        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs August 12, 2015

          TWAIN DEMARIO VAUGHN v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                    No. 2004-D-3057     Mark Fishburn, Judge


              No. M2014-01924-CCA-R3-PC – Filed November 12, 2015


A Davidson County jury convicted the Petitioner, Twain Demario Vaughn, of one count
of reckless homicide, one count of first-degree felony murder, one count of aggravated
robbery, and two counts of attempted aggravated robbery. The trial court merged the
reckless homicide conviction with the felony murder conviction and sentenced the
Petitioner to an effective sentence of life in prison. This Court affirmed his convictions
and sentence on appeal. State v. Twain Demario Vaughn, No. M2006-01659-CCA-R3-
CD, 2008 WL 110094, at *1 (Tenn. Crim. App., at Nashville, Jan. 9, 2008), no Tenn. R.
App. P. 11 application filed. The Petitioner filed a petition for post-conviction relief,
alleging that he had received the ineffective assistance of counsel. The post-conviction
court dismissed the petition as time barred. It then reversed its ruling, appointed counsel,
and held a hearing after which it dismissed the Petitioner’s petition. On appeal, the
Petitioner contends that the post-conviction court erred because his trial counsel was
ineffective for failing to: (1) introduce the victim’s toxicology report; (2) request more
time to review videotaped statements that called into question the eye witnesses’
credibility; and (3) have the Petitioner’s competency evaluated. After review, we
conclude that the Petitioner’s petition was not filed within the statute of limitations and
that he has not shown a statutory or due process ground for the tolling of the statute of
limitations. As such, we dismiss the petition as time barred.

               Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

ROBERT W. WEDEMEYER, J. delivered the opinion of the Court, in which NORMA MCGEE
OGLE and CAMILLE R. MCMULLEN, JJ. joined.

Loren E. Pardue, Nashville, Tennessee, for the appellant, Twain Demario Vaughn.

Herbert H. Slatery III, Attorney General and Reporter; Andrew C. Coulam, Assistant
Attorney General; Glenn Funk, District Attorney General; and Kathy Morante, Assistant
District Attorney General, for the appellee, State of Tennessee.
                                      OPINION
                                       I. Facts
                                       A. Trial

       This case arises from a robbery and shooting in Nashville. This Court summarized
the evidence presented against the Petitioner at trial as follows:

             Kandice Regina Smith testified she lived in North Carolina, and she
      came to Nashville in July 2004 to see her brother, Kris Carlyle, the victim,
      along with her mother, Kathy Smith, and her boyfriend, Paul Puckett. The
      night of July 7, 2004, the four of them drove around the city “sightseeing”
      in Smith’s mother’s two-door Chrysler Lebaron. Smith’s mother drove,
      Carlyle sat in the front passenger seat, Smith sat behind her mother, and
      Puckett sat behind Carlyle.

              Smith testified they found themselves lost, and they stopped because
      four young black men walked into the road. Carlyle rolled down his
      window to attempt to ask for directions, and the young men instructed them
      to pull off the road. They pulled the car into the parking lot of a vacant
      restaurant, and three of the young men walked up to the car. Smith testified
      that, suddenly, the fourth man “c[a]me out of nowhere and put a gun in the
      car and demanded our money.” Carlyle gave the man ten dollars. Smith
      described the gun as a dark revolver. Smith stated, “Then he pointed the
      gun at my boyfriend and asked him for his money and he told him he didn’t
      have any. Then he pointed the gun at me and asked me for my money and I
      told him I didn’t have any, and then he turned back and pointed the gun at
      my brother and shot him” once in the neck. The other three young men did
      not participate in the robbery or say anything to the passengers.

              The car sped away, and the group eventually found a hospital. The
      police arrived at the hospital where they discussed the situation. Later that
      night, the passengers and the police returned to the location of the shooting
      to search for evidence. Two days later, Smith met with Detective Coleman,
      who presented her with a photo lineup. She identified the [Petitioner] as
      the shooter from the pictures. Smith testified that none of the other three
      young men appeared to have a weapon.

