IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs February 29, 2012

EDWARD JEROME HARBISON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Hamilton County

No. 280296 Jon Kerry Blackwood, Senior Judge

No. E2011-01711-CCA-R3-PC - Filed May 31, 2012

Petitioner, Edward Jerome Harbison, appeals the Hamilton County Criminal Court’s

summary dismissal of his petition for writ of error coram nobis seeking relief from his 1983

convictions for first degree murder, second degree burglary, and grand larceny. Petitioner

claims that an order of a previous coram nobis court establishes a new predicate for review.

Petitioner also claims that a statement of a prosecutor during a previous hearing constitutes

“new evidence.” Following our review, we affirm the judgment of the error coram nobis

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 THOMAS T. WOODALL, J.,

joined. Jerry L. Smith, J., not participating.

Edward Jerome Harbison, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; and James E. Gaylord, Assistant

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Facts and Procedural History

This case involves an extensive procedural history. We begin with the succinct

summary of the chronology of the case and the facts underlying the conviction from this

court’s opinion affirming the previous error coram nobis court’s denial of relief:
In 1983, a Hamilton County Criminal Court jury convicted the

petitioner, Edward Jerome Harbison, of first degree murder and sentenced him

to death. The supreme court affirmed the conviction on direct appeal. See

State v. Harbison, 704 S.W.2d 314 (Tenn. 1986). Subsequently, the petitioner

filed a post-conviction petition. The trial court denied post-conviction relief,

and this court affirmed. See Edward Jerome Harbison v. State, No.

03C01-9204-CR-00125, 1996 Tenn. Crim. App. LEXIS 307, 1996 WL 266114

(Knoxville, May 20, 1996). Upon alleged discovery of new evidence, the

petitioner moved to reopen his post-conviction petition. The trial court

converted the motion to a petition for writ of error coram nobis and denied

relief.

. . . .

On the night of January 15, 1983, Frank Russell came home to find his

wife dead in their home. The house was in disarray and had been burglarized,

and there were signs of a struggle. After an investigation, the police went to

the home of Janice Duckett, who was the petitioner’s girlfriend and David

Schreane’s sister. There, the police recovered items taken from the Russells’

home. The police questioned David Schreane, who led the police to a marble

vase. Testing on the vase revealed the presence of blood. The police also found

fragments consistent with the vase in the petitioner’s car and questioned the

petitioner, who confessed to killing the victim. According to the confession,

the petitioner and Schreane went to the Russell home, found no one home, and

began putting items from the home into Schreane’s car. The victim returned

home, discovered the two men inside, and struggled with the petitioner. The

petitioner hit the victim several times with the marble vase, breaking all of the

bones in the victim’s head. At trial, the petitioner testified that he did not kill

the victim and was at Janice Duckett’s apartment on the night of the crime. He

stated that he confessed to killing the victim because the police threatened to

arrest Janice Duckett and take away her children. Janice Duckett also testified

at trial that the petitioner was at her home on the night of the murder. The jury

convicted the petitioner.

The supreme court affirmed the petitioner’s conviction in 1986, and this

court affirmed the denial of post-conviction relief in May 1996. In February

1997, counsel was appointed to represent the petitioner in a petition for habeas

corpus relief in federal district court. In October 1997, the Chattanooga Police

Department sent counsel two hundred six previously undisclosed documents

about its investigation of the case. In March 2001, the district court denied the

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petition for habeas corpus relief. In June 2001, the petitioner’s attorneys filed

a motion to reopen his post-conviction petition in the Hamilton County

Criminal Court, claiming the petitioner was entitled to relief in light of

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435

(2000). In December 2001, the petitioner’s attorneysfiled an amended petition,

arguing that the petitioner was entitled to relief under Apprendi and that the

petitioner received the ineffective assistance of counsel during the direct

appeal of his convictions because the attorney representing him on direct

appeal also represented Ray Harrison, who the petition claimed had been a

prime suspect in the victim’s murder. The amended petition also raised for the

first time a claim that the state withheld the Chattanooga Police Department

records in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10

L.Ed.2d 215 (1963). According to the amended petition, some of the police

department records were exculpatory because they indicated David Schreane

and Ray Harrison, not the petitioner, broke into the Russells’ home and killed

the victim. On February 13, 2003, the state filed a response to the allegations

in the petition, arguing that the petitioner's Brady claim was time-barred. On

April 22, 2003, the petitioner filed a motion requesting that the trial court treat

his motions to reopen as a writ of error coram nobis.

