¹ Although we typically refer to the trial court as “the post-conviction court” when dealing with post-conviction matters, we will refer to the lower court as “the trial court” throughout this opinion because the case involves both post-conviction and writ of error coram nobis issues. ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL and TIMOTHY L. EASTER, JJ., joined. Patrick T. McNally, Nashville, Tennessee, for the appellant, Christopher Lee Shaw. Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant Attorney General; Glenn Funk, District Attorney General; and Megan King, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION I. Factual and Procedural Background Trial On direct appeal, this court summarized the facts presented at trial as follows: Ms. Rosetta Williams and Ms. Patricia Taylor, mother and daughter, resided in an apartment complex in Goodlettsville, Tennessee. In January 2010, they contacted the Goodlettsville Police Department (GPD) to report a “problem” with an individual who frequently visited their apartment complex driving different cars. The problem with the individual was not described in any detail at trial. In September 2010, Ms. Williams met with Detective Les Carlisle and was advised to copy the tag numbers of the different cars in an effort to identify the individual. Ms. Williams was also advised to notify the police the next time she observed the individual in the area. Ms. Taylor assisted her mother in collecting the tag numbers of the different cars driven by the individual when he came to their apartment complex. Ms. Williams testified that she observed the individual at the complex at least ten times. Ms. Taylor said that she observed the individual at the complex at least three or four times a day. At some point prior to the offense, Detective Carlisle investigated the tag numbers of the cars provided to him by Ms. Williams and determined that they were registered to [Petitioner]. A photograph of [Petitioner] was then shown to Ms. Williams and Ms. Taylor, each of whom identified [Petitioner] as the man they had seen in their apartment complex. One of the cars Ms. Williams had observed [Petitioner] driving while in their complex was a white Nissan SUV with tag number “Titan 18TF03.” She had reported the tag number to Detective Carlisle prior to the offense date.

² We note that the trial court applied an incorrect standard, i.e., clear and convincing evidence, in evaluating whether Petitioner established prejudice. The proper standard is whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. Nevertheless, as explained below, we reach the same conclusion that Petitioner failed to establish prejudice under the Strickland standard. - 15 - have approved expert funds pursuant to Rule 13 of the Tennessee Supreme Court Rules. . . . This Court credits the testimony of [t]rial [c]ounsel. Regarding the motion to suppress the pretrial identification by Ms. Williams, the trial court determined that [t]rial [c]ounsel testified that the State gave pre-trial notice of the identifications made by Ms. Williams and Ms. Taylor. Trial [c]ounsel testified the State’s notice prompted him to file his 404(b) motion, which resulted in the pre-trial hearing on January 20, 2012, addressing whether evidence of the outstanding warrants on harassment and the parole violation could be introduced at trial. Information about the single photo identification was placed on the record during Detective Les Carlisle’s testimony at the January 20 hearing. Trial [c]ounsel testified that at the time he was aware of case law regarding single-[photo] identifications and conceded that Petitioner would benefit had the identification been suppressed, but [t]rial [c]ounsel did not believe a motion to suppress would be successful based on the evidence. This Court credits [t]rial [c]ounsel’s testimony. Moreover, Petitioner has not demonstrated a suppression motion would have been meritorious nor has he presented evidence to support the other pre-trial motions referenced in his petition. (citation and footnote omitted). The trial court found that Petitioner failed to show that trial counsel’s performance was deficient for not filing the referenced pretrial motions and that he was prejudiced by any alleged deficiency. Regarding Petitioner’s claim that trial counsel failed to file a pretrial motion for a bill of particulars and a motion challenging the defective indictment, the trial court found that Petitioner’s complaints lacked merit. The trial court concluded, “Trial [c]ounsel testified a bill of particulars was not necessary in this case because the indictment provided sufficient notice of the charges contained therein. This Court credits [trial] counsel’s testimony.” The trial court also found that trial counsel was not deficient in failing to seek an effective election of offenses. The trial court determined that the unpublished case relied on by Petitioner—Gregory Justice v. State, No. M2012-00183- CCA-R3-PC, 2013 WL 1965999, at *1 (Tenn. Crim. App. May 13, 2013), perm. app. denied (Tenn. Oct. 16, 2013)—did not support Petitioner’s claim. The trial court reasoned that “[Gregory] Justice . . . holds the opposite: when charged with the offenses of possession with intent to sell or deliver, the defendant is charged with one offense; thus, no basis exists for the State to make an election.” - 