T he co urt b elo w t rea t ed all o f t he P eti t i o ne r’ s m o t i o ns an d p eti t i o ns, bo t h p o st

- co nv i cti o n a nd co ram no b i s, 1
as one case und er one d o cket num b er. P res um ab l y , t hi s was do ne b ecause t he m ai n focus o f t he und erl y i ng pro ceed i ngs
was on t he s er ol ogy r eport ex ami ni ng t he bl oo d t y pe on t he t owel f ound i n t he vi ct i m’ s apar t ment

. O n a pp eal , t he part i es
con ce n t r at e on t h e di s mi s s al of t h e pet i t i on f

or a wr i t of

er r or cor am n obi s an d, t h er ef or e, w e wi l l r ef

er t o t h e cou r t be l ow as t he co ram nob i s co urt f o r purpo ses of t hi s o p i ni o n. 

### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE

AT JAC KSON A ssi gne d onBr ie fs S ep te m be r 11, 200 7

TIMOT HY ROB ERS ON v. ST ATE OF TEN NES SEE

Appeal f rom the Circ uit Court for Gibson Coun ty No. 14863 Allen W. Wallace, Senior Judge

No. W2007-00230-C CA-R 3-P C - F iled Novem ber 7, 2007

The Petitioner, Timothy

Roberson, appe als the denia l of his motion t o reope n his po s t -c o nviction pe tit ion that a lle g e d in e ff

e c tiv e a ssi sta

nc e of c ouns e l. Th is Court is wit ho ut jur isd ic tio n to e nte rt a in this iss ue bec ause the Petition er h as failed to c omply with the statutory

require ments g overning

re vie w o f a

de nia l of a mot ion to r e op e n. Se e Te nn . Co de Ann. § 4 0- 30 -1 17 . A lso , in thi s a pp e a l, the Petitioner, convicte d of first degree murder a nd espec ially

a g gr a v a te d r o b b e r y in 1995, challeng es the denial of his motion for a sample of his own blood. The Petitioner soug ht to determine his blood ty pe in orde r to compar e it with the blood ty pe found on a

towel in the victim’s residenc e. The court deter mined that t h e mot ion for the Petitioner’s blood sample should be denied a s there w as substantial evidence of the Petitioner’s guilt presented at trial. Finally , the Petitioner appe als the dis mis sa l of

his pe tit ion

fo r a wr it o f e rr or

c or am no bis that a lle g e d n e wl y dis c ov e re d e vid e nc e in the contex t of a B rady

v. Maryland, 373 U.S. 83 (1963), violation. The c oram nobis cour t 1

c on c lud e d th a t any

re lie f w a s ti me -b arr e d a

nd th at the Pe tit ion e r h a d f a ile d to state a

c og niza ble

c la im. We a ff

ir m th e jud g me nt o f t

he Gi bs on

County Cir c uit Court

. Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

D AVI D H. W EL L ES , J ., delivere d th e opinion of the court, in which J OHN E VE R E TT W I L L I AMS and A L AN E. G L EN N , J J ., joined.

Richard Va

ug hn, Milan, Tennesse e, for the appe llant, Timothy

Roberson

Rob e rt E. Coo pe r, Jr., At

tor ne y Ge ne ra l and Re po rt e r; Ra c he l E. Willis , Ass ist ant A tto rn e y Ge ne ra l; and Ga rry Br own, District Attorney Gene ral, for

the appe llee, State of Te nnessee

.-2- OP IN ION

F ac tu al a nd P r oc e dur al B ac kgr ound In 199 5, a Gi bs on County jur y c on vic te d the Pe tit ion e r of fi rs t de g re e mur de r a nd e sp e c ia lly aggra vated r obbery , and he w as there afte r sentenc ed to conse cutive ter ms of life imprisonment without parole a

nd fiftee n y ear s. See S tate v. Timothy Roberson, No. 02C01-9508-CC-00245, 1997 WL736513 (Tenn. Crim. App., Jackson, Dec . 1, 1997), per m. to appeal den i ed, (Tenn. J une 29, 19 98 ). On

dir e c t a pp e a l, t his Court se t f or th t he fa c ts und e rl yingthe Pe tit ion e r’ s c on vic tio ns :
Clyde Smith, the fathe r of the vic tim , Ro be rt Smith, te sti fi e d th a t he saw h is son at approximately 9:30 p.m. on November 26, 1993. He said that on November 28, h i s m o t h er called and told him that she had not seen the vic tim over the Thanksg iving we ekend and that he alway s came by on Saturday . Mr. Smith s tated that he and his other

son, Charles S mith, went to the victim’s apa rtment. He te stified that he dis c ov e re d th e do or to the a pa rtme nt o pe n a

nd the lig hts out. A c c or din g to Mr. Smith, C harle s entere d the apartment and called t he victim ’s name, and when the victim did not respond, they left the a partment, believing that the vi ctim had stepped

outsi de . H e sa id t

hat th e y re tur ne d at about 6 :30 p. m. a nd dis c ov e re d th e vic tim dead, ly in g o n h is b a c k in a p o o l o f b lo o d in th e k it c h e n

. H e te s ti f ie d that the

a pa rtme nt h a d b e e n r ans a c ke d. Mr . Sm ithstate d th a t he late r f ound se ve ra l item s mis sin g fr om t

he vic tim ’s a

pa rtme nt, in clu di ng a

VC R. H e a lso sa id t

hat he tol d Se rg e ant M or

ri s th a t th e vic timg e ne ra lly c arr ie d a larg e sum of

c a shwi th h im. Acc ordingto Mr. Smit h, the victim had some lea rning disabiliti es, althoug h he wa s
n o tc l a s s i f

i e d a s b e i n g m e n t a l l y r e t ar d e d an d w a s a b l e t o f un c t i o ni ns o c i e ty.
Dr. Jerry Fr ancisc o, a patholog ist, testified t h at he alongwith Dr. Violet Hnilica conducte d an autopsy of the victim. He stated that the examina t i o n o f t he victim showed that the ca

use of de ath was mult iple injuries to the body . He sa id that the victim suffer ed blunt-for ce injurie s to the head, cuts to the nec k and a group of stab wounds to the che st. I n Dr. F ran ci s co ’s opinion, any of the ty pes of injuries

co u l d h av e c au s edth e v i ct i m ’s d ea th

. He t es t i fi edt h at t h e i n j uri es cau s edd am age to the brain, the voic e box, the lungs and the heart. He stated that there wer e thirtee n stab wounds to the che st that were deep, p en et ra ting the vic tim’s heart, lung s and ribs. He sa id that two of the cuts to the victim’s nec k sever ed the jugular ve in. D r. F ra nc isc o d e sc ri be d th e vic tim ’s blu nt- fo rc e in

juri e s to the he a d a s a

br ok e n s ku ll extending to the base of the skull. On cr oss-examination, Dr. Fr ancisc o testified that it was possible that death or unconsciousness could have occ urre d afte r the fir st few injuries wer e inflicted. H e also c oncede d that if the vi ctim was unconsc ious after the first few i njuries wer e inflicted, he would not have f elt any pain. Dr. F ranc isco admitted that there was no way for him to deter mine how quickly

the victim died, but he sa id t hat it wo uld have take n at le a st m inute s.-3- Serg eant Jerry