             On cross-examination, Smith explained that they arrived at the
      vacant lot because they turned off the main road in order to ask directions.
      They first met Detective Coleman at the hospital, they took him to the
                                           2
crime scene, and they then went to the station to be interviewed. Smith
admitted that the shooter may have been wearing red, and, when pressed
about the shooter’s hair style, Smith stated, “you could braid it [–] it looked
like, it just wasn’t done.” Additionally, Smith told Detective Coleman
there appeared to be a young man with “cornrows” who first approached
the car.

        Paul Nelson Puckett, Jr., testified to the same background
information as Smith. Specifically, he stated they were driving on a “fairly
big road” towards downtown Nashville. As they were driving, there were
“[j]ust four people, just, basically, making their way across the road, and
we had to basically either stop or run over them.” Carlyle was going to ask
for directions, but the young men motioned for the car to pull off the road.
Puckett described everything as happening very quickly. There were four
young black men, and three of the young men walked up to Carlyle’s side
of the car. Then, the fourth man walked up and “put[ ] a gun through the
window and demand[ed] some money.” Carlyle gave the man ten dollars.
After getting money from Carlyle, the man demanded money from Puckett
and Smith, and he then turned and shot Carlyle.

       They sped off and ultimately found someone to lead them to a
hospital. Carlyle did not talk during the short trip to the hospital. Later,
Puckett met with Detective Coleman and reviewed photographs of
individuals in a line-up format. Puckett picked out two individuals, one
being the [Petitioner] and the other an unassociated individual. In court,
Puckett identified the [Petitioner] as the shooter.

        On cross-examination, Puckett explained he could not remember if
he told Detective Coleman that the [Petitioner] was the shooter when he
was interviewed. After reviewing a tape of the interview outside the
presence of the jury, Puckett admitted that he did not positively identify the
[Petitioner] as the shooter during the initial interview. In further
describing the shooter, Puckett stated that the shooter wore red, had
“cornrows,” was the tallest, and looked the oldest.             On redirect-
examination, Puckett stated that the [Petitioner’s] hair was different in
court than when he first identified the [Petitioner].

       Kathy Smith, the victim’s mother, testified that Carlyle was an
aspiring singer/songwriter living in the Nashville metropolitan area when
he was killed. On the night in question, the group was driving downtown
so Carlyle could sing and play his guitar. Kathy Smith stated that they
                                      3
found themselves lost and saw a “perfect opportunity to stop and ask for
directions” when they saw four young men in the road. Carlyle rolled
down his window when the young men motioned the car to pull off the road
to get out of traffic. Three of the young men approached the car and then
the fourth man approached. The first three did not appear to be armed, but
the fourth man pointed a revolver at Carlyle and demanded money. Carlyle
gave the man ten dollars, but the other occupants of the car did not have
any money. He then pointed the gun at Carlyle and shot once. Kathy
Smith testified that she could not identify the shooter because she could not
see his face from where she was sitting.

       Kathy Smith testified that they asked Carlyle if he had been hit, and,
when he turned, blood “gushed” from his mouth; he could not speak. They
found someone to lead them to the hospital, but Kathy Smith believed her
son died during the car ride to the hospital.

        On cross-examination, Kathy Smith testified that she did not recall
telling an officer at the hospital that the three young men approached the
car with “small plastic bags.” She stated that they were traveling
downtown for Carlyle to play his guitar on the corner for money. She also
again admitted that she could not identify the shooter.

       DeEarl Huddleston testified that he was seventeen years old and was
familiar with the First Avenue and Lafayette Street area in Nashville.
Huddleston stated that, on July 7, 2004, he was in that area with three
friends, Ja Marable, Ta Marable, and the [Petitioner]. They were walking
from Lafayette Street to their neighborhood when they saw the automobile
in which the victim was riding. Huddleston testified that they were about to
cross the street when the individuals “stopped and asked if we had any
drugs to sell them.” Huddleston did not recall specifically which person
asked for the drugs, but Huddleston asked them, “what kind of drugs?”
They said they did not care, and, because Huddleston had marijuana, the car
pulled into the Mr. Burger vacant parking lot. The individuals in the car
purchased marijuana from one of the other individuals, Ja Marable, and
Huddleston moved to walk away from the transaction.

       Huddleston testified that he heard the [Petitioner] say “set it out,” a
phrase that is commonly used in the context of a robbery. He then heard
the [Petitioner] fire a shot into the car. The four young men then ran from
the scene. Huddleston testified that the gun was a black .38 Special and
that neither he nor Ja Marable or Ta Marable had a weapon. They were not
                                      4
aware that the [Petitioner] was going to rob and shoot the passengers in the
car.