On October 13, 2003, the trial court held a coram nobis hearing.

According to the trial court’s order denying error coram nobis relief, the

purpose of the hearing was “to allow the parties to present evidence related to

the timeliness of the asserted Brady claims and related matters.” Judge William

B. Mitchell Carter testified that he was one of two attorneys who represented

the petitioner at trial and that his co-counsel for the case was deceased. He

filed many motions in the case, including motions for discovery and

exculpatory evidence, which were granted by the trial court. Judge Carter

stated that the petitioner insisted on using an alibi defense. However, the use

of an alibi defense was “complicated” by the fact that the petitioner had

confessed to killing the victim. At trial, the petitioner denied killing the victim

and stated that his confession was coerced because the police had threatened

to arrest his girlfriend and put her children in foster care. Judge Carter was

aware of allegations that the victim had been involved in selling stolen

property before her death, but he did not pursue the allegations during his

investigation of the petitioner’s case.

The petitioner introduced into evidence two hundred six documents

provided by the Chattanooga Police Department and had Judge Carter read

some of the police reports into evidence. According to the reports, a man

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named David Boss gave a statement to police about the victim’s murder. In the

statement, Mr. Bossrelated that the victim had sold stolen property to Charlene

Harrison, Ray Harrison’s wife, and that Ray Harrison had tried to sell the

victim a ring one week before the victim was killed. Mr. Boss also told police

that Charlene Harrison told Mr. Boss that Ray Harrison was in the Russell

house at the time of the murder. However, Mrs. Harrison told David Boss that

Ray Harrison did not kill the victim. Judge Carter testified that he was aware

Ray Harrison was a suspect in the case but he was unable to recall specific

information about Harrison. He acknowledged that the police department

records indicated that a week before the victim's death, Ray Harrison was mad

at the victim over a “ring deal” that had “gone bad.” Judge Carter testified that

he could not remember if he had had the Chattanooga Police Department

records while he was representing the petitioner, that having the records might

have affected his investigation of the case, and that the police department

documents might have been helpful to the defense.

William Gerald Tidwell, Sr., testified that he was appointed to represent

the petitioner in the post-conviction proceeding. He said that before the

post-conviction evidentiary hearing, he tried to obtain the Chattanooga Police

Department’s records regarding the petitioner’s case but received none. He

said that he only recently had become aware of the police department’s records

for the case and recently had learned that the victim may have been involved

in selling stolen property. He also stated that he had not known while

representing the petitioner that Charlene Harrison placed Ray Harrison at the

scene of the crime. He said that if he had had this information, he would have

brought it up during the petitioner’s post-conviction evidentiary hearing. He

said that he also had been unaware that the petitioner’s codefendant, David

Schreane, had threatened to accuse the petitioner of killing the victim if the

petitioner did not stop contacting Schreane’s girlfriend. Finally, Mr. Tidwell

stated that the police department records showed Ray Harrison had at one time

agreed to take a polygraph examination regarding the victim’s death if

Harrison’s attorney, Rodney Strong, could be present. However, Harrison later

refused to take the polygraph test. He said that Rodney Strong represented the

petitioner on direct appeal. Mr. Tidwell acknowledged that if he had known

Mr. Strong had represented Ray Harrison and if he had known about the

significant role Ray Harrison played in the case, he would have raised a

conflict of interest issue in the post-conviction proceeding.

On cross-examination, Mr. Tidwell testified that he never received an

indication that the Chattanooga police were trying to conceal evidence in the

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petitioner’s case. He did not recall ever seeing the documents introduced at the

coram nobis hearing. During his representation of the petitioner, he had no

indication that Rodney Strong was biased against the petitioner.