Morris of the Milan P olice De partment testified that he responde d to a call reg arding the victim. He said that he discove red the victim ly ing on his back a

nd partially

on his r ight side in the kitchen surr ounded by blood on the floor, wa ll and ref

rig erator. He state d that the victim was we aringa T-shirt and jeans and did not have shoes or socks on. Serg eant Morris testified that he f ound a towel with blood on it hanging o n a towel r ack in the bathroom. He a lso said that the bedroom ha d been r ansack ed in that clothes had be en take n out of draw ers a nd thrown at the f

oot of the bed. Serg eant Morris stated that the television in the living room was on but that the c able ha d been disc onnecte d.
Serg eant Morr is testified that the [P etitioner] wa s interviewe d by the Milan Police Depa

rtment on th ree occa sions: (1) during the initial investigation, (2) on November

29, 1 9 9 3, afte r Serg eant Morr is talked to the [P etitioner’s] gir lfriend, Clara L angl ey , an d an informa nt, and (3) on D ece mber 5, 1993. He said that he obtained a r ing f

rom Ms. L ang ley

and that the infor

mant told him about seeing the [P etitioner] with the VCR and the movies. Sergeant Morris said that during the second a nd third interviews of the [P etitioner], the [ Petitioner] g ave a s tatement. He t es t i fi ed that the [P etitioner] also ga ve a statement to the Tenne ssee B urea u of Investig ation on Nov em b er 3 0, 1993. Serg eant Morr is stated that afte r the [P etitioner’s] second intervie w, he re cover ed the victim’s ring , approximately nine movies, VCR and a re mote control, with the movies and the VCR being f ound at the [Pet iti on er’ s] ho me . H e sa id t hat he ve ri fi e d th a t th e VC R be lon g e d to the vic tim

. He testified that he also re cover ed the vi ct i m ’s wallet a nd diamond ring . Serg eant Morris stated that the [ Petitioner] took him to where the [Petitioner] di sposed of the wallet in a bush a

pproxi matel y

fifty fee t from Salinge r Road. He testified that he

rec overe d the vi ctim’s paychec k from a Texaco S tation in Mil an. He also identified the [P etitioner’s] hiking boots and stated that the [P etitioner] told hi m t h at h e was
wea ringthe boots during the time of the victim’s death.
The [Petiti oner’ s] s tateme nt give n to the Milan Poli ce D epar tment on November

29, 1993, ref

lects t hat t he [ Petitioner] claimed that he was at hi s brother’ s ho us e and

the n w e nt t o th e ho us e of Ni kk i W ri ght betwe e n th e ho ur s o f 9 :00 p. m.
and 2:0 0 a .m. on

No ve mbe r 2 6, 19 93 . It a lso sh ow s th a t the [ P etiti on e r] t old S er gea n tM o rr i s th ath e p urc h as eda r i n g an d VC R fr o ma gu y

wh o wa s dri v i n g a 19 91 or 19 92 Gr and

Pr ix ab out 10 :30 or 11 :00 p. m. I t state s that the [Pet iti on e r] t old the offic ers that he paid fifty dollars for the ring and that he tra ded an a ir pump for the VC R, a lth ou g h h e did no t kn owwh o o wn e d th e ite ms. Th e state me nt re fl e c ts that the [P etitioner] asserted that he g ot the air pump f rom the mother of his g irlfriend and that the movies b el o n ged to other people . I t also states that the [Petit ioner] denied ha rming the victim and that the [Petit ioner] claimed that he had not se en the victim. I n the interview, the [P etitioner] ex plained that his prints could be in the apar tment beca

use he visited the victim’s home a pproxi mately

three to f our months

ear lier.-4- The [Petiti oner’ s] writt en stateme nt give n to the TBIon November 30, 1993, ref lects that the [Petiti oner] admitted killing the victim. The [Petiti oner] t o ld the office rs that he wa s addicted to crac k coca ine and that he had bor rowe d money

from the vic tim , w ithwh om t

he [Pet it ione r] w or

ke d, on pr e vio us oc c a sio ns to p ur c ha se drug s. He told them that he a nd the victim were paid on the Wedne sday befor e Thanksg iving a

nd that he spent two hundre d dollars on cr ac kcoca ine which he smoked on Friday . The [Petiti oner] said that he we nt to the victim’s apartment betwee n 11:30 p.m. and midnight bec au se he w as out of money and wa nted to g et

some more c rac k coca ine. The [ P eti tioner] said that the victim was watching television when he arr ived and that he was wea ring a T-shirt and pants but no socks

or sh oe s. He sa id t

ha t he a sk e d th e vict im f

or tw e nty -f ive do lla rs , b ut t he vic tim ref used, say i n g t h at the [Petit ioner] owed him twenty -five dollar s from one w eek

ear lier. The [ Petitioner] said that he became mad and that he and the victim argued, pu sh e d a nd sh ov e d e a c h o the r n e ar t

he din ingta

ble . H e stat ed th at th e vic timtol d him to leave and the n slapped him on the rig ht side of his fac e.

Th e state me nt a lso re fl e c ts that th e [Pet iti on e r] t old the of fi c e rs that he “ los t it” when the victim slappe d him and that he g rabbe d a brown kitchen knife and struck the victim in the middle of t he chest. The [ Petitioner] said that he could not stop and that afte r t he knife broke, he beg an kicking the victim in the hea d, shoulders and side while the victim was lying in the kitche n floor. He said that he then pic ked up a sil ve r k nif e and sta bb e d th e vic tima g a in in th e c he st, a lth ou g h h e c ou ld n ot r e c a ll how many

times. The [ Petitioner] t old the office rs that the victim was still alive and was try ing to r emove a box cutter f rom his left pocke t to try

to stop him when he took the box cutter from the victim a nd cut the victim’s thr oat. The [Petiti oner] stated that he was so mad that he c ould not stop and claimed that he did not mea n to do it but that he lost his mind. Accordingto the [P etitioner’s] statement, the [Petit ioner] went to t he bathr oo m and

wi pe d h is h and s o n a

tow e l at so me po int

.
Th e [Pet iti on e r’ s] st a te me nt t o th e TB Ia lso sh ow s th a t the [Pet iti on e r] s a id that he looked throughout the apar tment for money or any

thing to sell, including the [Pet iti on e r’ s] be dr oo m dr e sse r d ra we rs . He a lso a dmi tte d ta kin g the vic tim ’s wa lle t, key s, ring , VCR and movies from the victim ’s ap artment. Accordingto the [P etitioner], the victim’s wallet contained one hundred and fifty dollars in c ash and

a pa y c he c k in the amou nt o f o ne hund

re d and fi ft

y -n ine do lla

rs

. Th e [Pet iti on e r] t old the offic ers that he went to his coca ine deale r’s apar tment in Milan immediately afte r leavingthe victim’s apar tment and purc hased c rac k coca ine. Acc ordi n g t o the [P etitioner], he took the VCR and movies t o h i s apar tment and threwthe victim’s wallet into a fie ld. The statement r efle cts that the [Petit ioner] conce ded ca shing the vic tim ’s pa

