IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

April 12, 2022 Session Heard at Austin Peay State University1

THOMAS EDWARD CLARDY v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2006-B-1065 Jennifer Smith, Judge

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No. M2021-00566-CCA-R3-ECN

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For a 2005 shooting, a Davidson County jury convicted the Petitioner, Thomas Edward 

Clardy, of one count of first degree premeditated murder, two counts of attempted first 

degree premeditated murder, and three counts of reckless endangerment. The trial court 

imposed a life sentence. On December 8, 2020, the Petitioner filed a petition for a writ 

of error coram nobis, alleging newly discovered evidence in the form of an affidavit 

showing that he did not participate in the crime. The Petitioner acknowledged that he 

did not file the petition within the applicable statute of limitations but said he was 

entitled to an equitable tolling. The State agreed, and it asked the trial court for an 

equitable tolling and to hear the case on its merits. The coram nobis court, noting that 

it was not bound by the State’s concession, dismissed the petition as untimely. After 

review, we conclude that the coram nobis court erred and that the Petitioner is entitled 

to an equitable tolling of the statute of limitations. As such, we reverse and remand to

the coram nobis court for a hearing on the Petitioner’s error coram nobis claims. 

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

and Remanded

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN and JILL BARTEE AYERS, JJ., joined.

Jessica M. Van Dyke and Scott D. Gallisdorfer, Nashville, Tennessee, for the appellant, 

Thomas Edward Clardy.

Herbert H. Slatery III, Attorney General and Reporter; Richard D. Douglas, Assistant 

Attorney General; Glenn R. Funk, District Attorney General; and Melissa Dix, Assistant 

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

 

1 Oral argument in this case was heard before students on the campus of Austin Peay State 

University, Clarksville, Tennessee.

07/12/2022
2

OPINION

I. Facts

A Davidson County jury convicted the Petitioner of one count of first degree 

premeditated murder, two counts of attempted first degree premeditated murder, and 

three counts of reckless endangerment based upon the following evidence: 

On July 29, 2005, a group of men fired shots at Kirk, Melissa, and 

Kent Clouatre at an automobile body shop in Madison, Tennessee. State v. 

Thomas Edward Clardy, No. M207-02729-CCA-R3-CD, 2009 WL 230245, 

at *1 (Tenn. Crim. App. Feb. 2, 2009), perm. app. denied (Tenn. June 15, 

2009). One man’s shots killed Kirk and wounded Melissa, Kirk’s wife. Id. 

Another man’s shot wounded Kent, Kirk’s twin brother. Id. During the 

shooting, Kirk and Melissa’s two children and another child were sitting in a 

car at the body shop. Id. The group of men retreated to their vehicle and fled 

the scene. Id. Police recovered several spent cartridge casings, live rounds, 

and projectile fragments from the scene but did not recover any weapons 

believed to belong to the assailants. Id. at *7-8.

The identification of the perpetrators was the central issue during the 

investigation and at trial. Kent testified about his identification of Petitioner 

and testified regarding his descriptions of the other men. At trial, Melissa 

did not remember giving descriptions of the suspects to the police, even when 

confronted with her statements to the police.

Kent said that a man whom he knew as “T” fired the shots that killed 

Kirk and struck Melissa. “T” was the only one of the three suspects that Kent 

had seen before. Kent identified Petitioner as “T” in a photographic lineup 

and at trial. Kent testified that “T” used a “[s]emiautomatic .40 caliber” 

pistol. At the beginning of the investigation, Melissa gave police officers the 

initial “D” when attempting to identify one of the perpetrators, but later the 

initial changed to a “T.” Kent used the initial “T” every time that he was 

interviewed by Officer Cynthia Quirouette. Officer Quirouette maintained 

that “T” was the initial that came out through the rest of the investigation. 

However, she was not confident in the truthfulness of the witnesses during 

the investigation.

When describing the suspect who shot at him, Kent said, “He’s a little 

bit heavy set man, little shorter. He had gold, I guess in his teeth, diamonds 

were set sideways, when he gritted [sic] at me.” He described the weapon 

used by this man as a .38 caliber revolver. Kent described the third individual 

as a taller, thin guy. Melissa only described the third man. Her description 
3

was limited to the fact that he was wearing a blue shirt. When describing this 

suspect’s gun, Kent was unsure of the caliber, but stated that it was 

semiautomatic. However, neither Kent nor Melissa recounted this individual 

firing a weapon.