       Huddleston further testified that Rosalyn Blakely is his aunt, his
mother’s sister. Huddleston stated that, after the shooting, he went home
and discussed the situation with his mother and Blakely. They took
Huddleston to Detective Coleman the next day, and Huddleston gave the
detective the name “Ty” because he did not know the [Petitioner’s] real
name.

        On cross-examination, Huddleston admitted that he previously
testified that the [Petitioner] was wearing a black shirt. Huddleston also
admitted that he was selling drugs that night, and his mother made him go
to the police. Huddleston stated that he had convictions in juvenile court of
theft and attempted theft. When questioned about their relative heights,
Huddleston stated that he was the tallest, Ta Marable the second tallest,
then the [Petitioner], and Ja Marable the shortest. Huddleston admitted that
he had been friends with the Marable brothers for some time, and after the
shooting the three of them again met up that night to “hang out.”

       Officer Claude W. Mann testified that he was “working radar” at
Fourth and Lafayatte in Nashville when he stopped a truck. As he was
talking to the individuals in the truck, a woman, Rosalyn Blakely, who
Officer Mann knew from working the area, yelled at him. Blakely said that
she wanted to tell him about something that had been worrying her: she had
information about the shooting of the victim in this case. Officer Mann
called for a detective, Todd Watson, who arrived and talked with Blakely.

        Jacarlvis (“Ja”) Marable testified that he was thirteen years old. He
stated that he was with his brother, Ta, DeEarl Huddleston, and the
[Petitioner] the night of July 7, 2004. They were proceeding home when
they crossed Lafayette Avenue. A car stopped because the four of them
were in the road, and someone from the car yelled at them to move.
Someone from the car also asked the young men whether they had drugs,
and the car then pulled into the Mr. Burger parking lot. Huddleston and the
[Petitioner] first approached the car, but Ja Marable and Ta Marable did not
immediately approach the car because their cousin, Neecy Marable, called
to them. The route to Neecy Marable’s house took them past the car
stopped at the Mr. Burger. They stopped briefly at the car and saw
Huddleston hand the passengers marijuana.

                                     5
        Ja Marable then testified that he saw the [Petitioner] pull out a gun,
and he heard Huddleston say, “give me everything.” Marable said, “the car
tried to pull off, and the gunshot went off, I don’t know if the car hit the
gun and made the gunshot go off or he pulled the trigger or whatever, I
don’t know, it was either one.” Marable stated that he knew he and his
brother did not have a weapon, but he did not know whether Huddleston
had one. After the shooting, Marable and his brother went one direction
and Huddleston and the [Petitioner] went another. Marable testified he
spoke with Detective Coleman the next day. At that time, he was shown a
picture line-up, and Marable identified the [Petitioner] as the shooter.

       On cross-examination, Marable testified that the [Petitioner] was
wearing a black shirt. Marable’s brother, Ta, had his hair half braided, half
out, because “he was taking it down.” Marable affirmed that he did not sell
any drugs and that Huddleston was part of the robbery.

       Detective Hugh Coleman testified that he was first contacted about a
shooting around midnight on July 7, 2004. He responded to Centennial
Hospital where he found the victim already deceased. He interviewed the
other passengers in the early morning hours of July 8, and then,
accompanied by Paul Puckett and Kandice Smith, he found the crime
scene. The next day, July 9, 2004, a patrol officer was flagged down and
told of a witness, DeEarl Huddleston. After interviewing Huddleston, they
interviewed Ja Marable who identified the [Petitioner] from a picture line-
up. Next, Candace Smith also identified the [Petitioner] from a photo line-
up. Paul Puckett was shown a line-up, and he identified two possible
individuals, one being the [Petitioner]. Kathy Smith was unable to identify
anyone.

        Detective Coleman testified that the [Petitioner] and his parents
arrived at the criminal justice center in order to meet with him on July 9.
The [Petitioner’s] mother requested an attorney, so Detective Coleman did
not question him that night. Detective Coleman did talk with the
[Petitioner’s] mother about the process. At some point in the discussion,
Detective Coleman began to describe what he had heard about the incident.
Detective Coleman stated that the car pulled up and asked, “Do you have
anything for me?” Detective Coleman testified that the [Petitioner] then
sat up and excitedly said, “Yes, he did, that’s what he said.”