y c he c k at a

Te xac o th e nex t mo rning and us ingthe mon e y

to p ur c ha se
more c rac k coca ine.-5- Serg e an t M o r

r is a ls o te s ti f

ie d th a t t h e [P e ti ti o n e r ] g av e a

s tate me n t on De c e mb e r 5 , 1 9 9 3

. T h e s tate me n t r e f le c ts th a t th e [P e ti ti o n e r ] d e n ie d k illing the victim and that he cla imed that he had bla ckout spells and whe n he aw ok e, he saw a “f igur e,” a lthough he saw no one . On cr oss-examination, S erg eant Morr is testified that the [P etitioner] wa s cry ing and appea

red to be remorse ful duringthe statement g ive n to the po lic e de pa rtme nt on No ve mbe r 3 0, 19 93 . H e a lso state d th a t hi s investigation did not r evea l any thing that would c onflict with what the [Petiti oner] told him had occurr ed on the nig ht of the murder

.
Mik e Cle ary , a

n e mpl oy e e of Te xac o, te sti fi e d that the [Pet iti on e r] c ame int o the sto re at app ro ximate ly 5:3 0 a .m. and

a sk e d h im t o c a shthe vic tim ’s pa y ro ll chec k. He sa id that he ca shed the c heck, a lthough the [P etitioner] told him that he did no t ha ve any ide nti fi c a tio n w ithhim

. Bobby Mosley , owner

of the J ewe l Box in Mil an, identified a lady ’s diamond ri ngthat he size d f

or the [Pet iti on e r]. He te sti fi e d that he ha d earl ie r sol d the ri ngto the vic tim

.
Clara L ang ley testified t hat s he was living with the [ Petitioner] at t he ti me the offe nse occur

red and that she worke d with both the [Petitioner] and the victim. S he ide nti fi e d th e la dy ’s dia

mon d r inga s th e on e the [Pet iti on e r] g ave to h e r at 4: 00 a .m.
on the Satur da

y mor nin g a ft e r t

he vic tim ’s de a th whe n th e [Pet iti on e r] a sk e d h e r t o marry him. Ms. L ang ley

said that she aske d him whe re he g ot the ring and that the [P etitioner] told her that he g ot it at a jewelr y store in Humboldt. She also identified the VCR, remote control and videotapes and st ated that the [ Petitioner] brought them into their house on either Saturday or Sunday . She said that when s h e aske d the [P etitioner] wh er e h e go t t he VCR, the [P etitioner] told her that he had g otten the items from a man who had a f lat tire and he claimed that he traded an air pump for the VCR. On cross-e x amination, Ms. L angl ey testified that she suspec ted that the [P etitioner] was spendinga lot of money on drug s around the time of his arre st. She al s o s t at edth atth e [ P et i t i o n er ] wa s re al n erv o u s o nS at urd ay m o rn i n g.

Dr. Ly nn Z ag er, a

clinical psych o l o gi s t, testified that she examined the [Pet iti on e r] o n N ov e mbe r 2 , 9 , a nd 16 , 1 99 4, to d e te rm ine the [Pet iti on e r’ s] competenc y

to stand trial and his mental condit i o n at t he time of the of fense . She said that her e valuation showed t h at the [P etitioner] was an a lcoholic and wa s addicted to c ocaine and mar ijuana. She stated that the [P etitioner] was intox icated at the time of the of

fense . I n Dr. Z ag er’ s opinion, the [ Petitioner’s] behavior wa s pa rt l y a r e s u l to f

h i s i n t o xi c a t i o n , an d

th e [P e t i t i o n e r ’ s ] i n t o xi c a t e d sta te

c omp ro mis e d th e [Pet iti on e r’ s] a bil ity to c on fo rm

his be havio r t o th e re qu ir e me nts of the law . Dr. Zage r t es tified that the [Petit ioner’s] initial denial of g uilt was consistent with his determination that the [Petit ioner] suffer ed fr om substance a buse. She state d th a t sh e fo un d th e [Pet iti on e r] t o b e re mor se fu l a bo ut h is c on du c t.-6- Dr . Z a g e r’ s p syc ho log ic a l e va luatio n r e po rt sh ow s th a t th e [Pet iti on e r’ s] fathe r w a s an a lc oh oli c and that hi s b ro the r a

nd sis te r h ave se ri ou s su

bs tanc e a bu se problems. I t refle cts that his pare n t ’s d i v o rc ed at an e arly ag e and that the [P etitioner’s] stepfather

was ve rbally

abusive to the [Petiti oner]. The re port states that the [P etitioner], a high sc hool g raduate, bega n drinking and smoking marijuana

a t a g e e ig hte e n a

nd be g an u sin g c oc a ine in 1 99 1. I t s ho ws tha t th e [Pet iti on e r’ s] substance a

buse bec ame c ritical in 1992 when he lost his car and his job. The re port ref lects that the [Petiti oner] stopped using drug s and alcohol for a period of time but beg an abusing alcohol, marijuana and cocaine approxim ately three wee ks befor e the

o ffe nse occ urre d. The re sults of the repor t are that althoug h the [P etitioner] has

ma int a ine d a re lativ e ly

sta ble wo rk his tor y , h e e ng a g e s in

be havio rs that w ou ld

war rant a diag nosis of a conduct disorder or a ntisocial persona lity

disorder. It states that the [P etitioner] functions in t h e low aver ag e ra ng e of intellig ence . The re port shows that Dr. Z ag er’ s findings w ere that the [ Petitioner] was competent to stand trial and that althoug h the [P etitioner’s] ability to conform his beha

vior to the require ments of the law w as compromised be cause of his substance ab use, the [P etitioner’s] ability

to appre ciate the wrong fulness of his beha vior was not signif ic antl y imp a ir e d. I n Dr . Z a g e r’ s opin ion , the [Pet iti on e r] wa s san e a t the tim e of the off ense.

Ric ha rd Cla rk , a fr ie nd of

the [Pet iti on e r], te sti fi e d th a t th e [Pet iti on e r] c ame by his house at appr ox imately 1:30 a.m. on November 27, 1993. He sa id that the [P etitioner] was “hig h” fr o m s mo k ing c rac k coca ine, “kind of ne rvous,” a nd “jittery .” Mr. Clark st ated that the [ Petitioner] had som e crac k coca ine wit h him and that the [Pet iti on e r] s mok e d w hil e he wa s w ithhim

.
I d. at *1-5. This Court aff irmed the Petitioner’s c onvictions and sentenc es on direc t a ppeal. See id.

The Petitioner later

soug ht post-conviction relief on the base s that his co n fession wa s involuntary

and that trial c ounsel rende red ine ffe ctive assistanc e. See Tim othy Roberson v. State, No. W2001-00549-CCA -R 3 -P C , 2002 WL 1592725 (Tenn. Crim. App., Jackson, J uly 12, 2002). Th e po st- c onvic tio n co ur

t de nie d r e lie f, and

thi s Co ur t a ff ir me d. Se e id. Th e Pe tit ion e r’ s unti me ly application for permission to a ppeal was dismiss ed, and our Supre me Court denied the Petitioner’ s mot ion to r e he ar t

hat di smi ssa l.