16 - In denying the petition for writ of error coram nobis, the trial court found that the petition was not timely filed. The trial court ruled: The statute of limitations for seeking a writ of error coram nobis is one year from the date the judgment becomes final in the trial court—not one year after the final action in the highest court as with a post-conviction petition. TENN. CODE ANN. §§ 40-26-105, 27-7-103; Mixon, 983 S.W.2d at 671. Here, Petitioner’s judgment became final in the trial court after the verdict in early 2012, but the petition for a writ of error coram nobis was not filed until October 25, 2016, during the pendency of the post[-]conviction proceeding. The trial court considered whether principles of due process precluded the use of the statute of limitations to bar Petitioner’s coram nobis claim but determined that “[n]othing in the record implicates any due process concerns that would require tolling the statute of limitations[.]” The trial court reasoned: [T]he evidence was not “later-arising” since it was available pretrial and during the statutory limitations period . . . . Likewise, the “evidence” concerning [Mr.] Wilkerson does not constitute “newly discovered evidence.” The parties knew of [Mr.] Wilkerson prior to trial and he was referenced during the trial testimony. .... Perhaps most significantly, however, despite the fact Petitioner presented evidence from a notary confirming Mr. Wilkerson signed the prepared affidavit admitting to drug ownership, when Mr. Wilkerson was called to testify at the post-conviction hearing, he would not confirm it was his signature on the affidavit and he invoked his Fifth Amendment right [to remain silent]. The trial court ultimately found that Petitioner failed to meet his burden to warrant a writ of error coram nobis. Petitioner’s timely appeal follows. II. Analysis A. Petition for Post-Conviction Relief On appeal, Petitioner contends that he is entitled to post-conviction relief because he was denied the effective assistance of counsel. Specifically, he contends that trial - 17 - counsel failed to: (1) adequately investigate Adrian Wilkerson; (2) obtain funds for and hire a fact investigator to investigate Mr. Wilkerson; (3) retain an expert witness to consult with and/or offer rebuttal testimony to the State’s expert in undercover narcotics investigations; (4) inform Petitioner that Rosetta Williams and Patricia Taylor made out- of-court identifications of Petitioner driving the white Nissan SUV; (5) file a pretrial motion to suppress a suggestive single photographic identification and tainted in-court identification; and (6) ensure a unanimous jury verdict for Petitioner’s conviction in Count 1 of the indictment—possession of more than twenty-six grams of cocaine with the intent to sell or deliver within a drug-free zone—by filing a motion for bill of particulars, requesting an election of offenses, and challenging the jury instruction to raise an issue of a unanimous verdict. In order to prevail on a petition for post-conviction relief, a petitioner must prove all factual allegations by clear and convincing evidence. Jaco v. State, 120 S.W.3d 828, 830 (Tenn. 2003). Post-conviction relief cases often present mixed questions of law and fact. See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001). Appellate courts are bound by the post-conviction court’s factual findings unless the evidence preponderates against such findings. Kendrick v. State, 454 S.W.3d 450, 457 (Tenn. 2015). When reviewing the post-conviction court’s factual findings, this court does not reweigh the evidence or substitute its own inferences for those drawn by the post-conviction court. Id.; Fields, 40 S.W.3d at 456 (citing Henley v. State, 960 S.W.2d 572, 578 (Tenn. 1997)). Additionally, “questions concerning the credibility of the witnesses, the weight and value to be given their testimony, and the factual issues raised by the evidence are to be resolved by the [post-conviction court].” Fields, 40 S.W.3d at 456 (citing Henley, 960 S.W.2d at 579); see also Kendrick, 454 S.W.3d at 457. The trial court’s conclusions of law and application of the law to factual findings are reviewed de novo with no presumption of correctness. Kendrick, 454 S.W.3d at 457. The right to effective assistance of counsel is safeguarded by the Constitutions of both the United States and the State of Tennessee. U.S. Const. amend. VI; Tenn. Const. art. I, § 9. In order to receive post-conviction relief for ineffective assistance of counsel, a petitioner must prove: (1) that counsel’s performance was deficient; and (2) that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App. 1997) (stating that the same standard for ineffective assistance of counsel applies in both federal and Tennessee cases). Both factors must be proven in order for the court to grant post-conviction relief. Strickland, 466 U.S. at 687; Henley, 960 S.W.2d at 580; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996). Accordingly, if we determine that either factor is not satisfied, there is no need to consider the other factor. Finch v. State, 226 S.W.3d 307, 316 (Tenn. 2007) (citing Carpenter v. State, 126 S.W.3d 879, 886 (Tenn. 2004)). Additionally, review of counsel’s performance “requires that every effort be made to eliminate the distorting - 18 - effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689; see