Nunley v. State

Citation552 S.W.3d 800
Decision Date19 July 2018
Docket NumberNo. W2016-01487-SC-R11-ECN,W2016-01487-SC-R11-ECN
Parties Tommy NUNLEY v. STATE of Tennessee
CourtSupreme Court of Tennessee

552 S.W.3d 800

Tommy NUNLEY
v.
STATE of Tennessee

No. W2016-01487-SC-R11-ECN

Supreme Court of Tennessee, AT JACKSON.

November 30, 2017 Session1
FILED July 19, 2018


Lance R. Chism, Memphis, Tennessee, for the Petitioner/Appellant, Tommy Nunley.2

Herbert H. Slatery III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Zachary T. Hinkle, Assistant Attorney General, for the Respondent/Appellee, State of Tennessee.

Holly Kirby, J., delivered the opinion of the Court, in which Jeffrey S. Bivins, C.J., and Cornelia A. Clark, Sharon G. Lee, and Roger A. Page, JJ., joined.

Holly Kirby, J.

This appeal arises out of the appellant prisoner’s petition for a writ of error coram nobis. The petitioner, convicted of aggravated rape in 1998, asserted in his petition that the State violated his constitutional right to due process of law by withholding exculpatory evidence from the defense in his trial, in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Without asking the State for a response to the coram nobis petition and without an evidentiary hearing, the trial court dismissed the petition in part because it was filed long after expiration of the one-year statute of limitations and demonstrated no reason for equitable tolling of the statute of limitations. The Court of Criminal Appeals declined to consider the statute of limitations because the State had not pled it as an affirmative defense, but affirmed the dismissal because the petition did not present newly discovered evidence warranting coram nobis relief. On appeal, we initially clarify that an error coram nobis proceeding is not the appropriate procedural vehicle for obtaining relief on the ground that the petitioner suffered a constitutional due process violation under Brady . As to the petition, we hold that (1) coram nobis petitions with insufficient allegations are susceptible to summary dismissal on the face of the petition, without discovery or an evidentiary hearing; (2) Tenn. R. Civ. P 8.03 does not apply to a petition for writ of error coram nobis ; (3) timeliness under the statute of limitations is an "essential element" of a coram nobis claim that must be demonstrated on the face of the petition; and (4) if the petitioner seeks equitable tolling of the statute of limitations, the facts supporting the tolling request must likewise appear on the face of the petition. Applying this standard, we find no error in the trial court’s decision to dismiss the coram nobis petition and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In February 1998, a Shelby County jury convicted Petitioner/Appellant Tommy Nunley of aggravated rape of his thirteen-year-old female cousin on January 17, 1996. The trial court sentenced him to twenty-five years of imprisonment.3 Nunley v. State , No. W2003-02940-CCA-R3-PC, 2006 WL 44380, at *1 (Tenn. Crim. App. Jan. 6, 2006), perm. app. dismissed (Tenn. June 26, 2006). On direct appeal, the Court of Criminal Appeals affirmed

552 S.W.3d 807

the conviction and the sentence. State v. Nunley , No. 02C01-9804-CR-00114, 1999 WL 135044, at *1 (Tenn. Crim. App. Mar. 12, 1999), perm. app. denied (Tenn. Sept. 13, 1999).

On July 25, 2000, Nunley filed a petition for post-conviction relief. Nunley , 2006 WL 44380, at *2. The petition claimed that Nunley’s "trial counsel was ineffective for failing to move for state-funded expert assistance for DNA testing of various items collected during the investigation of the case." Id. The post-conviction court conducted an evidentiary hearing on the motion. Id. In the hearing, the assistant public defender who represented Nunley prior to trial4 testified that she had requested DNA testing of a substance that appeared to be semen on the victim’s gray pants, but the Memphis Sexual Assault Resource Center told her that the specimen was too small to conduct any tests. Id. at *2. Nunley acknowledged that the assistant public defender had told him this information. Id. at *4.

On September 13, 2001, the post-conviction court entered an order, sua sponte , directing the TBI to conduct DNA comparison testing on biological samples from Nunley and those in the victim’s sexual assault kit. Id. at *4. On June 27, 2003, the State reported that the sexual assault kit had been either lost or destroyed and was no longer available for testing.5 Id. at *4. On July 11, 2003, the post-conviction court granted Nunley’s petition for post-conviction relief, finding that the failure to test the evidence at the time of trial resulted in a violation of Nunley’s constitutional right to a fair trial. Id. The State appealed.