The c urre nt action was initiated on Nove mber 4, 2002, when the Petitioner’s pro se “ Motion for Relief of Judgement [sic] fr om O rder Deny ing Petition for Post[-] Conviction Relief” wa s filed. In th e mot ion , th e Peti tione r a rgue d: ( 1) that hi s “ c on vic tio ns and se nte nc e s w e re ob ta ine d in violation of his right a g ainst self-incr imination and [ d ] u e [p] roce ss” bec ause his conf ession was involuntarily

g iven; (2) that his “c onvict i ons and sentenc es ar e void and violated the Six th and Four teenth Amendme nt to due proce ss [ sic] in t hat t hey wer e obtained thr oug h the State withholding exculpatory evidenc e”; (3) that his convictions and sentenc es we re obta ined in violation of his right to b e fr e e fr om u

nr e a so na ble se arc h a

nd se izur e s b e c a

us e of fi c e rs ha d no wa

rr ant o r p ro ba

ble c a us e-7-

to arre st the Petiti oner; a

nd (4) that “ [t ]he denial of counse l at the pre liminary stag es wa s prejudicial in that the [g]rand [j] ury

was e x posed to evidence that cle arly was inadmissible.” The Petitioner

so ug ht r e lie f i n th e fo rm

of se tti nga sid e the ve rd ic ts o f guil t or in t he a lte rn a tiv e fo r a

ne w tri a l.

There after, on May

22, 2003, the Petitioner moved to amend his “or igina l motion” stating that he wa s petitioning t o reope n his orig inal post-conviction case. He alleg ed two g rounds for r elief. F ir st, c iti ng the pe rc e ive d d e fi c ie nc ie s o f h is v ari ou s c ouns e l, h e a lle g e d th a t hi s c on sti tut ion a l r ig hts to d ue pr oc e ss a

nd e qu a l pr ote c tio n w e re vio late d “ in t hat he [ was ] de nie d th e g ua ra nte e d r ig ht t o a full and f

air he aringof his post-conviction petition.” Sec o nd, noting post-c onviction counsel’s failure to timely

file an a pplication for pe rmission t o appea l from this Court’s post-conviction opinion, he submitt ed that his constitutional rights to due process and equal prote ction wer e violated “in that he [was] denied the opportunity to appea l his p ost-conviction claims to the Tenne ssee Supreme Court be cause measure s wer e frustrated beca use of malpr actice of his attorney .” Ag ain, he sought to have the verdic ts set aside and alternatively be gra nted a new trial. In Aug ust of 2004, counsel wa s appointed to repr esent the Petitioner.

T h i s ap p ea l als o involves the denial of the Petitioner’s motion for a blood sample a nd medical r ecor ds. Following the appointment of c ounsel, the Petitioner filed a motion, on Dece mber 17, 2004, reque sting the c ourt to order that his blood be drawn for a determination of hi s blood ty pe and for the Depa

rtment of Correc tion to provide all of the Petitioner’s medic al re cords to him. The Petitioner relied on the f

ollowing f

acts in support of this motion: that “samples of blood we re taken at the sce ne of the crime f or wh i ch [ h e] was c onvicted, [that] blood samples wer e take n from the victim, and that a towel containingblood samples was introduce d at trial as e vidence .” Ac cording to the Petitioner, his blood ty pe was “at issue” beca

use this information “mig ht eliminate [hi m] as the per petrator of the c rime.”

The S tate responded to the P etitioner’s mot ion for a blood sample, stating, “ Although, it does not expressly

requ es t a DNA analy sis, on its fac e, this [m ]ot ion appea rs to be a pe tition for compar iso n analy sis which would fall under Tenne ssee’ s Post-Convi ction DNA Ana ly sis Act of 2001 . . . . The State is not awa re of any other ba sis in law for g rantingthe re lief soug ht.” Citing to Tennesse e Code Annotated sec tions 40-30- 304 and -305, the State argued that the Petitioner ha d failed to meet t h e “r easona ble proba bility ” standa

rds of those se ctions—“that he w ould not have be e n pro se c ute d or co nv ic te d if DN A a na ly sis pr ov ide d e xcu lpator y re su lts ” or

“ that D NAre su lts

wo uld have re su lte d in

a mor e fa vo ra ble ve rd ic t or se nte nc e .” In fu rt he r su pp or t of thi s a rgume nt, the State qu ote d thi s Court ’s ana ly sis in t he Pe tit ion e r’ s p os t- c onvic tio n a pp e a l: “ [T]he pr oo f a g a ins t [t he Petitioner] was substantia l and damning .” Roberson, 2002 WL1592725, at *10. As to the

se c on d p ro ngof

DN A a naly si s und e r s e c tio ns -3 04 and -3 05 —th a t th e e vid e nc e mus t st ill be in exis tence , the State contende d that the petition also failed be cause no “items of phy sical evide nce

. . . with blood on them” we re c apable of beinglocated, a nd the State attac hed af

fidavits of var ious state off icials to that eff

ect.

Also included in this appea l for our revie w i s the P etitioner’s request for coram nobis relief. Followingthe State’s re sponse to the Petitioner’s motions, the Petitioner filed a pr o se petition forI t i s ap p arent f rom t he reco rd t hat , a t so m e p o i nt p ri o r t o the A p ri l 5 heari ng, t he p art i es app eared i n co urt 2
and t hat t he co ram nob i s co urt w as “contemp l at i ng a l l o wi ng, if p o ss i b l e, so m e D N A tes t i ng o n the t o wel

. . . . ” T here i s n o t r an s cr i pt of

t h i s pr oce edi n g i n t h e r ec or d.

-8- a wr it of err or cora

m nobis on J une 8, 2005. The Petitioner alleg ed that newly discovere d evidenc e exis ted that would prove his innoc ence and would have resulted in a dif fer ent outcome at trial. He noted that the proof

at trial wa s that he wiped his hands on a towel (introduce d into evidence as an exhibi t) afte r repe atedly stabbing the victim. The blood ty pe on the towel was inc onsistent with the blood ty pe of the victim, a

nd the jury was not inf

ormed of this fac t. Moreover , no “ser ology” wa s pe rf or me d o n th e kn ive s r e mov e d f ro m th e vic tim ’s ho me . A c c or din g to t he Pe tit ion e r, he be c ame
awa re of this information “afte r t he denial of post[-] conviction re lief in the trial and a ppellate c ourt

. . . .” The P etitioner arg ued that, in light of the serolog y repor t which he ha d rec ently

discovere d, he “c ould have shown unto the jury that he wa s innocent, bec ause the [vi ctim’s] blood [was] not on the towel althoug h Offic er J err y Morris testified that [the P] etitioner wiped the [vi ctim’s] bl ood on the towel af

ter stabbingthe [ victim] a tot al of (25) times.” Ag ain, the Petitioner re quested that the

c ourt se t a sid e his c onvic tio ns or in t he a lte rn a tiv e g ra

nt h im a ne w tri a l.