also Henley, 960 S.W.2d at 579. We will not second-guess a reasonable trial strategy, and we will not grant relief based on a sound, yet ultimately unsuccessful, tactical decision. Granderson v. State, 197 S.W.3d 782, 790 (Tenn. Crim. App. 2006). As to the first prong of the Strickland analysis, “counsel’s performance is effective if the advice given or the services rendered are within the range of competence demanded of attorneys in criminal cases.” Henley, 960 S.W.2d at 579 (citing Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)); see also Goad, 938 S.W.2d at 369. In order to prove that counsel was deficient, the petitioner must demonstrate “that counsel’s acts or omissions were so serious as to fall below an objective standard of reasonableness under prevailing professional norms.” Goad, 938 S.W.2d at 369 (citing Strickland, 466 U.S. at 688); see also Baxter, 523 S.W.2d at 936. Even if counsel’s performance is deficient, the deficiency must have resulted in prejudice to the defense. Goad, 938 S.W.2d at 370. Therefore, under the second prong of the Strickland analysis, the petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (quoting Strickland, 466 U.S. at 694) (internal quotation marks omitted). Trial counsel has a duty to “conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed.” Baxter, 523 S.W.2d at 933. “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691; see also State v. Burns, 6 S.W.3d 453, 462 (Tenn. 1999). However, “when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.” Strickland, 466 U.S. at 691. In cases where a petitioner contends that trial counsel failed to present a witness in support of the petitioner’s defense, the petitioner must present such witness at the post- conviction hearing. Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Neither a trial nor an appellate judge can speculate as to whether that witness’s testimony would have been favorable to the defense. Id. Therefore, the petitioner must “produce a material witness who . . . would have testified favorably in support of his defense if - 19 - called [at trial]. Otherwise, the petitioner fails to establish the prejudice requirement mandated by Strickland v. Washington.” Id. at 758. “If a petitioner alleges that trial counsel rendered ineffective assistance of counsel by failing to . . . file a motion to suppress . . . the petitioner is generally obliged to present the witness or the other evidence at the post-conviction hearing in order to satisfy the Strickland prejudice prong.” Demarcus Sanders v. State, No. W2012-01685-CCA-R3- PC, 2013 WL 6021415, at *4 (Tenn. Crim. App. Nov. 8, 2013) (citing Pylant v. State, 263 S.W.3d 854, 869 (Tenn. 2008)), perm. app. denied (Tenn. Mar. 17, 2014). 1. Failure to adequately investigate Mr. Wilkerson Petitioner asserts that trial counsel made no attempt to interview Mr. Wilkerson about why a speeding ticket with his name on it was found in the white Nissan SUV. Petitioner contends that Mr. Wilkerson wanted to speak to trial counsel and that Mr. Wilkerson’s admission of ownership of the drugs in the SUV would have been “powerful evidence” to refute the State’s argument that Petitioner was in constructive possession of the drugs in the SUV. At the post-conviction hearing, trial counsel testified that he and Petitioner talked about Mr. Wilkerson, and trial counsel drafted an examination for Mr. Wilkerson “had [they] chosen to use that at trial.” However, trial counsel explained that because criminal charges were also pending against Mr. Wilkerson, he could not have spoken to Mr. Wilkerson without his attorney present. Trial counsel informed Petitioner that he “could not foresee any circumstance where Mr. Wilkerson would claim the drugs on the [witness] stand” and that he did not believe that “would be an effective defense for [Petitioner].” Trial counsel testified that he spoke to Mr. Wilkerson’s attorney at an early court appearance and asked if he could speak to Mr. Wilkerson. Trial counsel recalled, “[T]he answer was not just no but hell no.” Trial counsel stated that he did not research whether Mr. Wilkerson was the owner of the SUV because [i]t was actually better for us at trial given the way we were proceeding if that person wasn’t -- we had both [Mr.] Wilkerson who we know there was a ticket in the vehicle with his name and then potentially even somebody else. And it was our theory that the more people who could have been driving in that vehicle the more people other than [Petitioner] could have been the ones to put that . . . cocaine in there. As to Petitioner’s claim that trial counsel failed to investigate Mr. Wilkerson, the trial court found that Petitioner failed to establish deficient performance. The trial court determined: - 20 - When [t]rial [c]ounsel was questioned about this issue, he testified that he was aware of [Mr.] Wilkerson who had charges pending at the same time. Trial [c]ounsel testified he spoke with Mr. Wilkerson’s counsel, . . . but [Mr. Wilkerson’s counsel] advised his client would not speak with [t]rial [c]ounsel. This Court credits the testimony of [t]rial [c]ounsel. Moreover, Petitioner has failed to establish how he was prejudiced by this alleged deficiency. Information concerning Mr. Wilkerson was before the jury as evidenced in the record and Petitioner’s citations thereof. Specifically, the trial