        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs April 26, 2017 at Knoxville

          CHARLES BRENDEN DAVIS v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                  No. 2013-A-180     Cheryl A. Blackburn, Judge
                     ___________________________________

                 No. M2016-02512-CCA-R3-PC – Filed May 23, 2017
                      ___________________________________


The Petitioner’s convictions were affirmed by this court on direct appeal and no
Tennessee Rule of Appellate Procedure 11 application for permission to appeal was filed.
The Petitioner filed an untimely petition for post-conviction relief, alleging that he
received the ineffective assistance of counsel and requesting that he be allowed to file a
delayed Rule 11application. The post-conviction court summarily dismissed the petition.
On appeal, the Petitioner argues that the post-conviction court erred in summarily
dismissing his petition because the statute of limitations should be tolled under due
process. After a thorough review of the record and applicable case law, we affirm.

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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Charles Brenden Davis, Tiptonville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Glenn Funk, District Attorney General; and Megan King, Assistant District Attorney
General, for the appellee, State of Tennessee.


                                      OPINION
                        I. Factual and Procedural Background

       The Petitioner was indicted for two counts of aggravated burglary, theft of
property valued at $1,000 or more but less than $10,000, theft of property valued at $500
or less, and employing a firearm during the commission of a dangerous felony. State v.
Charles B. Davis, No. M2013-01903-CCA-R3-CD, 2015 WL 1275369, at *1 (Tenn.
Crim. App. Mar. 18, 2015), no perm. app. filed. The Petitioner pled guilty to one count
of aggravated burglary and was convicted by a jury of theft of property valued at $1000
or more but less than $10,000, theft of property valued at $500 or less, and employing a
firearm during the commission of a dangerous felony. Id. at *3. The jury acquitted the
Petitioner of the remaining count of aggravated burglary. Id. The trial court sentenced
the Petitioner to an effective sentence of twenty years as a Range II, multiple offender.
Id. On appeal, this court affirmed the Petitioner’s convictions. Id. at *6.

                                Post-Conviction Proceeding

        After this court issued its opinion affirming the Petitioner’s convictions on direct
appeal, the Petitioner’s appellate counsel filed a motion to withdraw on April 1, 2015. In
a letter also dated April 1, 2015, appellate counsel informed the Petitioner that he was
withdrawing from the case, that he would not file a Rule 11 application on the
Petitioner’s behalf, that the Petitioner could file a Rule 11 application pro se if this court
granted the motion to withdraw, and that the deadline for filing the application was on or
before May 18, 2015. The letter stated four times that the Petitioner’s deadline for filing
a Rule 11 application was on May 18, 2015. This court granted appellate counsel’s
motion to withdraw on April 10, 2015.

         The Petitioner did not file a Rule 11 application and instead filed an untimely
petition for post-conviction relief on August 17, 2016. In his petition, the Petitioner
sought to file a delayed Rule 11 application to seek review of his conviction by the
Tennessee Supreme Court. The Petitioner asserted that on April 6, 2015, he received the
letter from appellate counsel informing him that appellate counsel had filed a motion to
withdraw and that his Rule 11 application was due on May 18, 2015, leaving the
Petitioner only forty-one days to obtain his case file and transcripts, review the
documents, and prepare and file his Rule 11 application. The Petitioner also asserted that
“[d]ue process concerns require the tolling of a petition for post-conviction in regard to a
request for a delayed appeal following unilateral termination of direct appeal following
first-tier review, at no fault of [the P]etitioner’s own.”

       On August 31, 2016, the post-conviction court summarily dismissed the
Petitioner’s claims on the ground that his petition was time-barred. The post-conviction
court noted that the Petitioner did not “address why he filed his request for post-
conviction relief outside the one-year statute of limitations period.” The post-conviction
court also noted that neither of the grounds for relief that the Petitioner raised, ineffective
assistance of counsel and his request for a delayed Rule 11 application, fell under “any of

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the recognized exceptions to the statute of limitations.” Therefore, the post-conviction
court denied relief to the Petitioner. Thereafter, the Petitioner filed a notice of appeal.1

                                             II. Analysis

       The Petitioner argues that the post-conviction court erred in summarily dismissing
his petition requesting a delayed Rule 11 application. He asserts that he “was denied his
statutory and constitutional rights to his second-tier review at the direct appeal level.”

