IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 1, 2015

LORENZA ZACKERY v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2009-A-941 Seth W. Norman, Judge

No. M2015-00890-CCA-R3-ECN – Filed December 30, 2015

_____________________________

Lorenza Zackery (“the Petitioner”) pleaded guilty to two counts of rape of a child. 

Subsequently, the Petitioner filed a Petition for Writ of Error Coram Nobis (“the 

Petition”) alleging “newly discovered evidence” in the form of an affidavit from the 

Petitioner stating that the victim testified in a 2009 juvenile court hearing that she had no 

sexual contact with the Petitioner until she was fifteen years old. The coram nobis court 

denied relief. On appeal, the Petitioner argues that (1) due process requires that the 

statute of limitations be tolled; (2) the coram nobis court should have held an evidentiary 

hearing because the newly discovered evidence shows that the Petitioner was “factually 

innocent” of the crime of rape of a child; and (3) the State violated Brady v. Maryland, 

373 U.S. 83 (1963) when it failed to provide the Petitioner with a record of the juvenile 

hearing.1 Discerning no error, we affirm the judgment of the coram nobis court.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the Court, in which NORMA 

MCGEE OGLE and ROBERT H. MONTGOMERY,JR., JJ., joined.

Lorenza Zackery, pro se, Clifton, Tennessee.

 

1

For the sake of clarity, we interpret the Petitioner‟s brief to raise the above stated issues. As 

stated in the Petitioner‟s brief, the issues raised on appeal are (1) “Whether the trial court erred in denying 

[the Petitioner‟s] writ of error coram nobis petition without „ordering‟ an evidentiary hearing?”; (2) 

“Whether the statute of limitations should be tolled in this case? Due process violation?”; (3) “Issues 

newly discovered, Brady materials, inculpatory/exculpatory evidence?”; (4) “Federal issues violation of 

due process factual innocence claim?”
- 2 -

Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant 

Attorney General; Matt Stephens, District Attorney General Pro Tem;

2

and Brian 

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

OPINION

I. Factual and Procedural Background

Trial

The Petitioner was indicted with six counts of rape of a child, seven counts of 

rape, three counts of statutory rape by an authority figure, and one count of especially 

aggravated sexual exploitation of a minor. All of the charges involved the same victim, 

the Petitioner‟s step-daughter. On January 24, 2011, the Petitioner entered guilty pleas to 

two counts of rape of a child and received concurrent twenty-year sentences. In this 

court‟s opinion from the Petitioner‟s post-conviction appeal, the court included the 

prosecutor‟s following recitation of facts from the Petitioner‟s guilty plea submission 

hearing:

Had this matter . . . proceeded to trial, the State‟s proof as to Counts I and II 

of the Indictment would be that on two separate and distinct occasions, 

sometime after the family moved to Davidson County in June of 2003 and 

before the victim named in the indictments birthday which is 7/27/91, [the 

Petitioner] did engage in unlawful sexual penetration of the victim named 

in the Indictment, who was at the time a child less than 13 years of age, and 

that these events occurred at the family‟s residence on George Gaines Drive 

in Bellevue.

Lorenza Zackery v. State, No. M2013-00718-CCA-R3-PC, 2013 WL 6705995, at *1 

(Tenn. Crim. App. Dec. 19, 2013), perm. app. denied (Tenn. May 14, 2014) (alterations 

and ellipses in original). According to the State‟s response to the Petition, the Petitioner 

did not file any post-trial motions.

Post-Conviction Proceedings

The Petitioner filed a petition for post-conviction relief alleging, among other 

things, ineffective assistance of counsel which resulted in an involuntary and unknowing 

guilty plea. Id. At the Petitioner‟s post-conviction hearing, both the Petitioner and trial 

counsel testified about the victim‟s age at the time of the offenses. 

 

2 The Petitioner requested that District Attorney General Glenn Funk recuse himself from the case 

because General Funk had previously represented the Petitioner. 
- 3 -

The Petitioner maintained that all sexual activity with the victim was consensual, 

and he testified that he did not want to plead guilty to an offense he did not commit. Id.

at *2. The Petitioner acknowledged that trial counsel spoke with the victim and that the 

victim told trial counsel that no sexual activity occurred until after her thirteenth birthday. 