record shows that [t]rial [c]ounsel cross[-]examined witnesses about Mr. Wilkerson to establish he was the owner of the [SUV]. (citation omitted). We agree with the trial court that Petitioner failed to establish deficient performance and resulting prejudice based on this claim. Mr. Wilkerson had pending criminal charges and was represented by counsel. Trial counsel approached Mr. Wilkerson’s attorney and requested that he be able to speak to Mr. Wilkerson, but he was told “no.” Although Petitioner seems to suggest that trial counsel should have approached Mr. Wilkerson after Mr. Wilkerson was no longer represented by counsel, there is no evidence in the record as to when Mr. Wilkerson’s charges were disposed of. In any event, trial counsel successfully informed the jury through cross-examination of several of the State’s witnesses that the SUV was not registered to Petitioner, that a traffic ticket belonging to Mr. Wilkerson that was found inside the vehicle, and that Mr. Wilkerson was a known drug dealer. Trial counsel offered testimony from Ms. Rolston that Mr. Wilkerson was the owner of the SUV and that it was Mr. Wilkerson and not Petitioner who had been at the apartment complex on the day of the offense. Trial counsel also presented Ms. Phillips, who testified as an alibi witness that Petitioner had been with her at the time of the offense. We agree with the trial court’s determination that trial counsel was not deficient in regards to his investigation into Mr. Wilkerson. Moreover, Petitioner has not shown prejudice resulting from trial counsel’s alleged failure to properly investigate Mr. Wilkerson as the proof does not show that Mr. Wilkerson would have provided favorable material testimony if called to testify at trial. Mr. Wilkerson refused to testify under oath at the post-conviction hearing about the affidavit, his alleged ownership of the cocaine, and his alleged driving of the SUV on the day of the offense prior to Petitioner. Moreover, his refusal to answer questions under oath seriously undercuts the veracity and legitimacy of the affidavit and the claims made therein. Petitioner is not entitled to post-conviction relief on this ground. - 21 - 2. Failure to obtain funds for and retain a fact investigator and expert witness Petitioner contends that trial counsel was ineffective based on his failure to obtain funds to hire a fact investigator to investigate Mr. Wilkerson and an expert in undercover narcotics investigations to rebut the testimony of Lieutenant Mackall. Petitioner contends that, even though trial counsel was retained and he did not think the trial court would approve the funds, trial counsel should have requested them because Rule 13 encourages counsel representing indigent defendants to petition for necessary fact investigator and expert services. Petitioner further argues that Mr. Cothran’s testimony—that the amount of money seized from Petitioner and the scales in the SUV were consistent with a user and that crack users do not always carry a crack pipe—may have changed the outcome of trial had it been presented by trial counsel. At the post-conviction hearing, trial counsel acknowledged that he did not apply for funds to hire an investigator but stated that an investigator was not necessary because “[w]e were aware of what the officers’ testimony was going to be” and that their testimony “could be handled through cross-examination.” He testified that he and Petitioner did not discuss hiring an expert to rebut Lieutenant Mackall’s testimony. He explained that Petitioner’s family was not in the financial position to retain expert services, and trial counsel did not believe that the trial court would approve expert funds pursuant to Rule 13 of the Tennessee Supreme Court Rules as such testimony would not have concerned a medical or scientific issue. In its order denying relief, the trial court accredited the testimony of trial counsel and found no deficient performance or resulting prejudice under Strickland. We agree with the trial court that Petitioner is not entitled to relief on this claim. First, Petitioner has not shown that he would have been entitled to those funds under Rule 13 had trial counsel made the request. Moreover, Petitioner presented no “fact investigator” at the post-conviction hearing, leaving this court to speculate about what benefit a fact investigator would have made to Petitioner’s case. Although Petitioner presented expert testimony from Mr. Cothran at the post-conviction hearing, Mr. Cothran was still employed by the Metropolitan Police Department at the time of Petitioner’s trial and would not have been available as defense expert. In addition, the information testified to by Mr. Cothran at the post-conviction hearing was similar to what trial counsel elicited from Lieutenant Mackall at trial through cross-examination. As noted by this court on direct appeal, “Lieutenant Mackall conceded that he had seen drug users, who were not sellers, with large amounts of money. Additionally, he testified that 1.41 grams of cocaine, the equivalent of 6 or 7 ‘hits,’ was not an unreasonable amount for a user to purchase.” Petitioner has not established any resulting prejudice from trial counsel’s failure to request funds for and retain a fact investigator to investigate Mr. - 22 - Wilkerson and an expert witness in undercover narcotics investigations. He is not entitled to relief on this ground. 