        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                        Assigned on Briefs February 23, 2010

              DANIEL LEE DRAPER v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Sullivan County
                        No. S45,106    R. Jerry Beck, Judge




              No. E2009-00952-CCA-R3-PC - Filed December 21, 2010


The petitioner, Daniel Lee Draper, appeals the Sullivan County Criminal Court’s denial of
his petition for writ of error coram nobis, arguing that the court should have appointed
counsel and afforded him an evidentiary hearing. Upon review of the record and the parties’
briefs, we affirm the judgment of the coram nobis court.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,
J R., J., joined. J OSEPH M. T IPTON, P.J., filed a concurring opinion.

Daniel Lee Draper, Whiteville, Tennessee, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; and H. Greeley Wells, Jr., District Attorney General, for the appellee, State of
Tennessee.

                                        OPINION

                                 I. Factual Background

        We glean the following facts from the record before us and this court’s opinion on
appeal from the denial of post-conviction relief: In 2001, the petitioner was charged by
presentment in the Sullivan County Criminal Court with first degree premeditated murder,
first degree felony murder committed during the perpetration of aggravated child abuse, and
aggravated child abuse against the victim, his infant daughter. The State filed a notice of
intent to seek the death penalty. At some point during the investigation into the victim’s
death, the petitioner had given a confession to the police. During a pretrial suppression
hearing, the trial court ruled that the petitioner’s confession was voluntary and denied his
motion to suppress it. On September 26, 2002, the petitioner pled guilty to first degree
felony murder and aggravated child abuse, and the trial court sentenced him to concurrent
sentences of life and twenty-five years, respectively. Daniel Lee Draper v. State, No.
E2007-01485-CCA-R3-PC, 2008 Tenn. Crim. App. LEXIS 943, at *1 (Knoxville, Dec. 5,
2008), perm. to appeal denied, (Tenn. May 4, 2009).

        The petitioner filed a petition for post-conviction relief but voluntarily dismissed the
petition on September 8, 2005, when the trial court denied his motion to disqualify the
district attorney’s office. Id. at **1-2. He then filed a motion to reopen the petition on
August 22, 2006, but the trial court denied the motion. Id. at *2. This court denied the
petitioner’s application to appeal the trial court’s denial of the motion to reopen. Id. (citing
State v. Daniel L. Draper, No. E2006-02167-CCA-R28-PC, Sullivan County (Tenn. Crim.
App. Jan. 25, 2007) (order)). On May 14, 2007, the petitioner filed a petition for post-
conviction relief, alleging

              that he was entitled to relief because (1) the association between
              agents of the State and a member of the victim’s family led to
              “biased mishandling” of the case to the petitioner’s detriment,
              including coercion of an involuntary confession from the
              petitioner, (2) trial counsel had a conflict of interest with the
              petitioner because a member of the district attorney general’s
              staff was a former employee of trial counsel, and (3) he entered
              an unknowing and involuntary guilty plea after the State failed
              to disclose exculpatory evidence. The petitioner alleged that his
              claims were based upon newly discovered evidence which he
              said consisted of information from (1) depositions of members
              of the victim’s family that were taken in another action in May
              and June 2006, which detailed the extent of the involvement of
              the defendant’s former father-in-law, who was the victim’s
              grandfather, . . . in the investigation and association with a
              member of the district attorney general’s staff and a police
              investigator, and (2) the September 2005 investigation of the
              medical evidence by his previous post-conviction counsel, the
              import of which was that the medical examiner who conducted
              the victim’s autopsy gave conflicting opinions regarding the
              victim’s injuries and death and the significance of which the
              petitioner claimed he did not understand until he received a
              February 9, 2006 letter from his former counsel. The petitioner
              also alleged that his request for dismissal of his original

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                post-conviction claim was based upon his belief that he did not
                have sufficient evidence to prove his claims. He alleged that his
                claims were not previously determined because he never had a
                full and fair hearing on the merits, either in the proceedings on
                the first petition or in his unsuccessful attempt to reopen those
                proceedings.

Id. at **2-4.