Id. The Petitioner also admitted that he had written a letter to his wife stating that he 

wanted the victim to change statements she had previously made and say that the sexual 

activity only occurred in 2006. Id. at *3. The Petitioner had not informed trial counsel 

about that letter, and at the time the Petitioner pleaded guilty, that letter was in the State‟s 

possession. Id. at *3. 

Trial counsel testified that, as the case unfolded, the Petitioner‟s story 

“significantly changed.” Id. Initially, the Petitioner told trial counsel that there had been 

“lots of sex” with the victim after she turned thirteen. Id. However, around the same

time that trial counsel explained the different sentencing ranges for rape by an authority 

figure and statutory rape by an authority figure, the Petitioner changed his story to say 

that he only had sex with the victim once after she turned fifteen. Id. Trial counsel 

recalled that “the [P]etitioner was adamant about proceeding to trial on the theory that he 

had only had sex with the victim one time.” Id. Trial counsel stated that the victim 

allowed him to take a recorded statement in which she recanted her assertion that any sex 

had occurred prior to her thirteenth birthday. Id. The victim also passed a polygraph test 

in which she said there was no sexual activity prior to her turning thirteen. Id. Trial 

counsel said he hoped to impeach the victim with these statements, but trial counsel also 

acknowledged that:

[T]here was overwhelming proof of guilt on the [P]etitioner‟s part, 

including a video he had made of himself and the victim having sex, an 

aborted pregnancy by the victim, and a second pregnancy carried to term 

and delivered when the victim was fifteen years old. Additionally, the 

[P]etitioner had made statements to others that he had been having sex with 

the victim since she was „little,‟ and he had made tape-recorded admissions 

to his wife and the victim.

Id. Trial counsel was certain that the Petitioner would have been convicted if he elected 

to proceed to trial. Id.

The post-conviction court denied relief and found that the Petitioner entered his 

plea voluntarily and knowingly and that he had failed to prove ineffective assistance of 

counsel. Id. at *7. This court affirmed that decision on appeal. Id. at *8.
- 4 -

Coram Nobis Proceedings

On February 19, 2015, the Petitioner filed the instant Petition for Writ of Error 

Coram Nobis claiming that he had newly discovered evidence in the form of the victim‟s 

testimony during an October 29, 2009, juvenile court hearing. The Petitioner claimed 

that the victim testified in that hearing that she did not have any sexual contact with the 

Petitioner until after her fifteenth birthday. A record of the juvenile court hearing was not 

included with the Petition. Instead, the Petitioner attached his own affidavit which stated 

the victim testified that she was fifteen years old when she started having sex with the 

Petitioner. Additionally, the Petitioner admitted in the affidavit that he attended and

testified at the same juvenile court hearing. Documents attached to the Petitioner‟s brief 

on appeal indicate that, in 2014, the Petitioner tried to obtain copies of the transcripts of 

that juvenile court hearing, but the records were destroyed in the May 2010 Nashville 

flood.3

In the Petition, the Petitioner argued that (1) due process required that the statute 

of limitations for error coram nobis claims be tolled; (2) the newly discovered evidence 

demonstrates the Petitioner‟s factual innocence with regard to his rape of a child 

convictions; and (3) failure to turn over the evidence to the Petitioner constituted a 

violation of Brady v. Maryland, 373 U.S. 83 (1963). In its response, the State argued that 

(1) due process did not require tolling of the statute of limitations because the Petitioner 

knew about the victim‟s testimony and did not present it at the post-conviction hearing; 

and (2) the evidence was not “newly discovered” because the Petitioner was present at 

the juvenile hearing. The coram nobis court denied relief without a hearing. In its 

written order, the coram nobis court noted that “these issues have previously been 

discussed in the post-conviction proceedings and on appeal.” Additionally, the coram 

nobis court found that due process did not require tolling the statute of limitations and 

that the evidence was not newly discovered. This timely appeal followed.

