        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs October 8, 2013

               JUAN LA SEAN PERRY v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Maury County
                     No. 13103    Robert Lee Holloway, Jr., Judge


                No. M2013-00986-CCA-R3-PC              Filed October 24, 2013


A Maury County jury convicted the petitioner, Juan La Sean Perry, of second degree murder
in November 2005, and the trial court sentenced him to twenty-five years in the department
of correction. This court affirmed his conviction and sentence. See State v. Juan La Sean
Perry, No. M2007-00903-CCA-R3-CD, 2008 WL 1875165, at *1 (Tenn. Crim. App. Apr.
28, 2008), no perm. app. filed. Nearly five years later, petitioner filed the instant petition for
post-conviction relief, which the post-conviction court dismissed as untimely. On appeal,
petitioner contends that due process principles should toll the statute of limitations and
requests that this court remand for an evidentiary hearing. Following our review, we affirm
the circuit court’s summary dismissal of the post-conviction petition.

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

R OGER A. P AGE, J., delivered the opinion of the court, in which J AMES C URWOOD W ITT, J R.,
and R OBERT W. W EDEMEYER, JJ., joined.

Juan La Sean Perry, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Attorney General and Reporter; Brent C. Cherry, Assistant Attorney
General; and Mike Bottoms, District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

       Petitioner was convicted of second degree murder for the April 29, 2002 shooting
death of Joey Williams. See id. He appealed his conviction and sentence to this court, which
affirmed the judgment of the trial court. See id. Petitioner did not request supreme court
review. This court’s opinion was filed on April 28, 2008, and the mandate issued July 22,
2008.
       Petitioner filed the instant petition for post-conviction relief on February 28, 2013.
In the petition, he argued that due process principles should toll the statute of limitations
because he believed that his attorney had sought permission to appeal to the supreme court.
He also presented a claim of ineffective assistance of counsel. The post-conviction court
summarily dismissed his petition as untimely.

        On appeal, petitioner argues that he did not know until January 2013 that his attorney
had not presented his case to the supreme court. He asserts that this court should remand his
case for an evidentiary hearing to determine whether due process concerns should toll the
statute of limitations for the filing of post-conviction petitions. The State responds that
“petitioner failed to make allegations to the court sufficient to warrant” tolling of the statute
of limitations. We agree with the State.

        A person convicted of a crime must petition for post-conviction relief within one year
of the final action of the highest state court that has considered the claim. Tenn. Code Ann.
§ 40-30-102(a). Time is of the essence when asserting a claim for post-conviction relief, and
a petitioner’s compliance with the statute of limitations is an element of the right to file a
petition. See id. § 40-30-102(b). A petition for post-conviction relief must include facts that
demonstrate timely filing or justification for tolling the statute of limitations period. See
State v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001). A petitioner’s failure to include sufficient
factual allegations of either compliance with the statute or circumstances that require the
court to toll the statute will result in dismissal. Id. However, pursuant to Tennessee Code
Annotated section 40-30-102(b)(1)-(3), this court may consider a petition for post-conviction
relief filed outside the one-year statute of limitations if the petitioner’s claim (1) is based
upon a final ruling of an appellate court establishing a new constitutional right; (2) is based
upon new scientific evidence establishing that petitioner is actually innocent; or (3) seeks
relief from a sentence that was enhanced because of a prior conviction that was found to be
invalid.

        In addition to the exceptions above, this court will also consider an untimely petition
if due process considerations require tolling of the post-conviction statute of limitations. See
Whitehead v. State, 402 S.W.3d 615, 622-23 (Tenn. 2013); Seals v. State, 23 S.W.3d 272,
278-79 (Tenn. 2000); Burford v. State, 845 S.W.2d 204, 210 (Tenn. 1992). “To determine
if due process requires the tolling of the statute of limitations, a court must weigh the
petitioner’s interest in having an opportunity to present his claims in a meaningful time and
manner against the state’s interest in preventing the litigation of stale and fraudulent claims.”
Gerald Wayne Carter v. State, No. W2008-00652-CCA-R3-PC, 2008 WL 4922710, at *2
(Tenn. Crim. App. Nov. 13, 2008) (citing Burford, 845 S.W.2d at 208). Recently, the
Tennessee Supreme Court clarified its earlier holdings with regard to due process tolling
based on the conduct of a petitioner’s attorney, ruling in Whitehead that “[a] petitioner is

                                               -2-
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, 402 S.W.3d at 631. The supreme court further opined
that “the second prong is met when the prisoner’s attorney of record abandons the prisoner
or acts in a way directly adverse to the prisoner’s interests, such as by actively lying or
otherwise misleading the prisoner to believe things about his or her case that are not true.”
Id. The supreme court noted that the “slight adjustment in our jurisprudence” should not
“open the floodgates of due process tolling” because the threshold showing remains high and
because the “General Assembly has expressed its clear intention that the post-conviction
filing deadline be construed as strictly as possible.” Id. at 631-32.

        In this case, petitioner made allegations in his petition that due process considerations
should toll the statute of limitations in his case because he believed that his attorney had
appealed his case to the Tennessee Supreme Court when, in fact, his attorney did not file for
permission to appeal. Furthermore, he alleges on appeal that he did not know that this appeal
had not been pursued until he requested a case history from this court, which was printed on
January 18, 2013. If petitioner believed that his case was pending before the supreme court,
then he was precluded from acting pro se to file a post-conviction petition while still being
apparently represented by counsel. See Williams v. State, 44 S.W.3d 464, 471 (Tenn. 2001)
(Appellant alleged that his post-conviction petition was untimely because he believed his
attorney was pursuing an appeal; the supreme court remanded for an evidentiary hearing to
develop the record.). However, petitioner has made no representations suggesting that he has
been diligently pursuing his rights, as required by the first prong of the Whitehead analysis.
See Whitehead, 402 S.W.3d at 631. Rather, he waited nearly five years before inquiring into
the status of his case, and there is no indication that he did anything to further his interests
in the meantime. Furthermore, he has made no allegations that his attorney abandoned him,
acted adversely to his interests, or behaved in any manner that could be construed as an
extraordinary circumstance preventing petitioner from timely filing his petition for post-
conviction relief. See id. He merely states that he “thought” his attorney was filing an appeal
to the supreme court. Thus, we conclude that petitioner’s argument regarding due process
tolling is without merit.

                                       CONCLUSION

      Based on the record, the parties’ briefs, and the applicable law, we affirm the
judgment of the post-conviction court.

                                                     _________________________________
                                                     ROGER A. PAGE, JUDGE



                                               -3-