        The post-conviction court dismissed the petition without appointing counsel or
conducting an evidentiary hearing, determining that the petition was barred by the one-year
statute of limitations and that the petitioner’s claims had been determined previously on the
merits by this court’s order dismissing the motion to reopen. Id. at *4. On appeal, this court
affirmed the post-conviction court’s dismissal of the petition. Id. at *11. Specifically, this
court concluded that the petitioner had one year from the date his judgments of conviction
became final, October 26, 2002, to file his petition for post-conviction relief. Id. at **6-7.
The petition, which was filed more than three years after that date was, therefore, time-
barred, and due process did not toll the statute of limitations. Id. at *7. This court noted that
although the petitioner raised claims of newly discovered evidence, the “typical framework”
for such claims was through a writ of error coram nobis and that it was inappropriate to
consider such claims in the post-conviction petition. Id. at **8-9.

        The petitioner filed a petition for writ of error coram nobis on February 3, 2009,
essentially alleging the same claims of new evidence that he had raised in the post-conviction
petition. The State argued in a written motion to dismiss that the petition was time-barred
by Tennessee Code Annotated section 27-7-103, which provides that a writ of error coram
nobis must be filed within one year after the judgments of conviction become final. The
State also argued that the evidence described in the petition was not newly discovered and
that the petitioner raised the same issues in his previous post-conviction petitions. The error
coram nobis court dismissed the petition without appointing counsel or conducting an
evidentiary hearing, holding that the petitioner was attempting to reopen the motion to
suppress his confession, that the evidence described in the petition was not new, that the
ineffectiveness of his trial counsel was not a proper ground for relief, and that he raised
similar issues in his petition for post-conviction relief. The court also held that the petition
was barred by the statute of limitations. The petitioner appeals, claiming that the coram
nobis court should have at least appointed counsel and conducted an evidentiary hearing.

                                         II. Analysis

                                   A. Statute of Limitations

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        The State maintains that the coram nobis court properly dismissed the petition because
the petitioner filed it more than one year after the judgments of conviction became final. We
note that the State properly preserved this issue by arguing in its motion to dismiss the
petition that the petitioner filed it well-outside the one-year statute of limitations. See Harris
v. State, 102 S.W.3d 587, 593 (Tenn. 2003) (stating that “the State bears the burden of
raising the bar of the statute of limitations as an affirmative defense”). The petitioner argues
for the first time on appeal that Tennessee Code Annotated section 27-7-103 has been
“repealed” by Tennessee Rule of Civil Procedure 60.02. Issues raised for the first time on
appeal are typically waived. State v. Adkisson, 899 S.W.2d 626, 635 (Tenn. Crim. App.
1994). However, we will briefly address the petitioner’s argument.

       Tennessee Code Annotated section 40-26-105(a) makes available to convicted felons
“a proceeding in the nature of a writ of error coram nobis, to be governed by the same rules
and procedure applicable to the writ of error coram nobis in civil cases.” Tennessee Code
Annotated section 27-7-101 provides for writ of error coram nobis in civil cases while
Tennessee Rule of Civil Procedure 60.02 states that writs of error coram nobis are
“abolished” in civil cases. However, as our supreme court has explained,

               Though the writ of error coram nobis in civil cases was
               superseded when Rule 60 of the Tennessee Rules of Civil
               Procedure became effective in 1971, the adoption of Rule 60 did
               not diminish or supersede the statute which extended the writ as
               an available remedy in criminal proceedings. . . . The
               anomalous result is that the writ of error coram nobis continues
               to be an available remedy in criminal actions, but the procedure
               governing the remedy is based upon the civil writ of error coram
               nobis which has been abolished for almost 28 years.

State v. Mixon, 983 S.W.2d 661, 668 (Tenn. 1999) (footnotes omitted). Therefore, coram
nobis claims in criminal cases remain subject to the one-year statute of limitations.

       Although the petition was filed outside the one-year statute of limitations, due process
can require tolling the statute. Workman v. State, 41 S.W.3d 100, 101 (Tenn. 2001). As
explained in Workman, a court must weigh the petitioner’s interest in obtaining a hearing to
present a later-arising ground for relief against the State’s interest in preventing stale and
groundless claims. Id. at 103. Courts should use the following three-step process to balance
these interests:

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

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              (2) determine whether the grounds for relief actually arose after
              the limitations period would normally have commenced; and

              (3) if the grounds are “later-arising,” determine if, under the
              facts of the case, a strict application of the limitations period
              would effectively deny the petitioner a reasonable opportunity
              to present the claim.

