        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                  Assigned on Briefs October 21, 2014 at Knoxville

               CARL RENEE BROWN v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
            Nos. 8606424, 8606425, 8606426    James T. Lammey, Judge


              No. W2013-02774-CCA-R3-PC - Filed November 26, 2014


The petitioner, Carl Renee Brown, appeals pro se from the summary dismissal of his 2013
petition for post-conviction relief, which challenged his 1987 convictions of criminal attempt
to sell cocaine pursuant to Tennessee Code Annotated section 39-6-417 (1982) (repealed
1989). Because the petition was filed decades beyond the applicable statute of limitations
and because the petitioner failed to either allege or prove a statutory exception to the timely
filing or a due process tolling of the statute of limitations, we affirm the judgment of the
post-conviction court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which D. K ELLY
T HOMAS, J R., and R OBERT L. H OLLOWAY, J R., JJ., joined.

Carl Renee Brown, Memphis, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Glen Baity, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

               On June 19, 1987, the petitioner entered pleas of guilty to two counts of
attempt to sell cocaine, and the trial court imposed an effective sentence of three years. The
petitioner did not appeal either the convictions or the sentence. On April 9, 2008, more than
20 years after the judgments in his case became final, the petitioner filed a petition for post-
conviction relief, alleging, inter alia, that his guilty pleas were not knowingly or voluntarily
entered. On September 17, 2013, the petitioner filed a second petition for post-conviction
relief, alleging “factual innocence” and due process considerations. The post-conviction
court summarily dismissed the petition, deeming it time barred. In its order of dismissal, the
post-conviction court also stated that it “appear[ed] . . . that on May 12, 2008, this Court
dismissed a Petition for Post Conviction Relief filed by the Petitioner because it had been
filed beyond the applicable one-year statute of limitations” and that the original petition had
“been resolved on the merits.”

                On appeal, the petitioner challenges the summary dismissal of his 2013
petition, contending that neither the trial court nor trial counsel advised him of his right to
appeal or his right to the appointment of appellate counsel. In addition, the petitioner asserts
that his guilty pleas were not knowingly and intelligently entered and that “newly presented
evidence” in the form of the transcript of his plea proceedings evinces the involuntary nature
of his guilty pleas. The State argues that the petition at issue was not timely filed.

                 “[A] person in custody . . . must petition for post-conviction relief . . . within
one (1) year of the date of the final action of the highest state appellate court to which an
appeal is taken.” T.C.A. § 40-30-102(a) (2006). “If it plainly appears from the face of the
petition, . . . that the petition was not filed . . . within the time set forth in the statute of
limitations, . . . the judge shall enter an order dismissing the petition. The order shall state
the reason for the dismissal and the facts requiring dismissal.” Id. § 40-30-106(b). The
statute of limitations for filing a post-conviction petition is jurisdictional. See id. § 40-30-
102(b) (“No court shall have jurisdiction to consider a petition filed after the expiration of
the limitations period unless [certain statutory prerequisites are met].”). Our supreme court
has held that “the one-year statutory period is an element of the right to file a post-conviction
petition and that it is not an affirmative defense that must be asserted by the State.” State v.
Nix, 40 S.W.3d 459, 464 (Tenn. 2001). Thus, “it is incumbent upon a petitioner to include
allegations of fact in the petition establishing either timely filing or tolling of the statutory
period,” and the “[f]ailure to include sufficient factual allegations of either compliance with
the statute or [circumstances] requiring tolling will result in dismissal.” Id.

              A petition for post-conviction relief filed outside the one-year statute of
limitations may nevertheless be considered if its allegations fall within three rather narrow
exceptions:


               (1) The 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. Such petition must be filed
               within one (1) year of the ruling of the highest state appellate
               court or the United States supreme court establishing a


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               constitutional right that was not recognized as existing at the
               time of trial;

               (2) The claim in the petition is based upon new scientific
               evidence establishing that such petitioner is actually innocent of
               the offense or offenses for which the petitioner was convicted;
               or

               (3) The claim asserted in the petition seeks relief from a
               sentence that was enhanced because of a previous conviction
               and such 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, in which
               case the petition must be filed within one (1) year of the finality
               of the ruling holding the previous conviction to be invalid.


T.C.A. § 40-30-102(b)(1)-(3). Additionally, due process principles may, in very limited
circumstances, require tolling of the post-conviction statute of limitations. See generally
Seals v. State, 23 S.W.3d 272 (Tenn. 2000); Burford v. State, 845 S.W.2d 204 (Tenn. 1992).
To determine whether due process requires tolling of the statute of limitations, we must
determine “when the limitations period would normally have begun to run”; “whether the
grounds for relief actually arose after the limitations period would normally have
commenced”; and “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).

               In the instant case, the petitioner challenged his 1987 convictions via a post-
conviction petition filed in 2013, decades after the judgments became final. The statutory
grounds for the tolling of the statute of limitations are not applicable. Moreover, due process
principles do not mandate the tolling of the statute of limitations because the petitioner’s
claims for relief, involuntary pleas and failure to advise him of his right to appeal, are not
“later-arising.” The “newly presented evidence” the petitioner relies upon is the transcript
of the guilty plea proceedings dated June 19, 1987. Nothing indicates the petitioner needed
additional time to reasonably be able to assert these claims. Finally, it appears that the instant
petition is the second petition for post-conviction relief filed by the petitioner. The post-
conviction court indicated that the first petition was dismissed on the merits, which would
have precluded the filing of a second petition. See T.C.A. § 40-30-102(c) (“In no event may
more than one (1) petition for post-conviction relief be filed attacking a single judgment. If


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a prior petition has been filed which was resolved on the merits by a court of competent
jurisdiction, any second or subsequent petition shall be summarily dismissed.”) Although
the petitioner claims that he “withdrew” the original petition for post-conviction relief, he
provides no proof of this claim.


              Accordingly, the judgment of the post-conviction court is affirmed.


                                                   _________________________________
                                                   JAMES CURWOOD WITT, JR., JUDGE




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