         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs August 5, 2008

              ARTIS WHITEHEAD v. STATE OF TENNESSEE
                      Appeal from the Criminal Court for Shelby County
                        No. 03-04835 James C. Beasley, Jr., Judge



                   No. W2008-00815-CCA-R3-PC - Filed March 19, 2009



The petitioner, Artis Whitehead, appeals the Shelby County Criminal Court’s order summarily
dismissing as untimely his petition for post-conviction relief. On appeal, the petitioner argues that
his petition for certiorari to the United States Supreme Court tolled the one-year limitations period
for filing a post-conviction petition, and because his petition was filed within one year of the
Supreme Court’s order denying certiorari, his post-conviction petition was timely. The petitioner
also argues that because counsel incorrectly informed him that the deadline for filing his post-
conviction petition was one year after the Supreme Court denied certiorari, due process requires the
tolling of the one-year limitations period. After reviewing the record, we conclude that while the
petition was untimely, further development of the record is necessary to determine whether counsel’s
advice regarding the limitations period constituted “misrepresentation, either attributable to
deception or other misconduct,” see Williams v. State, 44 S.W.3d 464, 469 (Tenn. 2001), that
necessitated due process-based tolling of the limitations period. As such, we reverse the judgment
of the post-conviction court and remand the case for an evidentiary hearing.


  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed; Case
                                       Remanded.


D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which THOMAS T. WOODALL and
NORMA MCGEE OGLE , JJ., joined.

Artis Whitehead, Whiteville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Amy Weirich and Theresa McCusker, Assistant
District Attorneys General, for the appellee, State of Tennessee.


                                            OPINION
        The record reflects that the defendant was convicted of five counts of especially aggravated
kidnapping, two counts of aggravated assault, two counts of aggravated robbery, two counts of
especially aggravated robbery, and one count of attempted aggravated robbery. State v. Artis
Whitehead, No. W2004-03058-CCA-R3-CD, 2006 WL 1273749, at *1 (Tenn. Crim. App. May 10,
2006), perm. app. denied, (Tenn. Oct. 16, 2006), cert denied sub. nom. Whitehead v. Tennessee, 127
S. Ct. 1492 (2007). The defendant received an effective sentence of 249 years in the Department
of Correction. Id. This court affirmed the defendant’s convictions and sentences on appeal. Id. The
Tennessee Supreme Court denied the defendant’s application for permission to appeal on October
16, 2006. On January 16, 2007, the petitioner filed a petitioner for certiorari in the United States
Supreme Court, which denied the petition on March 5, 2007.

        On March 3, 2008, the petitioner lodged a petition for post-conviction relief with prison
authorities.1 In the petition, he asserted that: (1) the trial court abused its discretion by compelling
him to testify at trial; (2) the trial court’s failure to merge his aggravated assault and kidnapping
conviction constituted double jeopardy; (3) his especially aggravated kidnapping convictions
violated his due process rights “because the kindapping was essentially incidental to the
accompanying especially aggravated robbery convictions”; (4) the state’s closing argument
constituted prosecutorial misconduct; (5) his effective 249-year sentence violated his rights under
the Sixth Amendment; (7) the state “failed to comply with the statutory requirement of expressly
notifying Petitioner regarding his intention to seek enhanced punishment based on prior
convictions”; and (8) he received the ineffective assistance of counsel at trial and during the
sentencing hearing.2

        The post-conviction court received the petition on March 19, 2008. On March 25, 2008, the
post-conviction court summarily dismissed the petition as untimely, finding that the petitioner’s
application for certiorari to the United States Supreme Court did not toll the one-year limitations
period for filing a post-conviction petition. The petitioner subsequently filed a timely notice of
appeal.