3. Failure to inform Petitioner of witnesses’ out-of-court identifications of Petitioner Petitioner asserts that he received ineffective assistance of counsel based upon trial counsel’s failure to keep Petitioner informed about Ms. Williams and Ms. Taylor, who made out-of-court identifications of Petitioner as the driver of the SUV. Petitioner alleges that, had trial counsel informed Petitioner of the identifications earlier, Petitioner would have likely entered a plea deal with the State. At the post-conviction hearing, Petitioner claimed that he was not made aware of the witnesses’ statements until Ms. Williams testified at a 404(b) hearing, which was held on January 20, 2012, three days before his trial was set to begin. Trial counsel testified that Ms. Williams and Ms. Taylor were late-disclosed witnesses for the State. He stated that he did not learn of their statements to police until a supplemental discovery response filed by the State on December 1, 2011. Trial counsel explained that the supplemental discovery response led him to request the 404(b) hearing but that the trial court ultimately decided that the witnesses’ testimony was admissible. Following the trial court’s ruling, Petitioner indicated to trial counsel that he was open to a plea deal, but when trial counsel approached the prosecutor about a deal, he was informed that “all offers [were] off the table[.]” It was unclear from trial counsel’s testimony whether he discussed with Petitioner the late-disclosed witness statements before filing the 404(b) motion. Even assuming that trial counsel failed in this regard, Petitioner has not established prejudice as required under Strickland. Petitioner presented no proof that the State would have made an offer (or accepted an offer) to settle the case against Petitioner if Petitioner had approached the prosecutor for a deal in December, immediately after learning of the late-disclosed witnesses. Although trial counsel could have requested a continuance after the State’s supplemental discovery response, trial counsel testified that requesting a trial continuance would not have been helpful to Petitioner. He explained that he had an alibi witness plus “another witness that would testify that Mr. Wilkerson was the one who had been driving the [SUV]” set to testify on Petitioner’s behalf. Additionally, trial counsel believed that, based upon her testimony at the 404(b) hearing, Ms. Williams’ identification of Petitioner could be challenged through cross-examination. Trial counsel testified that “it made more sense to go ahead and proceed with the trial” because, based upon his conversations with Petitioner, he did not know of any other witnesses “or anybody else we would have called to rebut” Ms. Williams and Ms. Taylor’s identifications. Under these circumstances, we cannot conclude that trial counsel rendered ineffective assistance - 23 - based on the claim that counsel failed to timely inform Petitioner of Ms. Williams’ and Ms. Taylor’s out-of-court identifications of Petitioner. 4. Failure to file a motion to suppress Petitioner next contends that trial counsel rendered ineffective assistance based on trial counsel’s failure to file a pretrial motion to suppress the single photographic identification and subsequent in-court identification by Ms. Williams. Petitioner asserts that, had trial counsel been successful in suppressing the identification, Petitioner could have successfully pursued the defense strategy of denying that he had been driving the SUV, been able to settle the case, or had a “very good issue for relief” on appeal. Regarding a possible motion to suppress the pretrial identification by Ms. Williams, the trial court found: Trial [c]ounsel testified that the State gave pre-trial notice of the identifications made by Ms. Williams and Ms. Taylor. Trial [c]ounsel testified the State’s notice prompted him to file his 404(b) motion, which resulted in the pretrial hearing on January 20, 2012, addressing whether evidence of the outstanding warrants on harassment and the parole violation could be introduced at trial. Information about the single photo identification was placed on the record during Detective Les Carlisle’s testimony at the January 20 hearing. Trial [c]ounsel testified that at the time he was aware of case law regarding single-[photo] identifications and conceded that Petitioner would benefit had the identification been suppressed, but [t]rial [c]ounsel did not believe a motion to suppress would be successful based on the evidence. This Court credits [t]rial [c]ounsel’s testimony. Moreover, Petitioner has not demonstrated a suppression motion would have been meritorious . . . . (citation and footnote omitted). Upon review, we agree with the trial court that Petitioner has not shown that a motion to suppress would have been granted had one been filed by trial counsel. “Under the Due Process Clause of the Fifth Amendment to the United States Constitution, a witness’s pretrial identification of the defendant by photograph will be suppressed ‘only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’” State v. Martin, 505 S.W.3d 492, 500 (Tenn. 2016) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). If the identification procedure was unduly suggestive, the next question is whether the identification was reliable