       Detective Coleman testified that he interviewed Ta Marable on July
12 but that he ultimately determined that none of the other three young men
                                      6
      would be charged with a crime. He believed that none of the three knew
      the [Petitioner] had a weapon or that they participated in the robbery.
      Detective Coleman admitted that he did not create a photo line-up with any
      of the other three young men in it. Detective Coleman stated that the police
      never recovered a weapon.

              On cross-examination, Detective Coleman testified that Paul Puckett
      told him, in his interview four hours after the shooting, that the shooter was
      the tallest of the group and wore a red shirt. Puckett also told Detective
      Coleman that the shooter had braids and the gun was black with a brown
      handle. Detective Coleman stated he did not prepare a line-up with pictures
      of individuals with braids because he did not have a picture of the
      [Petitioner] in braids. Additionally, he admitted he did not prepare a line-
      up for the victim’s family members with any of the other three young men
      in it. Although he was not totally sure, Detective Coleman agreed that Ja
      Marable was probably the shortest, and Huddleston and Ta Marable were
      the tallest of the group.

             Detective Coleman testified that, during the course of the
      investigation, he came across the name “Danesa Nelson” as the person to
      whose house the Marable brothers went after the shooting. Detective
      Coleman admitted he did not attempt to locate or interview Nelson.
      Detective Coleman testified that one could see the interstate from the Mr.
      Burger parking lot. He admitted that there was no physical evidence
      linking the [Petitioner] to the shooting, and the young men likely discussed
      the shooting at some point after it occurred.

             Dr. Staci Turner testified that she performed the autopsy on the
      victim in this case. The victim died from a gunshot wound that entered his
      neck and proceeded through his chest cavity, a normally fatal wound.
      Based on the nature of the wound, Dr. Turner stated that the gun was
      approximately one to three feet away from the victim when it was fired.
      Because Dr. Turner found blood in the victim’s lungs, she determined he
      lived a short time after he was shot.

            On cross-examination, Dr. Turner testified that it would be possible
      for gunshot residue to get on the shooter. From the angle of the entry
      wound, it appeared that the shooter was standing when the shot was fired.

Vaughn, 2008 WL 110094, at *1-5.

                                            7
        Based upon this evidence, the jury convicted the Petitioner of one count of
reckless homicide, one count of felony murder, one count of aggravated robbery, and two
counts of attempted aggravated robbery. The trial court merged the reckless homicide
conviction with the felony murder conviction, and the trial court sentenced the Petitioner
to life in prison for the felony murder conviction, with all the other sentences running
concurrently with that sentence. On appeal, this Court affirmed the Petitioner’s
convictions and sentence. Id. at *10.

                                    B. Post-Conviction

       The Petitioner filed a petition for post-conviction relief alleging that the
prosecution failed to disclose favorable evidence, namely video-taped interviews. He
further alleged that the trial court interfered with his right to present a defense by not
allowing him to introduce the victim’s toxicology. Finally, he asserted he received the
ineffective assistance of counsel because his trial counsel (“Counsel”) failed to promptly
interview the Petitioner or witnesses and failed to call witnesses favorable to his defense.
The post-conviction court initially dismissed the petition as time barred, but, after
reconsidering, the post-conviction court appointed the Petitioner an attorney, who filed an
amended petition. Relevant to this appeal, the amended petition alleged that Counsel was
ineffective because she failed to properly investigate the case or prepare for trial. The
amended petition further alleged that the Petitioner’s trial counsel failed to obtain and
review videotaped statements, and failed to investigate the case. The State filed a
response asking the post-conviction court to dismiss the petition as time-barred and
arguing that the petition was without merit.

       The post-conviction court held a hearing during which the following evidence was
presented: The Petitioner testified that he was convicted of this felony murder offense
when he was fifteen years old. He said that he had only completed the sixth grade in
school and that he did not understand the legal process at the time of his trial. The
Petitioner said that, around the time of his trial, he thought that he had a good relationship
with Counsel. He said, however, that Counsel only came to see him three or four times
during the time that he was incarcerated awaiting trial.