                           Timeliness of the Post-Conviction Petition

       The State contends that the Petitioner’s petition is time-barred because he filed it
more than a year after this court’s opinion on his direct appeal was filed. The Petitioner
concedes that the petition was filed outside the applicable statute of limitations but argues
that the statute of limitations for his post-conviction petition should be tolled for due
process concerns.

                                   Statutory Tolling Provisions

        The Post-Conviction Procedure Act states the following:

        [A] person in custody under a sentence of a court of this state must petition
        for post-conviction relief under this part within one (1) year of the date of
        the final action of the highest state appellate court to which an appeal is
        taken or, if no appeal is taken, within one (1) year of the date on which the
        judgment became final, or consideration of the petition shall be barred.

Tenn. Code Ann. § 40-30-102(a). Pursuant to Tennessee Code Annotated section 40-30-
102(b), a court does not have jurisdiction to consider a petition for post-conviction relief
filed outside the one-year statute of limitations unless “[t]he claim in the petition is based
upon a final ruling of an appellate court establishing a constitutional right that was not
recognized as existing at the time of trial, if retrospective application of that right is
required[,]” “[t]he claim in the petition is based upon new scientific evidence establishing
that the petitioner is actually innocent of the offense or offenses for which the petitioner
was convicted[,]” or the petitioner “seeks relief from a sentence that was enhanced
because of a previous conviction and the conviction in the case in which the claim is

        1
          The Petitioner asserts that he filed a notice of appeal on September 26, 2016. However, this
notice of appeal was not included in the technical record, and it appears to have been received by our
court on December 9, 2016, along with the Petitioner’s second notice of appeal, dated December 3, 2016.
The State argues that this court should dismiss this appeal because the notice of appeal was untimely. We
will waive the timely notice of appeal in the interests of justice. See Tenn. R. App. P. 4(a).
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asserted was not a guilty plea with an agreed sentence, and the previous conviction has
subsequently been held to be invalid[.]” Tenn. Code Ann. § 40-30-102(b).

       The question of whether the one-year statute of limitations for filing a petition for
post-conviction relief should be tolled under the Post-Conviction Procedure Act is a
mixed question of law and fact that is subject to de novo review. Bush v. State, 428
S.W.3d 1, 16 (Tenn. 2014). 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). 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 v.
State, 40 S.W.3d 450, 456 (Tenn. 2001). (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 post-conviction
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.

        There is no evidence in the record that the Petitioner’s request for a delayed Rule
11 application is “based upon a final ruling of an appellate court establishing a
constitutional right that was not recognized as existing at the time of trial, if retrospective
application of that right is required.” See id. at § 40-30-102(b)(1). There is also no
evidence in the record that the Petitioner’s claim is “based upon new scientific evidence
establishing that the petitioner is actually innocent of the offense or offenses for which
the petitioner was convicted[.]” See id. at § 40-30-102(b)(2). Finally, there is no
evidence in the record that the Petitioner’s claim “seeks relief from a sentence that was
enhanced because of a previous conviction and the conviction in the case in which the
claim is asserted was not a guilty plea with an agreed sentence, and the previous
conviction has subsequently been held to be invalid[.]” See id. at § 40-30-102(b)(3).
Therefore, the Petitioner is not entitled to statutory tolling of the one-year filing deadline.
We will next address whether due process concerns should toll the statute of limitations
in this case.

                                    Due Process Tolling

       Tennessee courts “have previously recognized that in certain circumstances, strict
application of the statute of limitations would deny a defendant a reasonable opportunity
to bring a post-conviction claim and thus, would violate due process.” Williams v. State,
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44 S.W.3d 464, 468 (Tenn. 2001). When a petitioner fails to timely file a petition for
post-conviction relief due to circumstances outside of his control, due process requires
tolling of the statute of limitations. Id. at 468-69. Due process concerns may toll the
statute of limitations when the petitioner is mentally incompetent or if the petitioner’s
trial counsel misrepresented to the petitioner that trial counsel was still representing the
petitioner, thereby precluding the petitioner from filing a pro se petition for post-
conviction relief. Id. at 469 (citing Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000)).
Additionally, “in certain circumstances, due process prohibits the strict application of the
post-conviction statute of limitations to bar a petitioner’s claim when the grounds for
relief, whether legal or factual, arise after the ‘final action of the highest state appellate
court to which an appeal is taken’—or, in other words, when the grounds arise after the
point at which the limitations period would normally have begun to run.” Sands v. State,
903 S.W.2d 297, 301(Tenn. 1995) (quoting Tenn. Code Ann. § 40-30-102(a)); see also
Burford v. State, 845 S.W.2d 204, 210 (Tenn. 1992).

