearing, the petitioner would have no

opportunity to present the live testimony of the recanting witness so that the coram nobis court could

fathom his or her credibility. Not even an affidavit of the recanting witness attached to the petition

can convey the permutations of credibility, such as demeanor, that live testimony conveys. Thus,

when a petition makes such a claim of a witness’ recantation, which, if true, could result in coram

nobis relief, the petitioner may well be entitled to an opportunity to prove his allegations. 

Thatsaid, we nevertheless discern no abuse of discretion in using Mixon’s first factor

as a basis for dismissing the petition. Initially, we note that the petitioner did not bolster his petition

with any sworn statement of Mr. Blankenship; he merely alleged via a sworn statement from third

parties that Mr. Blankenship, without the imprimatur of an oath, had disclaimed his sworn resentencing hearing testimony. See Hart, 911 S.W.2d at 375 (stating that an affidavit “must be

relevant, material and germane to the grounds raised in the [coram nobis] petition; and the affiant

must have personal knowledge of the statements contained in the affidavit”). Moreover, as the

coram nobis court pointed out, the record is devoid of any claim of corroboration that Mr.

Blankenship’s recantation is truthful and that his re-sentencing hearing testimony was false. To the

contrary, co-defendant Terry Casteel’s re-sentencing hearing testimony, according to the coram nobis

court, corroborated “almost every detail” of Mr. Blankenship’s re-sentencing hearing testimony.

Finally, we agree with the coram nobis court’s view that because Mr. Blankenship recanted sworn

testimony not once but twice, his appearance at a coram nobis hearing could not alone establish the 2

truth of the most recent recantation.

Second, we hold that the lower court acted within its discretion in dismissing the

petition on the alternate ground that different testimony byMr. Blankenship would not have affected

the imposition of the death sentence. The court opined that “[e]ven tak[ing] all allegations . . . as

true, . . . the petitioner is not entitled to relief . . . .” The court pointed to Mr. Casteel’s testimony

which corroborated Mr. Blankenship’s testimony. Also, the petitioner vigorously impeached Mr.

Blankenship, his own witness, via a sworn deposition rendered in a federal habeas corpus action, in

which deposition Mr. Blankenship had denied the petitioner’s involvement in the victim’s murder.

The re-sentencing jury fully heard about Mr. Blankenship’s prior sworn claim that the petitioner was

not involved. We believe the impeachment rendered Mr. Blankenship’s testimony ineffectual, that

the jury would have found Mr. Casteel’s testimony more appealing, and moreover that the result

would not have changed had Mr. Blankenship testified differently. SeePervis Tyrone Payne v. State,
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No. 02C01-9703-CR-00131, slip op. at 34 (Tenn. Crim. App., Jackson, Jan. 15, 1998) (holding that

petitioner suffered no prejudice by being denied a coram nobis hearing because “[t]here is no

question as to the confidence in the jury’s verdict”).

Furthermore, the coram nobis court correctly denied the petition without holding an

evidentiary hearing. Similar to habeas corpus hearings, coram nobis evidentiary hearings are not

mandated by statute in every case as the petitioner argues. Specifically, a “habeas corpus petition

may be dismissed without a hearing, and without the appointment of counsel for a hearing” if the

petition does not allege facts showing that the petitioner is entitled to relief. State ex rel. Edmondson

v. Henderson, 220 Tenn. 605, 609, 421 S.W.2d 635, 636 (Tenn. 1967) (citing State ex rel. Byrd v.

Bomar, 214 Tenn. 476, 381 S.W.2d 280 (Tenn. 1964)). Likewise, a coram nobis petition must state

a claim for coram nobis relief and satisfy the threshold statutory requirements before the court holds

an evidentiary hearing to determine whether the petitioner is entitled to coram nobis relief. In Harris

v. State, 102 S.W.3d 587 (Tenn. 2003), the Tennessee Supreme Court stated, “Unlike motions to

reopen, [coram nobis] claims are not easily resolved on the face of the petition and often require a

hearing.” Id. at 593 (emphasis added). This language reveals that some petitions may be dismissed

without a hearing. Moreover, remanding a case which failed facially to meet statutory requirements

for an evidentiary hearing would be an exercise in futility, and the interests of judicial economy and

efficiency are better served by disposing of the case prior to a hearing. See Pervis Tyrone Payne, slip

op. at 34; cf. Danny Ray Meeks v. State, No. M2005-00624-CCA-R3-HC, slip op. at 4 (Tenn. Crim.

App., Nashville, Dec. 1, 2005) (holding that petitioner is not entitled to a habeas corpus evidentiary

hearing when the petitioner failed to state a cognizable claim for habeas corpus relief).

Last, because the petitioner’s coram nobis petition fails with respect to the newly

discovered evidence statutory requirement, we decline to reach the statute of limitations issue.

Based on the foregoing analysis, the judgment of the lower court is affirmed.

___________________________________ 

JAMES CURWOOD WITT, JR., JUDGE