       The Petitioner testified that, two days before trial, the State offered to allow him to
plead guilty in exchange for a twenty-year sentence. The Petitioner said he did not
discuss this offer in depth with Counsel because he felt “like [he] was innocent.”

      The Petitioner said that Counsel did not ask him about his school history, his
academic background, and she did not have him mentally evaluated for any type of
diminished capacity. The Petitioner said that he did not know that he had the right to
review the discovery in his case, and he never reviewed the discovery before trial. He
                                              8
said that he and Counsel never discussed individuals named James Simpson, Bryan
Britton, Derrick Speller, Reggie Owens, “Cardell,” or a man whose nickname was
“Chicago.” The Petitioner said that his discussions with Counsel centered around his
transfer from juvenile court to criminal court where he would be tried as an adult.

       During cross-examination, the Petitioner testified that Counsel represented him
while this case was in juvenile court. He said that in juvenile court at the detention
hearing and at his transfer hearing, Ja Marable and another witness testified against him.
He agreed that their testimony at his trial comported with their previous testimony. The
Petitioner clarified that the State offered him a sentence of twenty years in exchange for a
guilty plea after his trial had already begun. He said that Counsel explained to him that
he would be required to serve seventeen or eighteen years, and he told her to decline the
State’s offer. He said he declined the offer because he was innocent.

       The Petitioner said that he heard the proof at trial that the three surviving
passengers in the car identified him as the man who had brandished a weapon, asked for
everyone’s money, and then shot the victim in the neck. The Petitioner conceded that
there were two additional witnesses who testified that they were with the Petitioner and
that he was the one who had robbed and killed the victim.

       The Petitioner contended that Counsel should have presented a “better argument.”
When asked what the jury should have been told that Counsel did not tell them, the
Petitioner responded “I don’t know.”

       Upon questioning by the post-conviction court, the Petitioner testified that
Counsel informed him that if he did not accept the twenty-year plea offer he potentially
faced a life sentence in prison.

       Counsel testified that she represented the Petitioner at the juvenile preliminary
hearing and also at the transfer hearing. Counsel said that she received several tape
recordings of interviews shortly before trial. She said that the recordings were from
interviews of witnesses to the robbery and shooting. Counsel said that she filed a motion
for new trial on the basis that the State had committed a Brady violation by not disclosing
them sooner, and the Petitioner’s case was appealed on this issue. Counsel said that the
Court of Criminal Appeals did not reverse on this ground, but she still felt that the late-
received discovery prejudiced her representation of the Petitioner.

        Counsel said that she was familiar with the Petitioner’s school history. He had
been expelled from public school and placed in an alternative school. His enrollment was
later terminated from the alternative school for excessive absences. Counsel said that she

                                             9
believed that she had the Petitioner’s competency evaluated in juvenile court, which was
why she did not have him re-evaluated in adult criminal court.

        Counsel testified that she had an investigator appointed to assist her in
representing the Petitioner. The investigator located witnesses and took video recordings
and photographs of the scene. Counsel said that the investigator investigated all of the
witnesses interviewed by the police, including a prostitute who said that a “James
Simpson” had something to do with this murder. Some of the witnesses were difficult to
find, including a “Reggie Owens” who was in Chicago. The investigator was unable to
speak with Mr. Owens.

       Counsel said that she did not call any witnesses on the Petitioner’s behalf.
Counsel said that two of the State’s witnesses, Ja Marabel and Ta Marabel, were brothers
and that they knew each other better than they knew the Petitioner. She did not, however,
interview them personally before trial, relying instead on their testimony from the
juvenile transfer hearing.

        Counsel said she explained the State’s offer to the Petitioner. She said that he was
only fifteen years old at the time and that she was concerned that he could not appreciate
the difference between twenty years and life in prison.

       During cross-examination, Counsel testified that she had been an attorney for
thirteen years and that she had represented clients in juvenile court before when she
worked for the public defender’s office. She was in private practice at the time that she
represented the Petitioner. Counsel said that another attorney, Jeff Powell, assisted her in
trying the case but that she was lead counsel. Counsel recalled that she met with the
Petitioner “a lot.” She said that it was more than three or four times.