       “A petitioner is entitled to due process tolling upon a showing (1) that he or she
has been pursuing his or her rights diligently, and (2) that some extraordinary
circumstance stood in his or her way and prevented timely filing.” Whitehead v. State,
402 S.W.3d 615, 631 (Tenn. 2013) (citing Holland v. Florida, 560 U.S. 631, 649 (2010)).
A petitioner can establish the second prong of this test “when the [petitioner]’s attorney
of record abandons the [petitioner] or acts in a way directly adverse to the [petitioner]’s
interests, such as by actively lying or otherwise misleading the [petitioner] to believe
things about his or her case that are not true.” Id. Additionally, establishing that he has
pursued his rights diligently “does not require a [petitioner] to undertake repeated
exercises in futility or to exhaust every imaginable option, but rather to make reasonable
efforts[.] Moreover, the due diligence inquiry is an individualized one that must take into
account the conditions of confinement and the reality of the prison system.” Id. (citing
Downs v. McNeil, 520 F.3d 1311, 1323 (11th Cir. 2008)) (internal quotation marks
omitted).

       While the Petitioner does not state with specificity which due process concerns are
at issue in his case, we assume that the Petitioner argues that the statute of limitations
should be tolled because of attorney misconduct. He states that appellate counsel
retained possession of his case files throughout the statute of limitations for his Rule 11
application for permission to appeal.

        In Whitehead v. State, the petitioner’s appellate counsel miscalculated the deadline
for filing for post-conviction relief and did not send the petitioner’s case file to him until
the correct deadline had passed. Whitehead, 402 S.W.3d at 621. In its application of the
two-prong test to the petitioner’s case, the supreme court determined that the petitioner
had pursued his rights diligently; the petitioner began researching post-conviction case
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law when he received the letter from his appellate counsel with the incorrect filing date
and drafted a thirty-two-page petition, which he submitted by the incorrect deadline. Id.
at 632. The supreme court also concluded that the petitioner “faced an extraordinary
combination of circumstances that prevented him from filing his post-conviction petition
on time-circumstances that were tantamount to attorney abandonment.” Id. The supreme
court based this conclusion on “the combination of [the petitioner]’s appellate lawyer’s
failures, including the misleading deadline and the retention of [the petitioner]’s files[]”;
however, the supreme court noted that “[n]one of the failures, standing alone, would be
sufficient[]” to rise to the level of attorney abandonment. Id. Therefore, the Tennessee
Supreme Court held that, in the petitioner’s case, “the principles of due process and
fundamental fairness require that the statute of limitations” in the Post-Conviction
Procedures Act be tolled. Id. at 634.

        The Petitioner’s circumstances can be distinguished from the petitioner’s
circumstances in Whitehead. The Petitioner does not allege that his appellate counsel
miscalculated the date for filing a post-conviction petition. He instead states that he did
not receive his case file until the deadline to file his Rule 11 application had passed.
However, he does not claim that he was unable to timely file his petition for post-
conviction relief because he still had not received his case file. The post-conviction court
noted that the Petitioner did not “address why he filed his request for post-conviction
relief outside the one-year statute of limitations period.” In any event, even if the
Petitioner had not received his case file by the deadline for filing his post-conviction
petition, the Petitioner could have timely filed his post-conviction petition before his case
file arrived and later amended the petition. See id. at 635 (Holder, J., dissenting). “No
pro se petition shall be dismissed for failure to follow the prescribed form until the court
has given petitioner a reasonable opportunity to amend the petition with the assistance of
counsel.” Tenn. Sup. Ct. R. 28, § 6(B)(4)(b). The Petitioner has failed to establish that
he was prohibited from timely filing his petition for post-conviction relief by
circumstances outside of his control. Because the petition is untimely and due process
considerations do not require tolling of the statute of limitations, the post-conviction
court properly dismissed the petition as time-barred.

                                      III. Conclusion

       For the aforementioned reasons, the judgment of the post-conviction court is
affirmed.

                                              ____________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE



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