II. Analysis

Coram Nobis Claims

A writ of error coram nobis is an “extraordinary procedural remedy,” filling only a 

“slight gap into which few cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 

1999) (citation omitted). Tennessee Code Annotated section 40-26-105(b) provides that 

coram nobis relief is available in criminal cases as follows:

 

3 We note that the documents attached to the Petitioner‟s brief were not presented to the coram 

nobis court.
- 5 -

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 a 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.

Our supreme court has held that the writ of error coram nobis is available to challenge a 

guilty plea. Wlodarz v. State, 361 S.W.3d 490, 504 (Tenn. 2012).4

Unlike the grounds for reopening a post-conviction petition, the grounds for 

seeking a petition for writ of error coram nobis are not limited to specific categories. See

Harris v. State, 102 S.W.3d 587, 592 (Tenn. 2003). “Coram nobis claims may be based 

upon any „newly discovered evidence relating to matters litigated at the trial‟ so long as 

the petitioner establishes that he or she was „without fault‟ in failing to present the 

evidence at the proper time.” Id. at 592-93. Coram nobis claims are “singularly factintensive,” are not easily resolved on the face of the petition, and often require a hearing. 

Id. at 593.

As our supreme court has stated,

[I]n a coram nobis proceeding, the [coram nobis] judge must first consider 

the newly discovered evidence and be „reasonably well satisfied‟ with its 

veracity. If the defendant is „without fault‟ in the sense that the exercise of 

reasonable diligence would not have led to a timely discovery of the new 

information, the [coram nobis] judge must then consider both the evidence 

at trial and that offered at the coram nobis proceeding in order to determine 

whether the new evidence may have led to a different result. 

State v. Vasques, 221 S.W.3d 514, 527 (Tenn., 2007) (emphasis in original). In 

determining whether the new information may have led to a different result, the question 

before the coram nobis court is “whether a reasonable basis exists for concluding that had 

the evidence been presented at trial, the results of the proceedings might have been 

different.” Id. (citing State v. Roberto Vasques, No. M2004-00166-CCA-R3-CD, 2005 

 

4 We note that the Tennessee Supreme Court has recently indicated that it will review the issue of 

whether coram nobis relief should be available to challenge guilty pleas. See Order, Clark Derrick 

Frazier v. State, No. 2014-02374-SC-R11-ECN (filed Oct. 15, 2015) (“In addition to the issue raised in 

the application, the parties are directed to address whether the Court should reconsider its opinion in 

Wlodarz v. State, 361 S.W.3d 490 (Tenn. 2012)).
- 6 -

WL 2477530, at *13 (Tenn. Crim. App. Oct. 7, 2005)). The decision to grant or deny 

coram nobis relief rests within the sound discretion of the coram nobis court. Vasques, 

221 S.W.3d at 527-28.

Petitions for writ of error coram nobis are subject to a one-year statute of 

limitations. Tenn. Code Ann. § 27-7-103 (2014); Harris v. State, 301 S.W.3d 141, 144 

(Tenn. 2010). “The 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, 301 S.W.3d at 144 (citing Mixon, 983 S.W.2d at 670). Calculating the statute of 

limitations in this manner is consistent with the “longstanding rule that persons seeking 

relief under the writ must exercise due diligence in presenting the claim.” Harris, 301 

S.W.3d at 144; Mixon, 983 S.W.2d at 670. The State bears the burden of raising the 

statute of limitations as an affirmative defense. Harris, 301 S.W.3d at 144. 

In certain circumstances, due process considerations may require tolling the statute 

of limitations. Workman v. State, 41 S.W.3d 100, 101 (Tenn. 2001). To determine 

whether due process requires tolling, we must balance the State‟s interest in preventing 

“stale and groundless” claims against the petitioner‟s interest in having a hearing to 

present newly discovered evidence which may have led the jury to a different verdict if it 

had been presented at trial. Id. at 103. To balance these interests, courts should use a 

three-step analysis:

(1) determine when the limitations period would normally have begun to 

run; (2) determine whether the ground 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 297, 301 (Tenn. 1995); see also Harris, 301 S.W.3d at 145. 