Melissa described the vehicle used by the suspects as a “'96 or '97 

Sable or Taurus, blue with an oval back.” Melissa also described the color 

as “blue or possibly green.” According to Officer Quirouette, Kent described 

the vehicle as an “'84 to '86 four-door Buick Century or Celebrity, silver or 

gunmetal gray.” Officer Quirouette admitted that the descriptions were 

“totally different.” However, at trial, Kent disavowed any statement that the 

car was a Buick and asserted that the vehicle was a “forest green Ford 

Taurus.” Royleesha Mason, Petitioner’s wife at the time of the crime, owned 

a teal green 1996 Mercury Sable, which is very similar in appearance to a 

Ford Taurus. That car was frequently driven by Petitioner.

After hearing these identifications along with other evidence of the 

crime, a jury convicted Petitioner for the first-degree murder of Kirk in Count 

One, the attempted first-degree murder of Kent in Count Two, the attempted 

first-degree murder of Melissa in Count Three, and the reckless 

endangerment of the three children in Counts Four through Six. Id. at *1.

Thomas Edward Clardy v. State, No. M2017-01193-CCA-R3-PC, 2018 WL 5046032, at 

*1-2 (Tenn. Crim. App. June 20, 2018), perm. app. denied (Tenn. Apr. 12, 2019) (footnote 

omitted) (citing State v. Thomas Edward Clardy, No. M2007-02729-CCA-R3-CD, at *1-2 

(Tenn. Crim. App. Feb. 2, 2009), perm. app. denied (Tenn. June 15, 2009)). The trial court 

imposed an effective sentence of life in prison.

The Petitioner unsuccessfully sought post-conviction relief based upon ineffective 

assistance of counsel, actual innocence, and photographs of an alternative suspect. Id. at 

*6-8. The post-conviction court denied him relief. On appeal, we concluded that the postconviction court had not erred. We held that counsel was not ineffective. We noted that 

the Petitioner claimed his actual innocence, as he had an alibi for the time of the crime and 

because there was a viable alternative suspect, Dantwan Collier. Id. The Petitioner proved 

that a .40 caliber cartridge casing found at the crime scene in this case matched a weapon 

used in a subsequent shooting by Mr. Collier. We stated that, while exculpatory, this 

evidence did not prove the Petitioner’s innocence by clear and convincing evidence, as 

there were three individuals who participated in the shooting in this case and the Petitioner 

could have possessed the firearm before Mr. Collier. About the photograph of the 

alternative suspect, we held that the post-conviction court erred by not admitting it at the 

post-conviction hearing to preserve the record but that any error was harmless. We too 

denied the Petitioner relief.
4

On December 8, 2020, the Petitioner filed a petition for writ of error coram nobis, 

alleging newly discovered evidence. In support, he reasserted many of the claims presented 

in his petition for post-conviction relief. Additionally, he attached an affidavit from Mr. 

Collier swearing that he did not know the Petitioner and had never received any property 

of any kind from the Petitioner. The Petitioner acknowledged that he had filed his petition 

for a writ of error coram nobis beyond the applicable statute of limitations, but he asserted 

that he was entitled to an equitable tolling of that statute of limitations period. The State 

agreed and asked the court to consider the issue on its merits. 

The coram nobis court issued an order setting a hearing on the issue of equitable 

tolling. In the order, the court stated “the Court is not bound by the State’s position 

[agreeing with the Petitioner]; rather, it is obligated to independently analyze the issue, 

particularly since it bears on the Court’s authority to review the case at all.” At the hearing, 

the parties issued a joint stipulation of facts.

In the joint stipulation, the parties stated that the Petitioner, whose defense was 

based on mistaken identification, had been convicted by a jury of six charges, including 

first degree murder, stemming from the July 29, 2005 shooting and sentenced to life. 

During the trial, Officer Fleak testified that several types of spent shell casings, all of which 

had undergone ballistics testing, were found at the crime scene. The only ballistics match 

was to a 9mm gun found at the crime scene, and there was testimony that gun belonged to 

the murdered victim. The Petitioner’s fingerprints were not found on any items. 