                                                       ANALYSIS

       Tennessee’s Post-Conviction Procedure Act provides that a claim for post-conviction relief
must be filed “within one (1) year of the date of the final action of the highest state appellate court
to which appeal is taken or, if no appeal is taken, within one (1) year of the date on which the


         1
           The Tennessee Rules of Post-Conviction Procedure, codified at Rule 28 of the Rules of the Supreme Court
of Tennessee, provide that if the clerk of the post-conviction court does not receive “papers required or permitted to be
filed by these rules . . . until after the time fixed for filing, filing shall be timely if the papers were delivered to the
appropriate individual at the correctional facility within the time fixed for filing.” Tenn. Sup. Ct. R. 28, § (2)(G). In this
case, the petitioner attested that he submitted his petition to “Officials in the Mail Room here at Hardeman County
Correctional Facility” on March 3, 2008.

         2
         The petitioner was represented by one attorney at trial; this attorney was replaced by two different attorneys,
who represented the petitioner at the sentencing hearing and on appeal.

                                                              2
judgment became final, or consideration of such petition shall be barred.” Tenn. Code Ann. § 40-30-
102(a) (2006). “As a general rule, a trial court’s judgment becomes final thirty days after its entry
unless a timely notice of appeal or a specified post-trial motion is filed.” State v. Pendergrass, 937
S.W.2d 834, 837 (Tenn. 1996) (citing Tenn. R. App. 4(a) and (c)).

        There are few exceptions to this limitations period. The Post-Conviction Procedure Act
provides that a petition may be filed beyond the expiration of the one-year limitations period if the
otherwise untimely claim (1) is based on a constitutional right that did not exist at trial, (2) is based
on new scientific evidence, or (3) seeks relief from a sentence that was enhanced because of a
previous conviction that was later held to be invalid. Tenn. Code Ann. § 40-30-102(b)(1)-(3). None
of these statutory exceptions apply in this case. Furthermore, this court has held that “due process
does not require tolling the statute of limitations while a petition for certiorari is pending before the
United States Supreme Court.” John Haws Burrell v. State, No. E1999-02762-CCA-R3-PC, 2001
WL 15792, at *2 (Tenn. Crim. App. Jan. 8, 2001); see also Chesley Randell Thompson v. State, No.
E2002-00580-CCA-R3-PC, 2003 WL 21276129, at *2 (Tenn. Crim. App. June 3, 2003). Thus, the
statute of limitations in the present case began to run on October 16, 2006, when the Tennessee
Supreme Court denied the petitioner’s application for permission to appeal. Because the petitioner
filed his petition for post-conviction relief nearly five months after the October 2007 expiration of
the limitations period, we conclude, as did the post-conviction court, that the petition was untimely.

        However, the one-year limitations period for filing a post-conviction petition may be tolled
based on due process concerns, which dictate that strict application of the statute of limitations may
not deny a petitioner a reasonable opportunity to assert a claim in a meaningful time and manner
when the failure to file in a timely manner is due to circumstances beyond a petitioner’s control.
State v. McKnight, 51 S.W.3d 559, 563 (Tenn. 2001); Williams v. State, 44 S.W.3d 464 (Tenn.
2001); Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995). This court has held that one such
circumstance would be the petitioner’s mental incompetence throughout the limitations period. See
Alvin L. Smith v. State, No. 01C01-9808-CC-00343, 1999 WL 810229, at **1-2 (Tenn. Crim. App.
Oct. 12, 1999). Additionally, our supreme court has noted that “an attorney’s misrepresentation,
either attributable to deception or other misconduct, would also be beyond a defendant’s control.”
Williams, 44 S.W.3d at 469.

        In this case, the petitioner’s argument that due process concerns necessitate the tolling of the
statute of limitations is based largely on his assertion that he was misled by his former attorneys.
In support of this assertion, the petitioner attaches to his brief an August 3, 2007 letter from one of
the attorneys who represented the petitioner at the sentencing hearing and on appeal. In the letter,
counsel notes that the petitioner’s file had been closed, counsel no longer represented the petitioner,
and that based upon the United States Supreme Court’s denial of certiorari, any post-conviction
petition would need to be filed by March 5, 2008.3 In response, the State argues that “the letter does

         3
         Generally, documents attached to an appellate brief but not included in the record on appeal cannot be
considered by this court as part of the record on appeal. See State v. Jamie Lee Pittman, No. E2001-00546-CCA-R3-PC,
2002 W L 407226, at *1 (Tenn. Crim. App. Mar. 15, 2002) (citing State v. Matthews, 805 S.W .2d 776, 783-84 (Tenn.
Crim. App. 1990)). W hile the preferred procedure would have been for the petitioner to file a motion to supplement the