A hea ringon the P etitioner’s mot ions was held on April 5, 2006. The Petitioner’s c ounsel first ac knowledg ed that the State had diligently attempted to f ind the towel introduce d at trial but was

un a ble to d o s o. Couns e l c on tin ue d, arguin g that ty

pin g of the Pe tit ion e r’ s b loo d w a s n e c e ssa ry so 2 that he could determine if the bl ood on the t owel belonge d to him, as t he ser ology repor t showed that the blood did not belong to the vic tim. I f the blood did not belong to either the Petitioner or the victim, it would l ea d “t o t he ar g ument . . . for tria l purposes that there [m ight] have be en anothe r person ther e.” Mor eover , it would then have be en “c ritical” f or trial counse l to “keep the confe ssion out” bec ause tria l counsel, under the proof as it exis ted at trial, chose not to suppress the confession as i t was relevant to “may

be a lesser level of hom icide.” Counsel did not ar gue the motion to reope n the post-conviction petition, stating that he was f ocusing on the one “ most relevant . . . .”

Th e State re sp on de d th a t th e Pe tit ion e r w a s “ tr yingto r e lit ig a te the amou nt of pr oo f a g a ins t him, which . . . [were] issues that have previously been deter mined or should ha

ve bee n as par

t of [t he Petitioner’s] direct a

ppeal.” The State noted that the Petitioner’s “de fense wasn’t that he didn’t do it, but what level of off ense he would be convicted of ” base d upon his drug use at the time of the

mur de r. F ina lly , th e State su bmi tte d th a t th e Pe tit ion e r d id n ot m e e t th e re qu ir e me nts of the Pos tConviction DNA Analy sis Act and stated that the Petitioner was only “try ing to take another

bite of the apple te n y ear s after

the fa ct” by

arguing a third party

might have been pr esent at the scene

.
At the conclusion of the hear ing, the cora m nobis court denied the Petitioner’s motion for a blo od sampl e

. Th e pa

rt ie s a djo ur

ne d and a g re e d to c on tin

ue the he ari ng on the pe tit ion fo r a writ of er ror c oram nobis.
A hearingw a s h e ld

o nth e r e qu e s t f

o r c o r am n o b is r e li e f

o nSe p te mb e r

2 8 , 2 0 0 6

. T he Petitioner review ed the various mot ions and petitions filed in this case and te stified conce rningthe defic iencies of

his various counsel. Acc ording to the Petitioner, his post-conviction counsel broug htT he ar gu ment port i on o f t he P et i t i oner ’ s b r i ef

f ocus es o n t he di s mi s s al o f hi s p et i t i on f

or a wri t o f

err or c oram 3

no b i s. T he Stat e o nl y argues t he m eri t s o f t he p et i t i o n f

o r coram nob i s rel i ef

on a p p e a l a n d d o e s no t argue t hat any ap p eal regardi ng t he o t her p l ead i ngs i s waived. T he P et i t i o ner’ s b ri ef d o es p res ent a s i ss ues t he d eni al of al l “ p end i ng

m o t i o ns and pe t i t i o n” and t he d eni al of hi s m o t i o n f o r a bl o o d s am p l e. W e wi l l ad d res s each p l ead i ng i n t urn.
-9- him “a stac k of papers” dur ing the proce ssing of his origina l post-conviction petition, and he “w ent thr ou g h p art

of it .

. . .” I t w a s th e n, fo r t he fi rs t ti me , th a t he saw the fo re ns ic and se ro logy re po rt s
on the knives and the towel re moved from the vic tim’s home. The Petitioner testified that he did not have a ny cuts or abr asions afte r murder ing the victim. He furthe r stated that the re ports and the “ar rest proc edure ” we re “ never litigated prior to trial.”

F oll ow ingfu

rt he r q ue sti on ingon

dir e c t e xami natio n, the Pe tit ion e r, in d ir e c t op po sit ion to his pr ior te sti mony , s tate d th a t he did not see th e reports un til a ft e r t he c on c lus ion

of his po stc onvic ti on he ari ng . A c c or din g to t he Pe tit ion e r, the do c ume nts we re imp or tant t o h is d e fe ns e beca use the ser ology

repor t showed that the blood on the towe l w as a differ ent blood ty pe than the

v i ct i m ’s b l o o d

. He fu rt h er n o t edth ats er o l o gy

an al y s i s wa s n o t p er fo rm edo nth e kn i v es ev en th o u gh “the knives ha d blood on the handles a nd the blade” and that his fing erpr ints were not f ound on the knives.

The Petitioner then provided extensive te stimony on the sever al statements he g ave to law enfor ceme nt officials a

nd the circ umstances surrounding those statements. The Petitioner sa id that th e S t at e h ad n o t p ro v i d ed o n e o f h i s s t at em en t s t o h i m d uri n g th e d i s co v ery p ro ce s s

— a “ o n e p age oral stateme nt that was take n from [him] at [hi s] job.” The Petitioner did not disput e that in another statement he confe ssed to the murder, wher ein he said he wipe d his hands on a towel a fter sta bbing the victim. Asked whether the issue of suppression of his state ments was addr essed in the Court of Criminal Appeals, the Petitioner answ ere d, “Ye s, but it wasn’t fully explored.”

After hear ing te stimony , the cor am nobis court rule d that the petition for cor am nobis relief was time-ba

rre d and that he ha d failed to state a cog nizable cl ai m fo r re lief. B y order dated De c e mbe r 4, 2 00 6, the c or am no bis c ourt de nie d a ll o f t

he Pe tit ion e r’ s mo tio ns pe rt a ini ngto p os tconviction re lief and dismissed his petition for coram nobis relief

. The P etitioner now appea ls from this order.

I. Motion to Re open Post -Conviction P etition 3 In its single orde r deny

ing r elief, the cora

m nobis court denied the Petitioner’s motions. The Petitioner filed a notice of appe al to challeng e this ruling , alongwith the dismiss al of his motion for a blood s am p l e an d h i s petition for a wr it of err or cor am nobis, six teen da y s after the orde r wa s enter ed. We m ake c lear

that the Petitioner’s motion “for r elief of judge ment [si c]” and his motion to a me nd thi s “ or ig ina l mo tio n” wi ll b e tr e a te d t ogeth er as a mot ion to r e op e n h is o ri g ina l po stconviction petition.

In s e e k i n g r e v i e w o f th e d e n i a l o f a m o t i o n t o r e o p e n , a p e t i t i o n e r s h a l l f i l e , w i th i nt e nd ays of t he lower court’s ruling, an application in t heCou rt o

f Cr im ina l A

pp e als se e kin g pe rm iss ion to-10-

appea l. See Tenn. Code A nn. § 40-30-117( c) (emphasis added); Tenn. S up. Ct. R. 28 § 10(b). The application shall

be acc ompanied by c opies o f a l l the docume nts fil ed by both parties in the trial court and the order deny ing the motion

. Te nn . Code Ann. § 4 0- 30 -1 17 (c ) ( e mph a sis a dd e d) ; se e a lso Tenn. Sup. Ct. R. 2 8 § 10(b). In the pre sent ca se, the Petitioner has f ailed to comply

with the statutory require ments for see king a ppellate r eview. Spec ifically , the not ice of appea l document was filed more tha

n ten day s after

the orde r wa s enter ed, and the P etitioner failed to file his application in the proper

court a nd attach the proper

documentation.