The stipulation recounted that this court had affirmed the Petitioner’s conviction 

and that his Rule 11 application to the Tennessee Supreme Court had been denied. The 

Petitioner timely filed a pro se petition for post-conviction relief. Counsel Van Dyke was 

appointed to represent the Petitioner in Fall 2014, and she began investigating underlying 

facts and moving for evidence testing. In January 2016, in response to her efforts, new 

ballistics testing of the shell casings found at the crime scene revealed that two .40 caliber 

Smith & Wesson cartridge cases found at the crime scene were discharged from a gun later 

recovered in connection with a June 5, 2006 incident documented in MNPD Complaint 

No. 2006-310448. This incident involved an undercover drug purchase that led to the arrest 

of three people: Dantwan Collier, Joe Vaughn, and Kenneth Offutt. During the incident, 

Mr. Collier dropped the gun that was a ballistic match to the gun tied to the Kirk and Kent 

Clouatre shooting. Mr. Collier was charged with possessing that gun and cocaine, both 

charges to which he pleaded guilty.

Upon learning of this, Counsel Van Dyke identified Mr. Collier as an alternative 

suspect for the Clouatre shooting and began investigating Mr. Collier’s background, 

criminal history, and social media activity. Mr. Collier had pending felony charges and 

Counsel Van Dyke could not directly speak with him.
5

The January 2016 ballistics testing also indicated that two 9mm cartridge cases 

found at the scene of the Clouatre shooting were fired from a firearm used in connection 

with the January 5, 2006 murder of Lashelle Stevenson, MNPD Complaint No. 06-00763A. 

Mr. Collier’s cousin, Thomas Collier, pleaded guilty to the murder of Ms. Stevenson.

Counsel Van Dyke presented this evidence as part of a hearing on the Petitioner’s 

petition for post-conviction relief held on September 23, 2016. She contended that the 

Petitioner’s trial counsel was ineffective, in part, because he failed to investigate the 

cartridge cases and identify Mr. Collier as an alternative suspect. The post-conviction court 

denied his petition, this court affirmed the denial, and the Tennessee Supreme Court denied 

review.

The stipulated facts went on to note that in February 2019, Counsel Van Dyke 

submitted a petition on the Petitioner’s behalf to the Davidson County District Attorney’s 

Conviction Review Unit and met with a representative from that unit. As of the date of the 

stipulation, the review was ongoing.

In July 2019, a pro bono investigator for the Petitioner began investigating Mr. 

Collier. The investigator determined that Mr. Collier’s charges were resolved on July 27, 

2018, and Mr. Collier agreed to meet with the investigator. An investigator met with Mr. 

Collier in December 2019. Mr. Collier executed an affidavit saying that he did not know 

the Petitioner, had never met him, and had never received any property from him. 

In the stipulation of facts, the parties asserted that this court’s opinion denying the 

Petitioner’s petition for post-conviction relief had held that the Petitioner had not 

adequately shown his innocence. We based this holding in part on the fact that the new 

ballistics evidence, while exculpatory, did not rule out the possibility that the Petitioner 

and Mr. Collier were accomplices or that the Petitioner had possessed one of the guns 

before Mr. Collier. The parties further asserted that, in light of Mr. Collier’s affidavit, 

which contradicted this court’s opinion on both accounts, the Petitioner was entitled to 

relief. Further, the parties noted that the Petitioner had filed his petition for a writ of error 

coram nobis within one year from obtaining the affidavit.

The stipulation by the parties noted that the State agreed that the Petitioner was 

entitled to an equitable tolling of the applicable statute of limitations. The stipulation was 

signed by both parties. 

After noting the stipulation, the Petitioner’s attorney stated that she believed that the 

Petitioner had provided sufficient proof that the Petitioner met both requirements for an 

equitable tolling of the applicable statute of limitations. She stated that this was, obviously, 

a later-arising ground because the basis for the discovery evidence came from ballistics 

testing that inculpated two other men, neither of whom had any connection with the 

Petitioner. The second prong of an equitable tolling analysis requires that the Petitioner 
6

show that he should have a reasonable opportunity to present the evidence to the court. 

The Petitioner contended that he had not had such opportunity because, while the ballistics 

evidence was presented at the post-conviction hearing, this court held that the Petitioner 

and Mr. Collier could have known each other. This new affidavit showed that they did not 

know each other, and that the Petitioner had not given the murder weapon to Mr. Collier. 

This evidence, he posited, was proof of actual innocence. 

