             IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                 Assigned on Briefs October 25, 2005

                     JASON EARL HILL v. STATE OF TENNESSEE

                       Appeal from the Criminal Court for Hamilton County
             No. 253045   Jon Kerry Blackwood, Senior Judge, Sitting by Designation


                       No. E2005-00968-CCA-R3-PC - Filed February 16, 2006


The Appellant, Jason Earl Hill, proceeding pro se, appeals the Hamilton County Criminal Court’s
summary dismissal of his petition for post-conviction relief. In 1995, Hill pled guilty to aggravated
burglary1 and received a three-year suspended sentence. In February 2005, Hill filed a pro se petition
for post-conviction relief collaterally attacking the 1995 conviction. While acknowledging that the
petition was filed outside the statute of limitations, Hill asserts that due process requires that the
statute be tolled and that his claims of ineffective assistance of counsel and an unknowing and
involuntary guilty plea be addressed. The post-conviction court summarily dismissed the petition
as time-barred without addressing the merits of Hill’s substantive claims. On appeal, Hill asserts
that the court erred in: (1) dismissing the petition as untimely; (2) dismissing the petition without
addressing the whole subject matter as to all causes of action involved; and (3) dismissing the
petition because due process requires vacating the conviction due to his innocence. After review,
we conclude that the facts of this case do not warrant tolling the post-conviction statute of
limitations. Accordingly, we affirm the post-conviction court’s summary dismissal of the petition.

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

DAVID G. HAYES, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
NORMA MCGEE OGLE, JJ., joined.

Jason Earl Hill, Pro Se, Coleman, Florida.

Paul G. Summers, Attorney General and Reporter; Sophia S. Lee, Assistant Attorney General; for
the Appellee, State of Tennessee.

                                                     OPINION

                                               Procedural History



         1
         As part of the same plea agreement, Hill also pled guilty to theft of property over $1000 and theft of property
under $500. However, he does not collaterally challenge those convictions in the instant appeal.
        As reflected by an unauthenticated copy of the transcript of the guilty plea hearing filed in
the record, the Appellant pled guilty on November 8, 1995, to aggravated burglary of “the home of
Jason Earl Hill,”2 theft of property over $1,000 from Kevin Sedman, and theft of money under $500
from Wanda Faye Ridge. These crimes occurred on July 22, 1995. Pursuant to a plea agreement,
the Appellant pled guilty to the three offenses and was sentenced to concurrent terms of one year for
Class E theft, eleven months and twenty-nine days for misdemeanor theft, and three years for
aggravated burglary. The sentences were suspended, and the Appellant was placed on probation for
a period of five years. No direct appeal was taken.

        The Appellant argues that, as a result of the erroneous advice given by counsel, he pled guilty
to the crime of aggravated burglary, which he now claims was a legal impossibility as one cannot
be convicted of the burglary of his own residence. After the sentence was imposed, the Appellant’s
probation was transferred to Louisiana based upon his relocation to that state.

        On October 18, 2002, the Appellant was convicted and sentenced in the United States District
Court in the Eastern District of Tennessee as a career offender based upon the subject aggravated
burglary conviction. As such, he received an enhanced federal sentence because of his previous
aggravated burglary conviction. Following sentencing, the Appellant was again transferred outside
the state of Tennessee.3

        In February 2005, the Appellant filed a pro se petition for post-conviction relief challenging
the 1995 aggravated burglary conviction. As grounds for relief, the Appellant asserted ineffective
assistance of counsel, an unknowing and involuntary guilty plea, error in accepting the plea without
a factual basis, a fundamental miscarriage of justice under the actual innocence standard exception,
a timely filing of his petition because he did not learn of his cause of action until his federal sentence
was enhanced and because he was denied access to Tennessee law and courts, and that he was denied
due process because his petition was barred due to untimeliness. On March 18, 2005, the post-
conviction court dismissed the petition as untimely without addressing the merits of the Appellant’s
substantive claims. This appeal followed.

                                                        Analysis

        On appeal, the Appellant asserts that the post-conviction court erred in dismissing his petition
as time-barred. Additionally, he asserts error because the court failed to review various substantive
issues such as whether he received the effective assistance of counsel, whether his plea was
knowingly and voluntarily entered, and whether the court erred in accepting a guilty plea for a crime


         2
         Other documents in the record indicate that the burglarized residence belonged to Kevin Sedman and that the
Appellant and Sedman were roommates. The indictments are not included in the record.

         3
           The Appellant’s brief asserts that following his Tennessee convictions, he has been confined at the Silver Dale
Holding Facility, state unknown; a holding facility in Bartow County, Georgia; the Georgia Federal Holding Facility in
Atlanta; the Oklahoma City Federal Transfer Facility; a holding facility in Pollock, Louisiana; and presently at a federal
correctional facility in Coleman, Florida.

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for which the facts would not support a conviction. With regard to the timeliness issue, the
Appellant acknowledges that the petition was filed outside the statute of limitations period but
asserts that due process precludes rigid application of the statute of limitations because he lacked
access to the Tennessee courts and Tennessee law during the time he was in custody in other states.
Additionally, he asserts that the statute should be tolled because he did not learn that his aggravated
burglary conviction could be used to enhance his subsequent federal sentence until 2001.