The Court of Criminal Appeals reversed the post-conviction court. Id. at *7. The proof did not support a finding that trial counsel’s request for DNA testing would have affected the outcome of Nunley’s trial, the appellate court stated, without "engag[ing] in pure conjecture." Id. at *6. For this reason, it held that Nunley had failed to establish that he suffered prejudice from his trial counsel’s allegedly deficient performance, and on this basis reinstated the judgment of conviction. Id. at *7.

In May 2014, Nunley filed a petition for relief under the Post-Conviction DNA Analysis Act,6 requesting DNA testing on all evidence in the State’s possession. Nunley v. State , No. W2014-01776-CCA-R3-PC, 2015 WL 1650233, at *1 (Tenn. Crim. App. April 13, 2015), perm. app. denied (Tenn. Sept. 21, 2015). The State filed a response in opposition on July 7, 2014. Id. Ten days later, the trial court denied Nunley’s petition based on the post-conviction court’s prior finding that any evidence that would have been tested no longer existed. Id. The Criminal Court of Appeals affirmed. Id. at *3.

On May 25, 2016, Nunley delivered a pro se petition for writ of error coram nobis to prison officials for mailing; it was filed with the Shelby County Criminal Court on May 31, 2016. Nunley’s coram nobis petition claimed that the State’s July 7, 2014 response to his petition for post-conviction DNA analysis included four exculpatory exhibits of which he had not previously

552 S.W.3d 808

been aware. The coram nobis petition asserted that this demonstrated a Brady violation:

[T]he State violated his constitutional right to due process of law, and in particular the principle announced in Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by withholding and failing to provide the defense copies of exculpatory evidence, specifically the results of DNA Analysis Test Reports, concerning [the victim’s] Rape Kit and other clothing items, conducted by Cellular and Molecular Forensics Laboratory that exonerated [him] of the offense of Aggravated Rape[.]

The first exhibit to Nunley’s coram nobis petition, Exhibit A, includes two reports from the Cellular and Molecular Forensics Laboratory at the University of Tennessee, Memphis.7 Exhibit B consists of two letters from the assistant district attorney to the TBI Crime Lab, sent in advance of trial, asking for DNA testing of the evidence in Nunley’s case, or at least blood typing. Exhibit C is an "Official Serology Report" from the TBI Crime Lab, dated September 25, 1997.

The fourth exhibit, Exhibit D, is a "memo" to the prosecution’s case file from Assistant District Attorney David Shapiro, dated October 3, 1997. A type-written statement on the memo reads, "I spoke to Steve Wiechman at the TBI lab. His lab’s policy is not to re-do tests already done by another certified lab. The local lab (Becky Joyner’s outfit) determined that there was no match between the defendant and the [victim]. He will not re-do any tests." It also includes a photocopied hand-written note dated September 2, stating that Steve Wiechman of the TBI Lab had called regarding Nunley’s case and adding the following hand-written message: "TBI no longer does blood grouping. Due to Becky Joyner [sic] results, he cannot do DNA. He will not re-do Becky Joyner’s test."

In his coram nobis petition, Nunley claimed that these four exhibits demonstrate that, prior to trial, the State knew that the victim’s rape kit and clothing items were subjected to DNA testing by Cellular and Molecular Forensics Laboratory and that the testing exonerated him of the offense of aggravated rape.8 He contended that the exhibits established that the State withheld exculpatory evidence that would have exonerated him, in violation of his constitutional right to due process under Brady v. Maryland , 373 U.S. at 87, 83 S.Ct. 1194 ("We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."). Nunley asserted that he was "reasonably diligent in discovering the new evidence" and that "the jury might have reached a different conclusion had the truth been told based on the new evidence." He asked the trial court to set aside his conviction and grant him a new trial pursuant to

552 S.W.3d 809

Tennessee Code section 40-26-105(c) (2012 & Supp. 2017).

The trial court did not seek a response from the State on Nunley’s coram nobis petition and did not conduct an evidentiary hearing on it. It...

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