The State informed the coram nobis court that it believed that the Petitioner had met 

the standard for equitable tolling and that the Petitioner should be able to proceed with his 

coram nobis petition. The State further asserted that its “governmental interest” was in 

line with the Petitioner’s interest in that applying equitable tolling would allow the State to 

exercise diligence in further investigating these claims.

The trial court repeatedly asked if the State thought the Petitioner was “actually 

innocent,” contended that such a finding was necessary to apply an equitable tolling of the 

statute of limitations. The State informed the court that it did not believe that “actual 

innocence” was the appropriate standard and that, based upon the affidavit, the State 

believed that further investigation was necessary to determine why the two weapons used 

in the Clouatre shooting were found in the possession of Mr. Dantwan Collier and Mr. 

Thomas Collier, respectively. The affidavit, it said, ruled out that the two men were acting 

in concert with the Petitioner.

The coram nobis court took the matter under advisement and then ultimately denied 

the Petitioner’s writ on error coram nobis as being untimely filed. The court found:

After considering the petition and attachments, the record of 

proceedings, and argument of counsel, the Court rejects the positions of both 

parties. Petitioner has previously presented evidence that the weapons used 

in this case were likely also used to commit other crimes many months after 

the murder here. In an earlier post-conviction proceeding, a forensic firearm 

examiner analyzed cartridge casing recovered from the crime scene. That 

examination resulted in a determination that the casings were a match to 

weapons used in later shootings.

. . . . 

Based on that evidence, Petitioner argued that ballistics testing had 

established Dantwan Collier as an alternative suspect and supported a finding 

of actual innocence. But the trial court and the Court of Criminal Appeals 

rejected that claim.

The ballistic testing revealed that a .40 caliber cartridge casing found 

at the crime scene matched a weapon used in a subsequent shooting by 
7

Dantwan Collier and the two 9mm cartridge casings matched a weapon used 

in a subsequent shooing by Thomas Collier. This evidence, while certainly 

exculpatory, does not prove Petitioner’s innocence by clear and convincing 

evidence. There were three individuals who participated in the shooting in 

this case. This newly discovered evidence suggests that Dantwan Collier 

and/or Thomas Collier may have been involved. However, it does not mean 

that Petitioner was not one of the three men. Furthermore, it is possible that 

Petitioner possessed one of the firearms before Dantwan or Thomas Collier. 

So, even though the evidence is exculpatory, it does not prove Petitioner’s 

innocence by clear and convincing evidence.

Clardy, 2018 WL 5046032, at *7 (emphasis added). 

Petitioner has now presented to the Court an affidavit from Dantwan 

Collier dated December 10, 2019, which states, in pertinent part:

* * *

2. I do not know [the Petitioner]. I do not recall ever meeting anyone by that 

name.

3. I have never received any property of any kind from [the Petitioner].

Petitioner argues that this Affidavit establishes Petitioner’s innocence 

because it effectively dispels any possibility that Dantwan Collier was 

Petitioner’s accomplice in this case. The Court disagrees for the reasons 

stated by the Court of Criminal Appeals as set forth above and by the 

predecessor Judge in this case. Even taking the new affidavit at face value, 

it simply does not rule out, or even seriously undermine, the Petitioner’s

involvement in the crime here. Moreover, Petitioner's counsel candidly 

acknowledged at the April 23 hearing that guns “do get passed around on the 

street.” The significance of the ballistics evidence was previously considered 

in Petitioner’s post-conviction proceeding. Error coram nobis is not a 

“catch-all” remedy that enables convicted persons to ‘litigate and relitigate 

the propriety of their convictions ad infinitum.’”

The December 19, 2019 affidavit of Dantwan Collier does not amount 

to “new evidence of actual innocence” discovered after the expiration of the 

limitations period. Nunley, 552 S.W.3d at 828. Petitioner has thus failed to 

demonstrate that equitable tolling of the statute of limitations is appropriate.4

FN4 Despite its full-throated agreement with the Petitioner that 

equitable tolling is warranted, the State declined to take any 

position at the hearing before this Court on whether the 
8

Petitioner had presented “new evidence of actual innocence,” 

a requirement for tolling under Nunley, stating instead that it 

needed additional time for investigation. But the State has 

known since the post-conviction proceeding that ballistics 

analysis tied the weapons used in this case to later shootings 

perpetrated by Dantwan and Thomas Collier. It has known 

since the post-conviction proceeding that the Petitioner viewed 

Dantwan Collier as an alternate suspect, and it specifically 

defended against Petitioner’s claim of actual innocence in that 

proceeding.