Harris v. State, 301 S.W.3d 141, 145 (Tenn. 2010) (quoting Sands v. State, 903 S.W.2d 297,
301 (Tenn. 1995)).

       The statute of limitations in this case normally would have begun to run on October
26, 2002, thirty days after the judgments of conviction became final. Therefore, the statute
of limitations would have expired on October 26, 2003, more than five years before the
petitioner filed his petition for writ of error coram nobis.

        Next, we must determine whether the petitioner’s grounds for relief arose after the
limitations period normally would have commenced. In his petition, the petitioner cites as
“new evidence” information contained in the Department of Children’s Services’ Service
Activity Report, the Sullivan County Sheriff Department’s investigative report, a two-page
statement given by the victim’s mother in 2001, and a 2002 letter from District Attorney
General H. Greeley Wells to the petitioner’s trial attorney. However, the petitioner
acknowledges that his defense counsel received those documents prior to his guilty plea.
“[T]he fact that the documents had indeed been disclosed to the defense prior to the
petitioner’s guilty plea establishes that the documents are not newly discovered evidence.”
Arthur W. Stamey, III v. State, No. E2009-00996-CCA-R3-CD, 2010 Tenn. Crim. App.
LEXIS 119, at *16 (Knoxville, Feb. 11, 2010). The petitioner’s remaining items of “new
evidence” include depositions given by various witnesses in the civil case in 2003, 2006, and
2007, and a letter written by the petitioner’s post-conviction attorney to the petitioner in
2006. Most of those documents were not available to the petitioner until after the one-year
statute of limitations had expired.

        Finally, we must determine if, under the facts of this case, a strict application of the
limitations period would effectively deny the petitioner a reasonable opportunity to present
his claims. According to the petitioner, he received some of the depositions from the civil
case in July 2006 and the letter from his post-conviction attorney in February 2006. He filed
a petition for post-conviction relief on May 14, 2007, ten months after he received the
depositions and fifteen months after he received the letter. It is evident from this court’s
opinion on appeal from the denial of post-conviction relief that the petitioner raised new

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evidence claims, including claims about information in the depositions and the letter, in his
post-conviction petition. This court noted in its opinion that the proper avenue for relief
regarding claims of new evidence was a writ of error coram nobis, not a petition for post-
conviction relief. This court affirmed the denial of post-conviction relief on December 5,
2008, and the petitioner filed his petition for error coram nobis shortly thereafter on February
3, 2009. The delay was not unreasonable, and due process tolled the statute of limitations
in this case.

                                      B. New Evidence

       The petitioner argues that the coram nobis court erred by denying his petition on the
merits but that in any event, he was entitled to the appointment of counsel and an evidentiary
hearing. The State contends that the court properly dismissed the petition because the
evidence at issue was not newly discovered. We conclude that the court properly dismissed
the petition.

        The writ of error coram nobis is a post-conviction mechanism that has a long history
in the common law and the State of Tennessee. See, e.g., State v. Vasques, 221 S.W.3d 514,
524-26 (Tenn. 2007). It is now codified in Tennessee Code Annotated section 40-26-105.
The writ “is an extraordinary procedural remedy . . . [that] fills only a slight gap into which
few cases fall.” State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999). By its terms, the statute
is “confined” to cases in which errors exist outside the record and to matters that were not
previously litigated. Tenn. Code Ann. § 40-26-105(b). Where the case involves a matter that
has been previously litigated, the writ will not lie unless the petitioner demonstrates that he
was without fault in failing to present the evidence and that the evidence “may have resulted
in a different judgment.” Id.

       Our supreme court outlined the procedure that a trial court considering a petition for
a writ of error coram nobis is to follow:

              [T]he trial judge must first consider the newly discovered
              evidence and be “reasonably well satisfied” with its veracity. If
              the defendant is “without fault” in the sense that the exercise of
              reasonable diligence would not have led to a timely discovery of
              the new information, the trial judge must then consider both the
              evidence at trial and that offered at the coram nobis proceeding
              in order to determine whether the new evidence may have led to
              a different result.