Rodney Strong testified that he handled the petitioner’s motion for new

trial and represented the petitioner on direct appeal. He stated that when he

was appointed to the petitioner’s case, he met with the petitioner and reviewed

the trial transcript. Mr. Strong testified that he had no recollection of

representing Ray Harrison. However, he acknowledged that a Chattanooga

Police Department record indicated he had represented Harrison. He said that

during the petitioner’s direct appeal, he had been unaware that Ray Harrison

was connected to the petitioner’s case and had not known that Charlene

Harrison had placed Ray Harrison at the scene of the crime. He said that if he

had been aware that he represented Ray Harrison and that Harrison was

connected to the petitioner’s case, he would not have accepted the appointment

to represent the petitioner. He said that if he represented Ray Harrison, it had

not affected his representation of the petitioner. He related that he did not raise

a Brady issue in the petitioner’s new trial motion because he had been unaware

of the police department records. On cross-examination, Mr. Strong stated that

he did not remember “dealing with Harrison” and that he had never known the

Chattanooga Police Department to hide police records.

Rosemarie Bryan testified that she was appointed to represent the

petitioner in February 1997 and was currently representing him. She testified

that in September 1997, she sent a letter to the Chattanooga Police

Department, requesting records in the petitioner’s case. In October 1997, the

police department sent her its file. According to Ms. Bryan, the file contained

“things that were fairly astoundingly amazing to us.” In November 1997, Ms.

Bryan filed the petitioner’s petition for habeas corpus relief in federal district

court. On cross-examination, Ms. Bryan testified that she did not file a petition

for writ of error coram nobis in state court right away because the petitioner’s

federal habeas corpus case was still pending. She was unable to recall any

specific discussions regarding whether to proceed in state court after the

receipt of the documents. She stated that she raised a Brady issue in the habeas

corpus petition and that the federal district court granted summary judgment

for the State in March 2001.

Dana Hansen, Ms. Bryan’s co-counsel in the instant case, testified that

she began working on the petitioner’s federal habeas corpus case in 1998. She

said that at the time she and Ms. Bryan received the police department

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documents, they could not file another post-conviction petition in state court

because state law allowed only one post-conviction petition and the petitioner

had filed a post-conviction petition in 1989. She stated that when the

Tennessee Supreme Court filed Workman v. State, 41 S.W.3d 100 (Tenn.

2001), it gave the petitioner an opportunity to seek relief through a petition for

writ of error coram nobis.

The trial court denied the petition for writ of error coram nobis. The

court disagreed with the petitioner’s assertion that he did not have an avenue

of relief until the Workman decision. The trial court stated that “[t]he statute

permitting petitions for writs of error coram nobis is not by any means new and

litigants have continually argued the application of the due process clause to

various statutes of limitations.”

The court noted that the petitioner became aware of the

alleged exculpatory evidence in October 1997 but waited

approximately fifty months “before seeking any review in state

court.” The trial court found that “the time within which the

petition was filed exceeds the reasonable opportunity afforded

by due process” and dismissed the petition on the basis that it

was time-barred.

Edward Jerome Harbison v. State, No. E2004-00885-CCA-R28-PD, 2005 WL 1521910, at

*1-4 (Tenn. Crim. App. June 27, 2005), perm app. denied (Tenn. Dec. 19, 2005) (footnotes

omitted).

In 2007, petitioner filed a second motion to reopen his post-conviction petition or,

alternatively, a petition for writ of error coram nobis. As grounds, petitioner alleged that he

obtained certified copies of the Chattanooga City Court docket for the day of his arrest that

showed he had been subject to a warrantless arrest. According to petitioner, it followed that

as a result of the alleged warrantless arrest, he was unconstitutionally seized. Petitioner

argued that the error was further compounded by the State’s prosecutorial misconduct in

failing to disclose the absence of a warrant.

The court held a hearing and subsequently denied relief on May 24, 2010. In doing

so, the court reasoned that petitioner’s pleadings did not satisfy the statutory requirements

for a motion to reopen a petition for post-conviction relief. The court further found that the

issue of probable cause to arrest petitioner had been previously addressed by the courts and

was not properly reviewable by writ of error coram nobis.

