02/13/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs January 10, 2017

                   TAMIR CLARK v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Rutherford County
                      No. F-66462        Royce Taylor, Judge
                     ___________________________________

                            No. M2016-01079-CCA-R3-ECN
                        ___________________________________

In 2012, the Petitioner, Tamir Clark, pleaded guilty to especially aggravated kidnapping,
arson, especially aggravated robbery, and attempted first degree murder. The Petitioner
later filed a post-conviction petition alleging ineffective assistance of counsel and that his
guilty plea was involuntary. The post-conviction court denied the petition, and this Court
affirmed the denial on appeal. See State v. Tamir Clark, No. M2014-00618-CCA-R3-PC,
2014 WL 7191536, at *1 (Tenn. Crim. App., at Nashville, Dec. 18, 2014), perm. app.
denied (Tenn. April 13, 2015). On February 24, 2016, the Petitioner filed a petition for a
writ of error coram nobis alleging newly discovered evidence. In March 2016, the trial
court issued an order dismissing the petition as time-barred. We affirm the trial court’s
judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and ROBERT L. HOLLOWAY, JR., J., joined.

Tamir Clark, Clifton, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Jennings H. Jones, District Attorney General; and J. Paul Newman,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                             I. Facts and Procedural History


       The Petitioner pleaded guilty, on November 21, 2012, to especially aggravated
kidnapping, arson, especially aggravated robbery, and attempted first degree murder of
his stepmother. These convictions arose out of the Petitioner’s breaking into his
stepmother’s residence, attacking her, stabbing her, and then dragging her from the
residence and placing her in her vehicle parked in the driveway. The Petitioner attempted
to steal the vehicle but instead started a fire in the front compartment of the vehicle. The
Petitioner’s stepmother was pulled out of the vehicle before it ultimately exploded.

       The Petitioner, pro se, filed a petition for writ of error coram nobis on February
24, 2016, alleging newly discovered evidence. He asserted that the newly discovered
evidence was the victim’s hospital records that he claimed showed that the victim was not
treated for stab wounds and that she did not suffer from life-threatening injuries. The
Petitioner asserted that he did not receive this evidence from his attorney until October 9,
2015, and that this evidence would have provided him a defense for trial.

       After reviewing the petition, the trial court filed an order denying relief. In its
order dated, March 11, 2016, the trial court made the following findings:

               The Court finds the claim concerning the hospital records is time
       barred and filed outside of the applicable statute of limitations designated
       for this type of relief. Although the statute of limitations would have
       expired in December 2013, the claimed grounds for relief did not arise until
       October 2015. This Court finds, however, that a strict application of the
       limitations period does not deny the petitioner a reasonable opportunity to
       present his claim. Because the hospital records upon which [petitioner]
       relies as his grounds for relief were in the possession of [petitioner]’s
       attorney at the time of the plea, the records were not hidden or unknown.
       The records could have been addressed at trial or during plea negotiations.

It is from this judgment that the Petitioner now appeals.

                                        II. Analysis

        On appeal, the Petitioner argues that the trial court erred when it dismissed his
petition for a writ of error coram nobis because newly discovered evidence entitles him to
relief. He argues that his attorney was ineffective for failing to inform him of the hospital
records and that he filed his writ of error coram nobis four months after learning of the
hospital records; thus, the trial court should not have found his claim time-barred. The
State responds that the Petitioner is not entitled to coram nobis relief because the
convictions are the result of a guilty plea. We agree with the State.

       Tennessee Code Annotated section 40-26-105 (2012) provides:



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              There is hereby made available to convicted defendants in criminal
      cases 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, except insofar as inconsistent herewith. . . .
      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 are litigated at the trial if the judge determines that such
      evidence may have resulted in a different judgment, had it been presented at
      trial.

(emphasis added). It is well-established that the writ of error coram nobis “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). Generally, a decision whether
to grant a writ rests within the sound discretion of the coram nobis court. See State v.
Hart, 991 S.W.2d 371, 375 (Tenn. Crim. App. 1995). We, therefore, review for abuse of
discretion. See State v. Workman, 111 S.W.3d 10, 18 (Tenn. Crim. App. 2002).

        As the State correctly notes, the Tennessee Supreme Court recently held in Frazier
v. State, that coram nobis relief “is not available as a procedural mechanism for
collaterally attacking a guilty plea.” 495 S.W.3d 246, 253 (Tenn. 2016). As the
Petitioner’s convictions are the result of a guilty plea, he is not entitled to coram nobis
relief.

                                     III. Conclusion

      Based upon the foregoing reasoning and authorities, we affirm the trial court’s
dismissal of the Petitioner’s petition.


                                                 _________________________________
                                                 ROBERT W. WEDEMEYER, JUDGE




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