                                                          3
not justify due process tolling because it was mailed five months after the denial of the [petitioner]’s
writ of certiorari and clearly stated that counsel no longer represented the [petitioner], resulting in
the conclusion that at the time of the letter, the defendant was representing himself . . . .” The State
adds that the petitioner “asserts no argument that during this five month period when he was not
represented by counsel . . . he was misled as to when his post-conviction was due, nor for that matter
does he assert that he was ever misled during the pendency of his writ of certiorari.”

        The petitioner cites to Williams in support of his assertion that counsel’s inaccurate
information regarding the deadline for his post-conviction petition gave rise to due process concerns
which necessitated tolling the limitations period. Williams involved a defendant who claimed that
his attorney at trial and on appeal to this court failed to communicate regarding the filing of a Rule
11 application for permission to appeal to the Tennessee Supreme Court. Williams, 44 S.W.3d at
465-66. The defendant’s Rule 11 application and post-conviction opinion were both filed beyond
the respective limitations periods. Id. at 466-67. While the post-conviction petition was untimely,
the post-conviction court appointed counsel and scheduled an evidentiary hearing; however, after
two separate post-conviction attorneys withdrew, the defendant was granted his request to proceed
pro se. Id. at 466. At the evidentiary hearing, the defendant did not present evidence, citing a lack
of discovery and the absence of witnesses he had subpoenaed. Id. at 467. The post-conviction court
dismissed the petition. Id. On appeal, this court remanded the case to the post-conviction court “for
a hearing ‘initially to address the circumstances of the petitioner’s direct appeal, of the application
for permission to appeal, and of trial counsel’s relationship to the application—as all relate to the
issue of the statute of limitations.’” Id. The Tennessee Supreme Court affirmed this court’s decision
on appeal. Id. at 471-72. In doing so, the court stated that“an attorney’s misrepresentation, either
attributable to deception or other misconduct, would also be beyond a defendant’s control.” Id. at
469 (emphasis added). However, the court also noted that its opinion in Williams did “not hold[]
that a petitioner may be excused from filing an untimely postconviction petition as a result of
counsel’s negligence.” Id. at 468 n.7 (emphasis added).

        As the State notes in its brief, the facts of the instant case can be distinguished from those
in Williams. Unlike the petitioner in Williams, the petitioner in the instant case was represented by
counsel throughout his direct appeal. However, the concerns regarding the statute of limitations and
the possible misrepresentation of counsel are present in both cases. Counsel’s advice to the
petitioner regarding the deadline for filing his post-conviction was clearly incorrect; if such actions
constituted “misrepresentation, either attributable to deception or other misconduct” on counsel’s
part, counsel’s actions may well have denied the petitioner the reasonable opportunity to seek post-
conviction relief. Further development of the record is necessary to determine whether counsel’s
actions rose to the level of misrepresentation, requiring due process-based tolling of the limitations
period. If counsel’s actions were simply negligent, such tolling would not be necessary.
Accordingly, we remand this petition to the post-conviction court for an evidentiary hearing. As the
supreme court noted in Williams, the scope of the evidentiary appeal is limited



record, we will liberally construe the filings of this pro se petitioner and take judicial notice of the letter.

                                                              4
        to determin[ing] (1) whether due process tolled the statute of limitations so as to give
        the [petitioner] a reasonable opportunity after the expiration of the limitations period
        to present his claim in a meaningful time and manner; and (2) if so, whether the
        [petitioner’s] filing of the post-conviction petition in [March 2008] was within the
        reasonable opportunity afforded by the due process tolling.

Id. at 471.

                                           CONCLUSION

         In consideration of the foregoing and the record as a whole, the judgment of the post-
conviction court is reversed and the case remanded for an evidentiary hearing, the scope of which
is detailed in this opinion.


                                                               _______________________________
                                                               D. KELLY THOMAS, JR., JUDGE




                                                   5