(some footnotes and some citations omitted).

It is from this judgment that the Petitioner now appeals.

II. Analysis

On appeal, the Petitioner contends that the coram nobis court applied the wrong 

standard when summarily dismissing his petition. The Petitioner asserts that the coram 

nobis court failed to apply the Nunley equitable tolling criteria and focused instead on the 

merits of his claim. The State pivots from its previous agreement with the Petitioner and 

now posits that the petition was untimely filed and that the Petitioner is not entitled to 

equitable tolling. The State contends that the coram nobis court “implicitly considered” 

the equitable tolling factors and properly considered the merits of his claim. 

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). Coram nobis relief is provided for in criminal cases by statute:

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.

T.C.A. § 40-26-105(b) (2018); see State v. Vasques, 221 S.W.3d 514, 525-28 (Tenn. 2007) 

(describing standard of review as “whether a reasonable basis exists for concluding that 

had the evidence been presented at trial, the result of the proceedings might have been 

different” (citation omitted)). The grounds for seeking a petition for writ of error coram 
9

nobis are not limited to specific categories but may be based upon any “newly discovered 

evidence relating to matters which were litigated at the trial” so long as the petitioner also 

establishes that the petitioner was “without fault” in failing to present the evidence at the 

proper time. T.C.A. § 40-36-105(b).

The writ of error coram nobis is subject to a one-year statute of limitations which is 

measured from the date the judgment becomes final. Nunley v. State, 552 S.W.3d 800, 816 

(Tenn. 2018) (quoting State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999)); see also T.C.A. 

§ 27-7-103. Compliance with the one-year statute of limitations is an “essential element 

of a coram nobis claim.” Nunley, 552 S.W.3d at 828 (quoting Harris v. State, 301 S.W.3d 

141, 144 (Tenn. 2010)). The statute of limitations is calculated from the date the judgment 

of the trial court becomes final, either thirty days after its entry in the trial court if no posttrial motions are filed or upon entry of an order disposing of a timely, post-trial motion. 

Payne v. State, 493 S.W.3d 478, 484 (Tenn. 2016); Mixon, 983 S.W.2d 661, 670 (Tenn. 

1999). A petition for a writ of error coram nobis may be summarily dismissed if it fails to 

show on its face that it has been timely filed because the timely filing requirement in Code 

section 27-7-103 is an essential element of a coram nobis claim. Nunley, 552 S.W.3d at 

828.

“[B]efore a state may terminate a claim for failure to comply with procedural 

requirements such as 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.” Buford, 845 S.W.2d 204, 208 (Tenn. 1992); see also Workman, 41 

S.W.3d 100, 102 (Tenn. 2001) (applying the holding in Buford, a post-conviction 

proceeding, to error coram nobis proceedings). The one-year statute of limitations may be 

tolled if a petition for a writ of error coram nobis seeks relief based upon new evidence of 

actual innocence discovered after expiration of the limitations period. Nunley, at 828-29. 

“In keeping with the extraordinary nature of the writ,” a petitioner must set forth facts 

demonstrating that the claim arose after the statute of limitations would have started to run 

and that a strict application of the limitations requirement would deny him a reasonable 

opportunity to present his claim. Id. at 829. The coram nobis court possesses the discretion 

to summarily dismiss a petition if it fails to show on its face that it is timely or the averments 

merit due process tolling. Id. 

Whether due process considerations require tolling of a statute of limitations is a 

mixed question of law and fact, which is reviewed de novo with no presumption of 

correctness. Id. at 830. “The inquiry ends if his petition is not timely and if he has failed 

to demonstrate that he is entitled to relief from the statute of limitations.” Id. at 831 (the 

petitioner’s other claims pretermitted by his untimely petition and failure to establish due 

process tolling).

To be entitled to equitable tolling, a prisoner must demonstrate with 

particularity in the petition: (1) that the ground or grounds upon which the 
10

prisoner is seeking relief are “later arising” grounds, that is grounds that arose 

after the point in time when the applicable statute of limitations normally 

would have started to run; [and] (2) that, based on the facts of the case, the 

strict application of the statute of limitations would effectively deny the 

prisoner a reasonable opportunity to present his or her claims . . . .