despite the undue suggestion. See Neil v. Biggers, - 24 - 409 U.S. 188, 198-99 (1972). The United States Supreme Court has identified five factors to be considered in making this determination: the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Id. at 199-200. If, using the standard in Biggers, a pretrial confrontation was so impermissibly suggestive that it violated an accused’s right to due process, both the out- of-court and in-court identifications are excluded. See State v. Shanklin, 608 S.W.2d 596, 598 (Tenn. Crim. App. 1980). At the 404(b) hearing, Ms. Williams testified that Petitioner began harassing her in January 2010. When he learned that she had contacted police, Petitioner came to Ms. Williams’ apartment and threatened to harm her for doing so. Petitioner shot several rounds of paintball at her door. When Ms. Williams informed Detective Carlisle that Petitioner drove around her apartment complex in several different cars, he asked her to take down the tag numbers so that Petitioner could be identified. Ms. Williams provided the detective with several tag numbers, from which Detective Carlisle was able to obtain Petitioner’s name. Detective Carlisle showed Ms. Williams a photograph of Petitioner on September 30, 2010, and she positively identified Petitioner as the man who had been harassing her since January 2010. When Ms. Williams identified Petitioner, Ms. Taylor was not present and did not see the photograph. Ms. Williams testified that she was able to recognize Petitioner on the day of the instant offenses because she had seen him ten to twelve times prior. She stated that she got a good look at him each time and that he was always in her line of sight. She testified that, on the day of the underlying crimes, she saw Petitioner arrive in the complex and leave in the same white SUV she had previously seen him driving and alerted the police. In this case, Ms. Williams’ initial identification of Petitioner was in connection to the harassment complaint and not the offenses charged in the instant case, as they had not yet occurred. Even if the identification procedure was unduly suggestive, Petitioner has failed to show under Biggers that Ms. Williams’ identification was unreliable. Ms. Williams had ample opportunity to view Petitioner as she had seen him ten to twelve times prior to October 7, 2010. Ms. Williams stated that she was always on the lookout for Petitioner due to his behavior towards her and that she was certain in her identification of Petitioner as the man seen driving around the apartment complex in the white Nissan SUV. When she saw him on the day of the instant offenses, she - 25 - immediately alerted Detective Carlisle. Multiple other witnesses, including Detective Carlisle, identified Petitioner as the driver of the SUV that day, and after his arrest, Petitioner admitted to police that he had been driving the vehicle. Thus, Ms. Williams’ identification of Petitioner was clearly reliable, notwithstanding the detective’s use of a single photograph. Based on the reliability of Ms. Williams’ identification and the facts and circumstances surrounding the identification procedure, trial counsel’s decision not to file a suppression motion was reasonable and did not constitute deficient performance. Petitioner is not entitled to relief on this ground. 5. Failure to ensure a unanimous jury verdict for Count 1 Petitioner contends that trial counsel rendered ineffective assistance of counsel by failing to ensure a unanimous jury verdict for Count 1. He argues that there were twenty- four possible scenarios for the conviction because there were three quantities of cocaine from three different locations used to prosecute the offense. He contends that trial counsel should have filed a motion for bill of particulars, requested an election of offenses, and/or challenged the jury instruction on the issue of a unanimous verdict. In making this argument, Petitioner contrasts this case with Gregory Justice, 2013 WL 1965999, at *1. In that case, the petitioner asserted that his counsel was ineffective because counsel failed to object to a duplicitous indictment before the trial or on appeal. Id. at *12. The indictment at issue charged that the petitioner “knowingly did possess with intent to sell or deliver .5 grams or more of a substance containing cocaine.” Id. In rejecting the petitioner’s argument, the court noted that the petitioner “was not charged with the two crimes of delivery and sale of cocaine but was charged with the separate crime of possession with the intent to sell or deliver.” Id. (citing Tenn. Code Ann. § 39- 17-417(a)(2)-(4); State v. John Tyree Lytle, No. E2003-01119-CCA-R3-CD, 2004 WL 941003, at *3 (Tenn. Crim. App. May 3, 2004); State v. Angela E. Isabell, No. M2002- 00584-CCA-R3-CD, 2003 WL 21486982, at *3-4 (Tenn. Crim. App. June 27, 2003)). The court noted that the indictment charged the petitioner with one offense and that the proof showed that the petitioner possessed one bag of cocaine, and the court stated that jury unanimity concerns are not implicated when the jury considers proof of only one offense. Id. The court further stated that “[w]hen [a] single crime may be committed by different means, jury unanimity is not required as to the particular means or intent.” Id. (citing Tenn. Code Ann. § 40-18-112 (2012)). In this case, the indictment