Whether a claim is time-barred is a question of law, which we review de novo. Harris, 

301 S.W.3d at 144 (citing Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn. 

2007)).

a. Due Process Tolling

The Petitioner first claims that due process requires that the statute of limitations 

be tolled. The Petitioner pleaded guilty on January 24, 2011, and judgments of 

conviction were entered on the same day. The record indicates that no post-trial motions 

were filed. Accordingly, the judgment became final on February 23, 2011, and the 
- 7 -

statute of limitations expired on February 23, 2012. The Petitioner filed the Petition on 

February 19, 2015, well outside the one-year statute of limitations.

It is clear that the “newly discovered evidence” in this case did not “actually 

[arise] after the limitations period would normally have commenced.” See Sands, 903 

S.W.2d at 301. The juvenile court hearing in question was conducted on October 29, 

2009. As indicated in the Petitioner‟s affidavit, he was present and testified at that 

hearing. Accordingly, the Petitioner knew of the victim‟s juvenile hearing testimony

before he pleaded guilty and certainly before the statute of limitations period would 

normally have commenced. Therefore, the grounds for the Petition are not “later 

arising,” and due process does not require tolling the statute of limitations. See id. The 

Petition is time-barred.

b. Merits of the Petition

Additionally, the coram nobis court did not abuse its discretion when it found that 

the evidence was not “newly discovered” and denied relief without a hearing. As noted 

above, the Petitioner clearly knew about the juvenile court testimony before he entered 

his guilty plea. As such, the evidence is not “newly discovered.” Moreover, the 

Petitioner presented evidence to challenge the victim‟s age at the time of the offense 

during the post-conviction proceeding, but he failed to present evidence of the victim‟s 

juvenile court testimony at that time. Because the Petitioner knew about the victim‟s 

juvenile court testimony at the time of the post-conviction hearing, he was not “„without 

fault‟ in failing to present the evidence at the proper time.” See Harris, 102 S.W.3d at 

592-93. Accordingly, the coram nobis court did not abuse its discretion when it found 

that the evidence was not newly discovered without holding an evidentiary hearing.

Brady Claim

The Petitioner also contends that the State violated Brady when it failed to provide 

the Petitioner with a copy of the record from the October 29, 2009 juvenile hearing. In 

Brady, the United States Supreme Court held that “suppression by the prosecution of 

evidence favorable to an accused upon request violates due process where the evidence is 

material either to guilt or to punishment, irrespective of the good faith or bad faith of the 

prosecution.” Brady, 373 U.S. at 87. Such evidence includes “evidence deemed to be 

exculpatory in nature and evidence that could be used to impeach the state‟s witnesses.” 

Johnson v. State, 38 S.W.3d 52, 55-56 (Tenn. 2001). In order to prove a due process 

violation, 

(1) [t]he defendant must have requested the information (unless the 

evidence is obviously exculpatory, in which case the State is bound to 

release the information whether requested or not); (2) [t]he State must have 
- 8 -

suppressed the information; (3) [t]he information must have been favorable 

to the accused; and (4) [t]he information must have been material.

State v. Edgin, 902 S.W.2d 387, 389 (Tenn. 1995). However, “[t]he prosecution is not 

required to disclose information that the accused already possesses or is able to obtain.” 

Johnson, 38 S.W.3d at 56 (quoting State v. Marshall, 845 S.W.2d 228, 233 (Tenn. Crim. 

App. 1992)). The defendant must prove a Brady violation by preponderance of the 

evidence. Edgin, 902 S.W.2d at 389.

Here, the Petitioner was clearly aware of the victim‟s juvenile court hearing 

testimony prior to his pleading guilty. The Petitioner could have requested a copy of the 

juvenile court hearing testimony any time prior to the record‟s alleged destruction in the 

flood of May 2010, but he chose not to do so. Further, the State did not suppress the 

information because the Petitioner was at the hearing and heard the victim‟s testimony. 

The State was not required to give the Petitioner material he already possessed or could 

have obtained himself. See Johnson, 38 S.W.3d at 56. Accordingly, the Petitioner has 

failed to show that the State violated Brady when it did not give him a copy of the 

juvenile court hearing record.

III. Conclusion

For the aforementioned reasons, the judgment of the coram nobis court is 

affirmed.

_________________________________

ROBERT L. HOLLOWAY, JR., JUDGE