An a pp e a l a s o f r ig ht i s n ot a

va ila ble fo r r e vie w o f a lo wer c ourt ’s de nia l of a mot ion to

re op e n a petitio n f

or po st- c onvic tio n r e lie f. Se e Te nn . R. Ap p. P. 3 (b ); se e a lso John Ha ro ld Wil liams, J r. v. State, No. W1999-01731-CCA-R3-PC, 2000 W L303432, at *1 (Te nn. Crim. App., Jac ks on , M ar. 23 , 2 00 0) . A pet it io ner must c omp ly wi th t he statut or

y re qu ir e me nts c on ta ine d in section 40-30- 117(c) . See Willi ams, 2000 WL303432, at *1; Wil liam L ee D rumbarg er v. State, N o. M1999-01444-CCA-R3-PC, 1991 W L242933, at *1 (Te nn. Crim. App., N ashville, Dec . 7, 1999); Lucy Killebrewv. State, No. 03C01-9809-CR-00320, 1999 WL813471, at *2 (Te nn. Crim. App., Knoxvi lle, Oct. 5, 1999). The failure of a pe titioner to comply with statutory

require ments g overning revie w of a denial of a

motion to reopen depr ives this Court of jurisdiction t o enter tain such matter. Wil liams, 2000 WL 303432, at *1. Finally , neither the Post-Convi ction Procedur e Ac t nor the Rules of the Sup re me Court

pe rm it th is Court

to s us pe nd

the statut or

y re qu ir e me nts . I d. Th is C ourt is without jurisdiction t o enter tain this matter.
Notwithstanding, e ven had the appli ca t i o n v est ed this Court with jurisdi ction, the motion fails to asser

t a claim upon which a

motion to reopen a pe tition for p o s t -c o n v i ct i o n relief may be g rante d. Section 40-30-117, Te nnessee Code Annotated, g overns motions to reope n a post-conviction petition. See also Tenn. Sup. Ct. R. 28 § 2(c). A motion to re o pen a pr ior po st- c onvic tio n p e tit ion

may on ly be fi le d if

a pe tit ion e r a lle g e s o ne of

the fo llo wi ng :
(1 ) a final ruling of

an appe llate cour

t establishes a c onstitut ional rig ht that was not re cog nized as exi sting at the time of trial and retrospec tive application of the ri g ht i s r e qu ir e d;
(2 ) n e w s c ie nti fi c e vid e nc e e xists e sta bli sh ing that the pe tit ion e r is a c tua lly innocent of the convicted of fense (s); or
(3) the pe titioner’s sentenc e wa s enhanc ed base d up o n a prior convic tion which has subse quently

been f ound invalid.
Tenn. Code Ann. § 40- 30-117(a ).

The Petitioner does not alleg e g rounds that would allow him to reope n his previous petition fo r p os t- c onvic tio n r e lie f. Whil e the Pe tit ion e r a rgue s v ari ous re a so ns in h is m oti on s th a t hi s constitutional rights have been violate d, he has not a lleg ed a c onstitut ional rig ht t h at wa s not

rec og nized as exi sting at the time of trial and r equiringretrospe ctive applic at i on. Moreove r, as-11-

dis c us se d in mor e de ta il be low , the se ro logy re po rt re lie d on by the Pe tit ion e r is not n e w s c ie nti fi c evidenc e esta

blishing that the Petitioner is innocent of the c onvicted off enses. The Petitioner’s motion to reopen fa ils.

II. Motion for a Bl ood Sample The Petitioner also moved “ to obtain blood sample and medica l rec ords” r equesting pe rm iss ion

to t ake a sampl e of

his ow n bloo d to det e rm ine his blo od ty pe a nd a sk ingfo r a ll o f h is medical r ecor ds in possession of the Depa rtment of C o rr ec tion. The State responde d to the Petitioner’s motion as a re quest for D NA ana ly sis under the Post-Convi ction DNA Analy sis Act of 2001. See Te nn. Code Ann. §§ 40-30- 301 to -313.

Th e Pos t- Convic tio n D NA An a ly sis Ac t of

20 01 a llo ws a

pe tit ion e r c on vic te d o f c e rt a in crimes, includingfirst deg ree murder, to pe tition t he cour t at any time for DNAanaly sis of evidenc e in the possession or control of the State. See id. § -303. Pursuant to this Act, a person c onvicted of first deg ree murder

may at any time, file a petition r equesting the fore nsic DNA a naly sis of any

evidenc e th a t i s i n th e p o s s e s s i o n o r c o n tr o l o f th e p r o s e c u t i o n , l aw e n f

o r c e m e n t , l a

b o r a t o r y,
or cour t, and that is re lated to the investig ation or prose cution that resulted in the judgme nt of conviction and that may contain biolog ical evide nce.

I d.

The c o ra m nobis court did not specifica lly ref ere nce how

it was treating the Petitioner’ s motion for a blood sample despite much di scussion at t he April 5 hear ing r eg ardingthe form of the motion. At the conclusion of the hea ring , the cour

t denied the motion:

I ’m g oing to de ny

his moti on to have a

blood te st a

nd I don’t see where it can be of pr obative value . I t makes no diffe renc e what it shows beca use of the e vidence in this case.

. . . . Now, it’s obvious that after a dilige nt searc h the towel can’ t be found, but I ’m not convinced that with the weig ht of the evide nce a lrea d y t h at i t was eve n
m an d a t o r y.

Treated as a

petiti o n fo r post-convic tion DNA testing , the Petitioner failed to satisfy the qualifying c riteria unde r the Post-Conviction DNA Analy sis Act. Courts will order DNAtesting when:-12- (1) A r easona

ble prob ab ility

exis ts that the petitioner would not have be en prosec uted or c onvicted if e x culpatory res u l ts had bee n obtained throug h DNA

ana ly sis ;
(2) The evidenc e is still in exis tence and in suc h a condition t h at DNA analy sis may

be conduc ted;
(3) The evidenc e was never previously subjected to DNA a naly sis or was not subjected to the a

naly sis that is now requested which could resolve a n issue not resolved by

previous ana ly sis; and
(4) The application for

analy sis is m ad e fo r t he purpose of demonstrating innocenc e and not to unre asonably delay the execution of sentenc e or administration of justice.
Tenn. Code Ann. § 40- 30-3 0 4

. A d d it io n a ll y , T e nn e ssee Code A nnotated sec tion 40-30-305 provides

a s f oll ow s:

After

notice to the prose cution and an oppor tunity to respond, the court may

or de r D NAana ly sis if

it f ind s th a t:
(1) A r easona

ble proba bility exis ts that analy sis of t he evidence will produce DNA r esults which would have rende red the petitioner’s ve rdict or se ntence more favor able if the results had be en available at the proce edingleadingto the judgme nt of convic tion;
(2) The evidenc e is still i n exi s t en ce and in such a condition that DNA analy sis may

be conduc ted;
(3) The evidenc e was never previously subjected to DN A ana ly sis, or was not subjected to the analy sis that is now requested which could re solve an issue not resolved by

previous ana ly sis; and
(4) The ap p l ication for a naly sis is m ade f

or the purpose of demonstrating innocenc e and not to unre asonably delay the execution of sentenc e or administration of justice.