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Vasques, 221 S.W.3d at 527. In determining whether the new information may have led to
a different result, the question before the court is “‘whether a reasonable basis exists for
concluding that had the evidence been presented at trial, the result of the proceeding might
have been different.’”             Id. (quoting State v. Roberto Vasques, No.
M2004-00166-CCA-R3-CD, 2005 Tenn. Crim. App. LEXIS 1100, at **36-37 (Nashville,
Oct. 7, 2005)). However, there are limits to the types of evidence that may warrant the
issuance of a writ of error coram nobis. See, e.g., State v. Hart, 911 S.W.2d 371, 375 (Tenn.
Crim. App. 1995). Aside from the fact that the evidence must be both admissible and
material to the issues raised in the petition,

              [a]s a general rule, subsequently or newly discovered evidence
              which is simply cumulative to other evidence in the record or
              serves no other purpose than to contradict or impeach the
              evidence adduced during the course of the trial will not justify
              the granting of a petition . . . when the evidence . . . would not
              have resulted in a different judgment.

Id. (citations omitted).

        In the context of a guilty plea, “in order for a writ to issue, the appellant [has] to
present newly discovered evidence which would show that his plea was not voluntarily or
knowingly entered.” Newsome v. State, 995 S.W.2d 129, 134. (Tenn. Crim. App. 1998).
Thus, the coram nobis court must consider the impact of the newly discovered evidence on
the validity of the petitioner’s plea. A decision whether to grant a writ rests within the sound
discretion of the coram nobis court. See Hart, 911 S.W.2d at 375.

        We are cognizant of the supreme court’s recent order granting a defendant’s
application to appeal a coram nobis case involving a guilty plea. Stephen Bernard Wlodarz
v. State, No. E2008-02179-SC-R11-CO, 2010 Tenn. LEXIS 697, at *1 (Knoxville, Aug. 25,
2010) (order) (stating that for purposes of supplemental briefing and oral argument, the court
was particularly interested in whether the writ of error coram nobis could be used to
challenge a guilty plea conviction). Irrespective of what the supreme court will hold in that
case, the petitioner in the instant case has failed to point to “new” evidence of actual
innocence within the meaning of the coram nobis statute. As stated previously, the defense
possessed the Department of Children’s Services’ Service Activity Report, the Sullivan
County Sheriff Department’s investigative report, the two-page statement given by the
victim’s mother, and the letter from District Attorney General H. Greeley Wells to the
petitioner’s trial attorney prior to the petitioner’s plea. Therefore, those documents do not
constitute new evidence. Regarding the remaining “new” evidence, i.e., the civil depositions
and the letter written by the petitioner’s post-conviction attorney, the petitioner claims that

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the evidence would have shown at trial that an inappropriate association existed between a
member of the victim’s family and the State; would have called into question the victim’s
actual cause of death; would have revealed that any one of ten other suspects, including the
victim’s mother, could have killed the victim; and would have shown at the suppression
hearing that the petitioner’s confession was the result of an illegal arrest. As the coram nobis
court noted in its dismissal of the petition, the petitioner’s “theory seems to go to cross
examination points if he had gone to trial.” Evidence used simply to impeach or contradict
evidence that was presented at the suppression hearing or that would have been presented at
trial does not justify granting a petition for writ of error coram nobis. Regarding any claim
that the petitioner received the ineffective assistance of trial counsel, such an issue also is not
an appropriate ground for relief pursuant to a writ of error coram nobis. Domingo Ponce v.
State, No. M2004-02257-CCA-R3-CO, 2005 Tenn. Crim. App. LEXIS 540, at **7-8
(Nashville, May 31, 2005). The record reflects that the coram nobis court did not abuse its
discretion in dismissing the petition.

                                        III. Conclusion

       Based upon the record and the parties’ briefs, we affirm the judgment of the coram
nobis court.

                                                      ___________________________________
                                                      NORMA McGEE OGLE, JUDGE




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