did not deny Petitioner his right to notice of the crime charged or jury unanimity. Count 1 of the indictment charged that Petitioner, on the 7th day of October, 2010, in Davidson County, Tennessee and before the finding of this indictment, knowingly did possess with intent to - 26 - sell or deliver twenty-six (26) grams or more of a substance containing cocaine, a Schedule II controlled substance on the grounds or facilities within one thousand (1,000) feet of the real property that comprises a preschool, child care agency, public library, recreational center or park, in violation of Tennessee Code Annotated § 39-17-417, and against the peace and dignity of the State of Tennessee. (Emphasis added). At trial, TBI Agent Scott testified that the substance containing cocaine base found in Petitioner’s pants weighed 1.41 grams, the crack rock found in plain view in the console of the SUV weighed 28.82 grams, and that the bag of powder cocaine found in the SUV weighed 6.8 grams. Christopher Lee Shaw, 2013 WL 5310489, at *5. Petitioner insists that his case is distinct from Gregory Justice because the cocaine he possessed was in three different containers—his pants, the SUV console, and a bag inside the SUV. While true, Petitioner is still not entitled to relief because he, like the petitioner in Gregory Justice, was charged with only one offense: possession with the intent to sell or deliver more than 26 grams of cocaine. The offense involved only one transaction or one criminal episode. Instead of being charged with three counts of felony drug possessions, the containers of cocaine were combined to charge Petitioner with one offense. When only a single transaction is at issue, an election of offenses is not necessary. See State v. Adams, 24 S.W.3d 289, 294 (Tenn. 2000). Here, there was no issue involving jury unanimity because the jury considered proof of only one felony drug offense. Because the indictment in this case did not deny Petitioner his right to notice of the crime charged or jury unanimity, Petitioner has not shown that trial counsel was deficient or that he was prejudiced by trial counsel’s failure to file a motion for bill of particulars, request an election of offenses, and/or challenge the jury instruction on the issue of a unanimous verdict. Petitioner is not entitled to relief on this issue. B. Petition for Writ of Error Coram Nobis On appeal, Petitioner acknowledges that he filed the petition for writ of error coram nobis outside the statute of limitations but argues that due process should toll the statute of limitations because Mr. Wilkerson did not execute the affidavit until after the limitations period had expired. He asserts that the admissions in the affidavit were unavailable at the time of trial and are newly discovered evidence which “likely would have changed the outcome of the trial.” The State responds that because Petitioner failed to demonstrate that he is entitled to relief from the statute of limitations, the trial court properly denied the petition for the writ. - 27 - Tennessee Code Annotated section 40-26-105 provides relief in criminal cases by petition for error coram nobis and states in pertinent part: The relief obtainable by this proceeding shall be confined to error dehors the record and to matters that were not or could not have been litigated on the trial of the case, on a motion for new trial, on appeal in the nature of a writ, on writ of error, or in a habeas corpus proceeding. 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 were litigated at the trial if the judge determines that such evidence may have resulted in a different judgment, had it been presented at the trial. Tenn. Code Ann. § 40-26-105(b) (2016). A petition for writ of error coram nobis should recite: (a) the grounds and nature of the newly discovered evidence; (b) why the admissibility of the newly discovered evidence may have resulted in a different judgment if the evidence had been admitted at the previous trial; (c) the petitioner was without fault in failing to present the newly discovered evidence at the appropriate time; and (d) the relief sought by the petitioner. State v. Hart, 911 S.W.2d 371, 374-75 (Tenn. Crim. App. 1995) (internal citations and quotation marks omitted). The writ of error coram nobis is “an extraordinary procedural remedy,” providing relief in only a limited number of cases. State v. Mixon, 983 S.W.2d 661, 672 (Tenn. 1999) (emphasis in original). “The purpose of this remedy ‘is to bring to the attention of the [trial] court some fact unknown to the court, which if known would have resulted in a different judgment.’” Hart, 911 S.W.2d at 374 (quoting State ex rel. Carlson v. State, 407 S.W.2d 165, 167 (Tenn. 1966)). The decision of whether to grant or deny a petition for writ of error coram nobis on its merits rests within the sound discretion of the trial court. State v. Vasques, 221 S.W.3d 514, 527-28 (Tenn. 2007); Hart, 911 S.W.2d at 375. Before granting relief, the evidence must establish, and the trial court must find, “that the subsequently or newly discovered evidence ‘may have resulted in a different judgment had it been presented at the trial.’” Hart, 911 S.W.2d at 375 (quoting Tenn. Code Ann. § 40-26-105). The newly discovered evidence must be admissible and credible because the ultimate issue is whether the result at trial would have