I d. § -305.
As the State noted in its response to the Petitioner’s motion for a blood sample, the Petitioner has fa iled to meet the “r easona ble proba bility ” standa

rds of sec tions -304 an d -3 0 5 , i.e., that the Pe tit ion e r w ou ld n ot hav e been pro secu tedor co nv ict ed i f DNA anal y si s p rov id ed ex cul pat ory res ult s or that DNAresults would have r esulted in a more favor able ve rdict or se ntence . Any ty ping of theW h ile th e P e tit io n e r p ro v id e d tes tim o n y a t t h e he a rin g tha t h e d id n o t re c e ive o n e o f h is sta te m e n ts g ive n to 4

p o lice un til a fter the p o st-co n v ic tio n h e a r in g , t h e P e tit io n e r d o e s n o t sp e c ifi c a lly c h a llen g e this issu e o n a p p e a l. N o net hel ess , we no t e t hat al l o f th e P et i t i o ner’ s st at em ent s were t ho roughly dis cuss ed at t ri al

. M o reove r, t hi s C o urt di s cu s s ed t h e s u ppr es s i on of t h es e s t at eme n t s an d an y i n ef f ec t i v en es s r el at ed t h er et o i n t h e Pet i t i on er ’ s pos t

- con v i ct i on

a p p e a l. S e e R o b e rs o n , 2 0 0 2 W L 1 5 9 2 7 2 5

. -13- Petitioner’s blood would not have produc ed exculpatory results or proved his innocence , and “the proof a g ainst [t he Petitioner] was substantial and damning .” Roberson, 2002 WL1592725, at *10.

We also a g r e e th a t th e p e ti ti o n f a il s un d e r th e s e c o n d p r o n g o f D N A an a ly s is b e c a u se no

“ ite ms o f p hy sic a l e vid e nc e

. . . w ithblo od on the m” we re ca

pa ble of be ingloc a te d. Th e State provided numer ous aff

id av i t s to this effec t. As a petition for DN A testing , the cor am nobis court

corr ectly denied the Petitioner’ s reque st.

When viewed simpl y as motion for the Petitioner’s blood sample, no a ppeal lies a s of rig ht

un de r T e nn e sse e Rul e of Ap pe llate Pr oc e dure 3( b) . N otw ith sta nd ing , h is r e qu e st f

or ty pin g of his blood is simply an effort to re litigate issues of guilt or innocence and trial strateg y . Contrary to the

asser tions of the Petitioner , t h e d et ermination of his bl ood ty pe will not eliminate him as the perpe trator of

these c rimes.

We also note that the Petitioner has not made alleg ations that woul d al l ow us to treat the appea l as a wr it of cer

tiorari. The Petitioner has not a lleg ed that the c oram nobis cour t has exceede d its jurisd ic tio n o r a c te d il le g a lly or arb itr ari ly . See Te nn .Co de Ann. § 27- 8- 10 1. “ Ge ne ra lly , th e wr it of c e rt ior ari is l imi te d in a

pp lic a tio n and

may no t or din ari ly

be us e d ‘ to i nq

uir e int o th e c or

re c tne ss of a judgment iss ued by a court with jurisdiction.’” Moody v. State, 160 S.W .3d 512, 515 (Tenn. Crim. App. 2005) (quoting State v. Adler, 92 S.W.3d 397, 401 (Tenn. 2002)) . Th e m otion was proper ly denied.

III . W r itof Er r orCo r am No bis On appe al, the Petitioner ar g ues that he is entitled to c oram nobis re lief bec ause he was not

awa re of the inf

or matio n in the se ro logy re po rt un til a ft e r his po st- c on vic tio n h e ari ngand that th is information would have been he lpful in suppressing his confessions at t ri al

. Specifica lly , he 4

su bmi ts t hat “ [h]a d [he ] ha d th is i nf or matio n it c ou ld h ave be e n u se d at tr ia l to c re a te re a so na ble doubt as to” his g uilt.

A writ of error coram nobis is available to a petiti oner in a cr iminal prosecution. Tenne ssee Cod e Anno tate d s e c tio n 4 0- 26 -1 05 pr ov ide s, in p e rt ine nt p art :

The relief obtainable by this proc eeding shall be confine d to error s dehors the r ecor d and to matters that we re not or c ould not have bee n litigated on the trial of the c ase, on a motion for a ne w trial, on appe al in the nature of a writ of er ror, on wr it of err or, or in a ha

beas c orpus proceeding . Upon a showingby the def endant that the defe ndant was without fault i n failingto present c erta in evidence at the prope r time,

a wr it of err or cor am nobis will li e for subsequently

or newly discovere d evidenc e-14-

relating to matter s which we re lit iga ted at the t rial i f t he judge determines that such

e vid e nc e may have re su lte d in a dif fe re nt j ud g me nt, ha d it

be e n p re se nte d at th e tr ia l. The issue shall be tr ied by the cour t without the intervention of a j u ry , an dif the decision be in favor of the petitioner, the judgme nt c omplained of shall be set aside and the de fenda

nt shall be g rante d a new

trial in that cause

. Tenn. Code Ann. § 40- 26-105.

A writ of e rror

cora m nobis is an “extraordinary proce d ural re medy ,” filling only a “slig ht g ap int o w h ic h f

e w c a s e s f

a ll

. ” St a te v

. M ixo n , 9 8 3 S. W. 2 d 6 6 1 , 6 7 2 ( T e n n

. 1 9 9 9 ) (citation omitted). “The pur

pose of this reme dy

is to bring to the attention of the court some f act unknown to the court whic h if known would have resulted in a diff ere nt judgment.” Fr eshwater v. State, 160 S.W. 3d 54 8, 55 3 ( Te nn . Cr im. Ap p. 20 04 ) (q uo tin g State v. Ha

rt , 91 1 S.W. 2d 37 1, 37 4 ( Te nn . Cr im. App. 1995)). T he dec ision to gra nt or deny a petition for wr it of err or cor am nobi s rests within the sound discretion of the tr ial court. Te nn. Code Ann. § 40-26- 105; Hart, 911 S.W.2d at 375.

To establish that he is e ntitled to a new trial, the Petitioner must show the following: ( a) the g ro un ds and

the natur e of

the ne wl y

dis c ov e re d e vid e nc e ; ( b) why the a dmiss ibi lity

of the ne wl y discovere d evidenc e may

have r esulted in a differe nt judgme nt if the evidence had been a dmitted at the previous trial; (c) that the Petitioner was without fa ult in failing to pre sent the new ly discovere d evidenc e at the a

ppropriate time; and (d) the r elief soug ht. Fre shwater , 160 S.W .3d at 553; Har t, 911 S.W .2d at 374-75.

