Court of Criminal Appeals of Tennessee, Nashville
Assigned on Briefs February 12, 2019
from the Criminal Court for Davidson County No. 2003-A-492
Monte Watkins, Judge
Fredrick Leon Tucker, appeals the denial of his petition for
a writ of error coram nobis based upon newly discovered
evidence. We find that the error coram nobis court, in
violation of Tennessee Supreme Court Rule 10B, failed to rule
on Petitioner's motion to recuse before entering an order
denying the petition. Therefore, we vacate the order denying
the petition for a writ of error coram nobis and remand for
consideration of the petition. Furthermore, in order to avoid
even the possibility of an appearance of impropriety, the
original error coram nobis judge is recused from further
proceedings in this case.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Court Vacated and Remanded
Fredrick Leon Tucker, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Renee
W. Turner, Senior Assistant Attorney General; Glenn R. Funk,
District Attorney General; and Roger Moore, Assistant
District Attorney General, for the appellee, State of
T. Woodall, J., delivered the opinion of the court, in which
Robert W. Wedemeyer and Timothy L. Easter, JJ., joined.
T. WOODALL, JUDGE
was convicted of rape of a child and sentenced to twenty-one
years in the Department of Correction. This court affirmed
the conviction on appeal. State v. Frederick Leon
Tucker, No. M2005-00839-R3-CD, 2006 WL 547991 (Tenn.
Crim. App. Mar. 7, 2006). Petitioner filed a petition for
post-conviction relief, which was denied by the
post-conviction court. This court affirmed the denial on
appeal. Fredrick Tucker v. State, No.
M2007-00681-CCA-R3-PC, 2008 WL 2743644 (Tenn. Crim. App. July
14, 2008). Thereafter, Petitioner sought a writ of error
coram nobis alleging that the victim's forensic interview
was not presented at trial or his post-conviction hearing,
denying him due process. After a hearing, the error coram
nobis court found no due process concerns and that the
petition was not filed within the applicable statute of
limitations. This court affirmed the denial on appeal.
State v. Frederick Leon Tucker, No.
M2013-01077-CCA-R3-CO, 2014 WL 2001439 (Tenn. Crim. App. May
filed a second petition for writ of error coram nobis, the
subject of this appeal, alleging that he was not provided
with the videotape of the forensic interview with the victim
and that he was only provided with a partial transcript of
the interview, which resulted in a due process violation.
Filed with the petition was Petitioner's motion for
recusal of the error coram nobis judge and an affidavit in
support of the motion pursuant to Tennessee Supreme Court
Rule 10B. The error coram nobis court entered an order
summarily denying the petition for writ of error coram nobis,
finding that there were no due process concerns that would
entitle Petitioner to relief and that the petition was not
filed within the applicable statute of limitations. The error
coram nobis court did not address the motion for recusal, and
there is not a separate order ruling on the recusal motion.
The trial court clerk's "Certificate of Appellate
Record" included within the record on appeal certifies
that items transmitted to the Court of Criminal Appeals
include "all of the designated papers on file in my
office in the captioned case."
appeal, the first issue raised by Petitioner in his brief is
that the error coram nobis court never ruled on his 10B
motion for recusal. The ...