       Counsel said that she and the Petitioner always had a “good relationship.” She
said that the Petitioner knew the testimony the State intended to present at trial because
he had attended the juvenile transfer hearing where those witnesses testified. Counsel
said that she did not think that the Petitioner had a competency issue. She said she could
discuss the case and the consequences of a conviction with him. She saw no indication
that he was insane.

       Counsel said that the Petitioner had always maintained his innocence.

       Counsel testified about the video recordings that she did not receive until shortly
before trial. She said that the State took the position that the recordings were not Brady
material but were Jencks material, so the State was not obligated to provide the
recordings until trial. This Court, on appeal, held that the recordings were not Brady
                                            10
material. The Court also stated that Counsel had thoroughly cross-examined the
witnesses about the statements contained in the recordings.

       On redirect examination, Counsel testified that her theory of defense was that the
Petitioner did not have the gun and, therefore, could not have pulled the trigger. She
chose to convey that theory through cross-examination of the State’s witnesses.

       Based upon this evidence, the post-conviction court dismissed the petition. In its
written order, the post-conviction court found the following:

              A review [of] the record in this case leads the court to conclude that
      the Petitioner is unable to establish either prong necessary to the granting of
      post-conviction relief. Although the [the Petitioner] alludes to his youth as
      reason[ ] to suggest that [Counsel] was deficient, he presents no evidence
      that his youth in any manner hampered him in understanding the nature of
      the proceedings against [him] or his ability to effectively communicate with
      [C]ounsel. In fact, both he and [Counsel] agree that they were able to
      communicate throughout the pendency of the case. The only dispute
      centered on the limited amount of information communicated, not the
      inability to comprehend the import of what was being communicated. The
      court accepts the testimony of [Counsel] that she fully discussed with [the
      Petitioner] the contents of discovery and the strategy that would be
      employed at trial and which was mutually agreed upon. Finally, [the]
      Petitioner failed to present any evidence suggesting he suffered from any
      mental or emotional deficiency that would support a claim of
      incompetency, insanity or diminished capacity. Therefore, he has failed to
      meet his burden on this issue since the court is not allowed to speculate as
      to what the results of a forensic evaluation may have shown. See generally
      Black v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).

             Likewise, Petitioner has presented no evidence that [Counsel] was
      deficient in her performance for failing to obtain the services of an
      eyewitness identification expert or that the services of such an expert would
      have resulted in a different outcome. Moreover, the law in Tennessee at the
      time of the trial of this case did not allowed for State funds to retain the
      services of such an expert. See State v, Coley, 32 S.W.3d 831 (Tenn.
      2000). It was not until 2007 that the Supreme Court reversed Coley. See
      State v. Copeland, 226 S.W.3d 287 (Tenn. 2007).

             The court accredits the testimony of [Counsel] that she was prepared
      to cross examine . . . any of the three (3) persons with [the Petitioner] at the
                                            11
      time of the incident and that she, through her investigator, was unable to
      develop anyone else as a viable suspect. As to the first issue, [the]
      Petitioner suggests nothing in the testimony of his cohorts that was a
      surprise. He does not suggest there was any[] line of attack that [Counsel]
      might have employed in cross examination that was not pursued. He
      simply offers nothing to show what [Counsel] failed to do in questioning
      these eyewitnesses. Similarly, the Petitioner offers nothing to support his
      implication that there were other viable suspects who could have committed
      these crimes. [Counsel] and her investigator attempted to pursue this
      avenue, but could not locate any of them or develop any reliable evidence
      to tie any of them to the crimes. [The] Petitioner has done nothing to
      advance this proposition either.

             Finally, although the court inexplicabl[y] overruled itself by finding
      the statute of limitations was not applicable, the court cannot find any
      factual basis to support this reversal from its initial position. It is the
      court’s thoughts that the reversal was intended to allow the attorney to
      investigate whether there was due process grounds to suspend the
      application of the limitations period not to actually find that the limitations
      period should be suspended. It is only for the confusion created by the
      court that the court has considered the merits of [the] Petitioner’s claim.

             Based on the foregoing, the court finds that each of the grounds
      raised in support of [the] Petitioner’s claim of ineffective assistance of
      counsel is without merit and should be DENIED.

      It is from that judgment that he now appeals.