been different with all relevant evidence presented. Wilson v. State, 367 S.W.3d 229, 235 (Tenn. 2012), overruled on other grounds by Nunley v. State, 552 S.W.3d 800, 828 (Tenn. 2018). Accordingly, the - 28 - trial court must be “reasonably well satisfied” with the veracity of the new evidence. Vasques, 221 S.W.3d at 527. Petitions for writ of error coram nobis are subject to a one-year statute of limitations. Tenn. Code Ann. § 27-7-103 (2016). “The statute of limitations is computed from the date the judgment of the trial court becomes final, either thirty days after its entry in the trial court if no post-trial motions are filed or upon entry of an order disposing of a timely filed, post-trial motion.” Harris v. State, 301 S.W.3d 141, 144 (Tenn. 2010) (citing Mixon, 983 S.W.2d at 670), overruled on other grounds by Nunley, 552 S.W.3d at 828. Calculating the statute of limitations in this manner is consistent with the “longstanding rule that persons seeking relief under the writ must exercise due diligence in presenting the claim.” Mixon, 983 S.W.2d at 670; see also Harris, 301 S.W.3d at 144. Recently, our supreme court determined that “compliance with the timely filing requirement . . . is an essential element of a coram nobis claim.” Nunley, 552 S.W.3d at 828. However, a petitioner can request equitable tolling of the limitations period. Id. To determine whether due process requires tolling, courts must balance the State’s interest in preventing “stale and groundless” claims against the petitioner’s interest in having a hearing to present newly discovered evidence which may have led the jury to a different verdict if it had been presented at trial. Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001). To balance these interests, courts should use a three-step analysis: (1) determine when the limitations period would normally have begun to run; (2) determine whether the ground 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. Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995); see also Harris, 301 S.W.3d at 145. Likewise, “the coram nobis petition must be filed within a time period that ‘does not exceed the reasonable opportunity afforded by due process.’” Nunley, 552 S.W.3d at 830 (quoting Sample v. State, 82 S.W.3d 267, 275 (Tenn. 2002)); see Workman, 41 S.W.3d at 103. Whether due process considerations require tolling the statute of limitations is a mixed question of law and fact, which we review de novo with no presumption of correctness. Harris, 301 S.W.3d at 144 (citing Brown v. Erachem Comilog, Inc., 231 S.W.3d 918, 921 (Tenn. 2007)). In this case, the trial court found that the petition was not timely filed, noting that “Petitioner’s judgment[s] became final in the trial court after the verdict in early 2012, - 29 - but the petition for a writ of error coram nobis was not filed until October 25, 2016, during the pendency of the post[-]conviction proceeding.” The trial court considered whether principles of due process precluded the use of the statute of limitations to bar Petitioner’s coram nobis claim but determined that “[n]othing in the record implicates any due process concerns that would require tolling the statute of limitations[.]” The trial court reasoned: [T]he evidence was not “later-arising” since it was available pretrial and during the statutory limitations period . . . . Likewise, the “evidence” concerning [Mr.] Wilkerson does not constitute “newly discovered evidence.” The parties knew of [Mr.] Wilkerson prior to trial and he was referenced during the trial testimony. Although the identity of Mr. Wilkerson was known to Petitioner at the time of trial, Petitioner asserts that the grounds for relief “actually arose after the limitations period would normally have commenced” because he did not have access to Mr. Wilkerson’s affidavit and the admissions in the affidavit until January 2016. Even assuming that Petitioner is entitled to due process tolling, we conclude that the trial court did not abuse its discretion in denying coram nobis relief. The trial court rejected Petitioner’s claim that Mr. Wilkerson’s affidavit qualified as substantive admissible evidence which may have resulted in a different judgment had it been presented at trial. The trial court noted that “despite the fact that Petitioner presented evidence from a notary confirming Mr. Wilkerson signed the prepared affidavit admitting to drug ownership, when Mr. Wilkerson was called to testify at the post-conviction hearing, he would not confirm it was his signature on the affidavit[,]” and Mr. Wilkerson invoked his Fifth Amendment right to remain silent. Newly discovered evidence must be credible because the ultimate issue is whether the result at trial would have been different with all relevant evidence presented. Wilson, 367 S.W.3d at 235. Here, the trial court recognized that Mr. Wilkerson’s refusal to answer questions about the case under oath undercut the veracity and legitimacy of the information contained in the affidavit. Because the trial court was not “reasonably well satisfied” with the veracity of the new evidence, the court did not abuse its discretion by denying coram nobis relief. III. Conclusion After a thorough review of the facts and applicable case law, we affirm the trial court’s denial of relief. ____________________________________ ROBERT L. HOLLOWAY, JR., JUDGE - 30 -