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After initiating an appeal from the previous error coram nobis court’s order, petitioner

dismissed his appeal to this court to pursue his request for executive clemency from the

Governor. On January 22, 2011, the Governor commuted petitioner’s death sentence to life

imprisonment without the possibility of parole.

Petitioner then filed the instant petition for writ of error coram nobis on May 23, 2011.

He claims to have found new evidence to support his previously litigated argument that the

lack of an arrest warrant, as established by the Chattanooga City Court docket, proved that

he was subjected to a warrantless arrest and was therefore unconstitutionally seized. That

new evidence allegedly consists of statements set forth in the previous coram nobis court’s

May 24, 2010 order denying relief. Petitioner further claims that the State created new

grounds by virtue of a statement made in its argument to the prior coram nobis court. The

instant coram nobis court summarily dismissed the petition that is the subject of this appeal.

II. Analysis

The decision to grant or to 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). To obtain coram nobis relief, petitioner must show that

the newly discovered evidence could not have been obtained before trial by either the

petitioner or his counsel exercising reasonable diligence. Vasques, 221 S.W.3d at 527-28.

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.

Tenn. Code Ann. § 40-26-105(b) (Supp. 2011).

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We note that petitioner’s claim arguably falls outside of the one year statute of

limitation. Tenn. Code. Ann. § 27-7-103 (2010). However, the State did not raise this issue

in its brief. The State has the burden of raising untimeliness as an affirmative defense.

Harris v. State, 102 S.W.3d 587, 593 (Tenn. 2007). Therefore, we will consider petitioner’s

arguments.

In support of this petition for writ of error coram nobis, petitioner maintains that a

“new predicate” exists to support issuance of the writ. The “new evidence” to which

petitioner refers is the order of the previous coram nobis court dated May 24, 2010. An order

issued by a trial court is not evidence. Charles Gross v. Michael K. McKenna, No. E2005-

02488-COA-R3-CV, 2007 WL 3171155, at *3 (Tenn. Ct. App. Oct. 30, 2007) (citing State

v. Draper, 800 S.W.2d 489, 493 (Tenn. Crim. App. 1990) (holding that “factual assertions

in orders regarding the underlying dispute are not ‘evidence’”), perm. app. denied (Tenn.

May 5, 2008)), distinguished on other grounds by State v. Alvarado, 961 S.W.2d 136 (Tenn.

Crim. App. 1996); cf. Cyrus Deville Wilson v. State, No. M2009-02241-SC-R11-CO (Tenn.

2012) (district attorney general’s hand-written note in file constitutes work product and is,

therefore, both non-discoverable and inadmissible).

Petitioner also contends that the statements of a prosecutor during a previous hearing

constitute “new evidence.” This court has previously considered and rejected that argument.

Draper, 800 S.W.2d at 493. Petitioner cannot employ a novel strategy to overcome a

procedural bar and justify our review of a previously decided issue. Petitioner simply has not

raised claims of “new evidence” that required the coram nobis court to conduct an

evidentiary hearing. See Harris v. State, 301 S.W.3d 141, 153-54 (Tenn. 2010) (Koch, J.,

concurring). The coram nobis court did not abuse its discretion in summarily dismissing the

petition without an evidentiary hearing. See Howard J. Atkins v. State, No. W2010-00092-

CCA-R3-C, 2010 WL 4274737, at *2 (Tenn. Crim. App. Oct. 26, 2010), perm. app. denied

(Tenn. Feb. 16, 2011) (applying “abuse of discretion” standard in reviewing coram nobis

court’s summary dismissal of a petition for relief).

Petitioner has obtained a thorough review of his issues over almost thirty years. In

state court, his claims have been subjected to direct review, one petition for post-conviction

relief, and three petitions for error coram nobis relief. He has also been denied habeas corpus

relief in federal court. Moreover, his death sentence was commuted to life imprisonment

without the possibility of parole by the Governor. All of petitioner’s claims not addressed

in this opinion have been previously litigated and are outside of the parameters of the writ

of error coram nobis. Tenn. Code. Ann. § 40-26-105(b) (Supp. 2011).

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IV. Conclusion

After a thorough review of the record, we affirm the summary dismissal of the petition

for writ of error coram nobis.

_________________________________

ROGER A. PAGE, JUDGE

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