The g rounds for se ekinga petition for wr it of err o r cora m nobis are not limit ed to s p e c if

ic c a te g o r ie s , a s ar e th e g r o un d s f o r r e o p e n in g a

p o s t- c o n v ic ti on petition. Coram nobi s cl aims may be base d upon any

“new ly discovere d evidenc e relating to matters litigated at the trial” so long a s the petitioner also e stablishes that the petitioner wa s “without fault” in failing to present the e vidence at the prope r time.

Har ris v. State, 102 S.W .3d 587, 592-93 (Te nn. 2003).

Th e statut e of

lim itatio ns fo r s e e kin g a

wr it o f e rr or

c or am no bis is o ne y e ar fr om t he date the judg ment become s final in the trial cour t. Tenn. Code Ann. §§ 27-7-103, 40-26-105; Mix on, 983 S.W .2d at 671 (Te nn. 1999). The one-year statute of limitations m ay be tolled only

when ne cessa

ry
so as not to offend due proce ss require ments. See Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001). The State be ars the bur den of r aising the bar of the statute of l i m i t at i ons as an a ffirmative defe nse. See H arr is, 102 S.W .3d at 593.

Ba sed on the re cord, it is clea r that the pe tition was filed sever al y ear s after t h e s t at ute of lim itatio ns ha d e xpir e d. Ho we ve r, the c ourt in thi s c a se did

no t summa

ri ly dis mis s th e c or am no bis petition but held an evidentiar y hear ing at which the Petitioner wa s prese nt and gave testimony . At the inception of the hear ing on Septe mber 28, the a ssistant dist rict attorne y g ener al noted that “the writ was f iled outside the s tatute of limit ations.” The P etitioner then g ave te stimony in support ofT h e P e tit io n e r’s m o tio n to a m e n d his “o rig ina l m o tio n ” ra ise s issu e s re g a rd ing p o st -c o n v ic tio n c o u n se l’s 5
f ai l ur e t o f

i l e an app l i cat i on f

or per mi s s i on t o app eal t o t he T enn es s ee Supre me C our t

. O ur s upr eme cour t conc l uded i n St ok es v

. St at e, 146 S. W

. 3d 56, 60- 61 ( T en n

. 2004) , t h at t h e d ue p roce ss c o nt empl at ed i n W i l l i ams v

. St at e, 44 S. W

. 3d 464 ( T enn

. 200 1), does not appl y t o po s t

- convi ct i on procee di ng s

. T he P et i t i oner had f ai l ed t o dem ons t r at e t hat d ue p ro ce ss req uired t o l l i ng o f t he st atute o f

l i m i t ati o ns.
-15- his petition for cora

m nobis relief. At the c onclusion of t he hearing , the S tate aga in objected to the pe tit ion a s unti me ly : “ [Te nn e sse e Cod e Anno tate d sec tio n] 27- 7- 10 3 g ive s u s th e on e [-]y e ar s tatut e of limit ations for Writ of Error Coram Nobis and that statute say s the writ must be filed within one y ear afte r the judg ment in the case become s final.”

The Petitioner w as g iven fa ir notice of the statute of limitations defense a nd had an op po rt un ity to r e but it . Se e Sand s v . St a te , 9 03 S.W. 2d 29 7, 29 9 ( Te nn . 1 99 5) . T he c or am no bis court rule d that “[t] h e s t at u t e o f limitations has long since r un in these ca ses.” Dismissal of the petition would have bee n war rante d on this basis alone.

The P etitioner, citi ng Fr eshwater, 160 S.W.3d 548, and Workman, 41 S.W .3d 100, alleg es that du e pr oc e ss r e qu ir e s to lli ngof the on e -y ear stat

ute of lim itatio ns be c a

us e he did

no t be c ome “aw are ” of the serolog y

repor t until “ex hausting . . . his post-c onviction pr ocedur e.” Said a nother way , the Petitioner is alleg ing ne wly discovere d evidenc e in the conte x t of a Bra dy v. Maryland, 373 U. S. 8 3 ( 19 63 ), vio latio n, i.e ., that th e State wi thh e ld t he re po rt and that th e re fo re du e pr oc e ss
re qu ir e s to lli ngof

sta tut e of lim itatio ns

. 5

Th e Pe tit ion e r’ s o wn

te sti mony

a t th e Se pte mbe r 2 8 h e ari ng , w hil e c on tr a dic tor y a t ti me s, indicates that his attorney s wer e in posse ssion of the fore nsic and serolog y repor ts at the time of trial

and that the Pe tit ion e r him se lf wa s in poss e ssi on of the m at his p os t- c on vic tio n h e ari ng . Re g ard le ss of whe ther the Petitioner ha d seen the actua l r eports, the Petitioner’s tria l counsel we re a war e of the information containe d in the fore nsic and ser ology repor ts. The Petitioner has f

ailed to alleg e any g round for

which the statute of

limit ations should be tolled. See Mix on, 983 S.W .2d at 668.

Moreove r, the Petitioner has not stated a cog nizable claim for c oram nobis r elief be cause the Pe tit ion e r w a s pre vio us ly awa re of the inf or matio n in the se ro logy

re po rt . T he e vid e nc e is n ot n e wl y dis c ov e re d e vid e nc e . “ Th e [co ra m no bis ] pr oc e e din g is c on fi ne d to e rr or s o uts ide the re c or d a nd to

matte rs wh ic h w e re no t and c ou ld n ot h ave be e n li tig a te d at tri a l, t he mot ion

fo r n e w tri a l, a

pp e a l,

or upon post-conviction petition.” B ruce Alan L ittleton v. S tate, No. M2006-01675- CCA-R3-CO, 2007 WL 845900, at *3 (Tenn. Crim. App., Nashville, Mar. 14, 2007), perm. to ap p ea l d en ied, (Tenn. Aug

. 13, 2007); Kenne th C. Stomm v. State, No. 03C 01-9110-CR-00342, 1992 W L97081, at *1 (Te nn. Crim. App., K nox ville, May

12, 1992); see a lso Tenn. Code Ann. § 40-26- 105. The Petitioner has fa iled to raise a cognizable claim for coram nobis relief beca use t he is sue could have been litig ated pr eviously

and bec ause he was not wi t h out fault in failing to raise the blood ty pe discrepa ncy at the appr opriate time. Additionally , the evidenc e soug ht by the Petitioner would not establish his innocence

.-16- CO NC LU SION For t h e re as ons stated her ein, the Petitioner’s fa ilure to proper ly perf ect a n application for permission to appea l his mot ion to reope n his pr ior post-conviction petition divested this Court of jurisdiction to consider the appea l of that issue. We further conclude that the habe as cor pus court did not err in deny

ing the Petitioner’s reque st to ty pe a sa mple of h i s blood or in determining that the petition for cor am nobis relief was time-ba

rre d. The judg ment is affirme d.

______________________________ DAVI D H. WEL L ES, J UDGE