Id. at 829 (quoting Harris, 301 S.W.3d at 153 (Koch, J., concurring)). In addition to the 

strict pleading guidelines requiring a petitioner to demonstrate that the grounds are later 

arising and that application of the limitations period would offend due process, the 

Tennessee Supreme Court has also concluded that “‘[a] prisoner is not entitled to equitable 

tolling to pursue a patently non-meritorious ground for relief.’” Id. (quoting Harris, 301 

S.W.3d at 153 (Koch, J., concurring)).

Coram nobis relief is available only when a court determines that the new evidence 

may have led to a different result, T.C.A. § 40-26-105(b), “or in other words, ‘whether a 

reasonable basis exists for concluding that had the evidence been presented at trial, the 

result of the proceedings might have been different.’” Id. at 816 (quoting State v. Vasques, 

221 S.W.3d 514, 527 (Tenn. 2007)). “[A] petition for a writ of error coram nobis need not 

show that the result of the proceeding would have been different had the evidence been 

available at trial—the petition need only show that the newly discovered evidence, had it 

been admitted at trial, may have resulted in a different judgment.” Id. at 818. Generally, 

a petitioner cannot premise relief on evidence “which is merely cumulative or ‘serves no 

other purpose than to contradict or impeach.’” Wlodarz v. State, 361 S.W.3d 490, 499 

(Tenn. 2012) (quoting State v. Hart, 911 S.W.2d 371, 375 (Tenn. Crim. App. 1995)), 

abrogated on other grounds by Frazier v. State, 495 S.W.3d 246 (Tenn. 2016). When 

impeachment or cumulative evidence does not establish grounds for showing that it may 

have resulted in a different judgment, it cannot serve as the basis of relief. Hart, 911 

S.W.2d at 375; cf. Vasques, 221 S.W.3d at 528 (concluding that the nature of newly 

discovered evidence as impeachment evidence is relevant to but not controlling of the 

determination of whether the evidence may have led to a different result).

In this case, the parties agree that the Petitioner filed his petition for a writ of error 

coram nobis beyond the applicable statute of limitations. We must turn to decide, de novo, 

whether the due process considerations require a tolling of the statute of limitations. The 

one-year statute of limitations may be tolled if a petition for a writ of error coram nobis

seeks relief based upon new evidence of actual innocence discovered after the expiration 

of the limitations period. Id. at 828-29. The ballistics evidence analysis obtained by the 

Petitioner’s attorney showed that the shell casings found at the scene matched two 

weapons, one of which was possessed by Dantwan Collier and the other possessed by 

Thomas Collier months after these offenses and used in different crimes. Dantwan Collier 

offered an affidavit that he did not know the Petitioner nor did he receive any property 

from him. 
11

As previously stated, to be entitled to equitable tolling, a prisoner must demonstrate 

with particularity in the petition: (1) that the ground or grounds upon which the prisoner is 

seeking relief are “later arising” grounds, that is grounds that arose after the point in time 

when the applicable statute of limitations normally would have started to run; [and] (2) 

that, based on the facts of the case, the strict application of the statute of limitations would 

effectively deny the prisoner a reasonable opportunity to present his or her claims. 

Based on our de novo review, we conclude that the ballistics evidence and affidavit 

were discovered after the expiration of the limitations period and are, therefore later arising. 

We further conclude that strict application of the statute of limitations would effectively 

deny the Petitioner a reasonable opportunity to present his claims. As the State claimed 

before the coram nobis court below, an adequate investigation into whether the Colliers 

were present at the Clouatre shooting and whether the Petitioner was with them is important 

to serve the ends of justice. The State’s interest in preventing stale litigation is outweighed 

by the Petitioner’s interest in presenting his meaningful claim.

Accordingly, we conclude that the Petitioner is entitled to an equitable tolling of the 

statute of limitations. This entitles him to a hearing on his claims contained in his petition 

for a writ of error coram nobis. At that hearing, the coram nobis court will consider all the 

evidence and determine the merits of his petition.

III. Conclusion

Based on the foregoing reasoning and authorities, we reverse the judgment of the coram 

nobis court and remand the case for a hearing on the Petitioner’s coram nobis petition.

____________________________________

ROBERT W. WEDEMEYER, JUDGE