                                       II. Analysis

       On appeal, the Petitioner contends that the post-conviction court erred when it
dismissed his petition because his trial counsel was ineffective for failing to: (1)
introduce the victim’s toxicology report; (2) request more time to review some
videotaped statements that called into question the eye witnesses’ credibility; and (3)
have the Petitioner’s competency evaluated. The State contends that these arguments are
either waived or meritless or both.

       In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
right. T.C.A. § 40-30-103 (2014). A petition for post-conviction relief must be filed
within one year of the date on which the judgment became final if no direct appeal was
                                            12
taken. T.C.A. § 40-30-102 (a). Our Legislature emphasized the fact that “[t]ime is of the
essence of the right to file a petition for post-conviction relief,” and provided only three
narrow exceptions to the statute of limitations: (1) a new constitutional right with
retrospective application; (2) new scientific evidence establishing actual innocence; and
(3) the invalidation of convictions underlying an enhanced sentence. T.C.A. § 40-30-102
(b).


       The constitutional right to due process, however, may necessitate tolling the
statute of limitations in certain circumstances outside of the enumerated statutory
exceptions. See Seals v. State, 23 S.W.3d 272 (Tenn. 2000); Burford v. State, 845
S.W.2d 204 (Tenn. 1992). Our Supreme Court has held:


       [B]efore a state may terminate a claim for failure to comply with procedural
       requirements such as statutes of limitations, due process requires that a
       potential litigant be provided an opportunity for “presentation of claims at a
       meaningful time and in a meaningful manner.” The test is “whether the
       time period provides an applicant a reasonable opportunity to have the
       claimed issue heard and determined.”


Seals, 23 S.W.3d at 277-78 (quoting Burford, 845 S.W.2d at 207). “[A] post-conviction
petitioner is entitled to due process tolling of the one-year statute of limitations 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.” Bush v.
State, 428 S.W.3d 1, 22 (Tenn. 2014) (citing Whitehead v. State, 402 S.W.3d 615, 631
(Tenn. 2013)). Thus far, our Supreme Court has identified only three instances in which
due process requires tolling of the post-conviction statute of limitations: (1) where the
basis for post-conviction relief arises after the statute of limitations has expired; (2)
where a petitioner’s mental incompetence prevented compliance with the statute of
limitations; and (3) where attorney misconduct prevents compliance with the statute of
limitations. Whitehead, 402 S.W.3d at 623-24 (Tenn. 2013). “Whether due process
considerations require tolling of a statute of limitations is a mixed question of law and
fact, which we review de novo with no presumption of correctness.” Smith v. State, 357
S.W.3d 322, 355 (Tenn. 2011) (quoting Harris v. State, 301 S.W.3d 141, 145 (Tenn.
2010)).


      In this case, the conviction became final thirty days after the Defendant’s
convictions were affirmed on appeal, January 9, 2008. The Petitioner did not file his
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petition until April 7, 2009, almost two months past the one year statute of limitations
period.


        A post-conviction petitioner must prove compliance with the statute of limitations
to be entitled to post-conviction relief because the post-conviction statute of limitations is
a jurisdictional requirement for the courts of Tennessee. See T.C.A. § 40-30-102 (a)
(“[T]he one-year limitations period is an element of the right to file the [post-conviction]
action and is a condition upon its exercise.”); T.C.A. § 40-30-102 (b) (“No court shall
have jurisdiction to consider a petition filed after the expiration of the limitations period .
. . .”); Tenn. Sup.Ct. R. 28, § 4(B); Nix, 40 S.W.3d at 464 (noting that “the one-year
statutory period is an element of the right to file a post-conviction petition and . . . it is
not an affirmative defense that must be asserted by the State”). Indeed, because failure to
comply with the statute of limitations precludes jurisdiction, courts have a duty to ensure
that the post-conviction statute of limitations is satisfied and must dismiss a post-
conviction petition on this basis sua sponte if necessary. T.C.A. § 40-30-106 (b) (“If it
plainly appears . . . 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
Petitioner has not offered any due process basis for tolling the statute of limitations, and
we see none. As such, we are constrained to dismiss the Petitioner’s petition for post-
conviction relief.


                                      III. Conclusion

      In accordance with the aforementioned reasoning and authorities, the appeal is
dismissed.

                                                   _________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE




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