        Tennessee Code Annotated section 40-30-102(a) (2003),4 provides that a person in custody
under a sentence of a court of this state must petition for post-conviction relief within one 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 year of the date on which the judgment becomes final. The Appellant’s
conviction in this case became final on November 8, 1995. Thus, under the applicable statute of
limitations, the Appellant had until November 8, 1996, to file a petition for post-conviction relief.
The Appellant acknowledges that his petition was filed well outside the applicable limitations period.
However, he asserts that the statute of limitations should be tolled on due process grounds under the
holding of Burford v. State, 845 S.W.2d 204 (Tenn. 1992), and subsequent case law decisions.

        An untimely petition is subject to summary dismissal. T.C.A. § 40-30-106(b) (2003).
However, due process dictates that the statute of limitations is not to be so strictly applied as to deny
a person the opportunity to have his claim heard and determined at a meaningful time and in a
meaningful manner. State v. McKnight, 51 S.W.3d 559 (Tenn. 2001); Seals v. State, 23 S.W.3d 272
(Tenn. 2000); Burford v. State, 845 S.W.2d 204 (Tenn. 1992). The Post-Conviction Act itself
provides three exceptions to the one-year statute of limitations: (1) when a new constitutional right
has been recognized; (2) when the petitioner’s innocence has been established by new scientific
evidence; or (3) when a previous conviction that enhanced the petitioner’s sentence has been held
invalid. T.C.A. § 40-30-202(b) (2003). Clearly, as the Appellant acknowledges, none of these
exceptions are applicable to the facts of this case.

        The post-conviction court must also consider an otherwise untimely petition if the application
of the statute of limitations would be a denial of due process. Seals, 23 S.W.3d at 278-79. The
principles of due process are flexible, requiring a balancing of the petitioner’s liberty interest against
the State’s finality interest. Sample v. State, 82 S.W.3d 267, 274 (Tenn. 2002). In determining
whether due process should toll the statute of limitations, courts should utilize a three-step process:

        (1) determine when the limitations period would normally have begun to run;

        (2) determine whether the grounds for relief actually arose after the limitations period
        would normally have commenced; and




        4
            This statute became effective July 1, 1995.

                                                          -3-
       (3) 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 making this final determination, courts should
carefully weigh the petitioner’s liberty interest in “collaterally attacking constitutional violations
occurring during the conviction process,” Burford, 845 S.W.2d at 207, against the State’s interest
in preventing the litigation of “stale and fraudulent claims.” Sands, 903 S.W.2d at 301.

       In the written order dismissing the Appellant’s petition, the post-conviction court concluded:

       The Court also understands the petitioner to allege that due process precludes strict
       application of the statute of limitations for two reasons. First, he did not have access
       to Tennessee courts, law, or counsel during the time he was not in the custody of the
       state or in the state, i.e., after his probation was transferred to Louisiana soon after
       his release and, again, after the site of his incarceration was transferred from
       Tennessee soon after imposition of the federal sentence. Second, he did not learn
       that the conviction could “count against him” until it was used to enhance the federal
       sentence.

               Although due process precludes strict application of “‘procedural
       requirements such as statutes of limitation”’ effectively to deny a potential litigant
       an opportunity to present his claim(s) “‘at a meaningful time and in a meaningful
       manner[,]’” strict application of § 102(a) would not deny the petitioner a reasonable
       opportunity to present his claims. . . . All of the claims predate or coincide with
       commencement of the limitation period. Furthermore, neither incarceration in
       another state nor delayed discovery of a claim, including delay until the conviction
       is used to enhance a subsequent sentence, tolls the statute of limitations. . . .

              Thus, upon preliminary consideration of the petition pursuant to Tenn. Code
       Ann. § 40 30 106, the Court finds that it is untimely and should be dismissed.

        We find nothing in the record to preponderate against the post-conviction court’s findings.
As the court noted, the Appellant’s claims were not “later-arising.” Unlike the petition in Burford,
the Appellant’s grounds for relief existed at the time of his conviction. The factual grounds
supporting both his ineffective assistance of counsel claim and his involuntary guilty plea claim were
known to the Appellant at the time the plea was entered. Irrespective of whether the Appellant pled
guilty to burglary of his home or that of a roommate, clearly, when he entered his guilty plea, he was
aware of the ownership of the residence that he confessed guilt to entering. Thus, the alleged “later
arising facts” were not first discovered when used to enhance his federal sentence in 2001; rather,
they were known by the Appellant when he entered his guilty plea in 1995. Thus, applying the Sands
analysis, the Appellant is not entitled to relief. Moreover, contrary to the Appellant’s assertion that
we should toll the statute of limitations because he was incarcerated in another state and lacked


                                                  -4-
access to legal decisions, the case law is clear that a petitioner’s incarceration in another state does
not toll the statute of limitations. See Brown v. State, 928 S.W.2d 453, 456 (Tenn. Crim. App.
1996).

       Additionally, we note that the Appellant’s argument that the statute of limitations did not
begin to run until he discovered that he had grounds for post-conviction relief, i.e. when the
conviction for aggravated burglary was used to enhance his federal sentence, clearly is misplaced.
This court has previously rejected similar arguments and held that a petitioner’s professed lack of
knowledge of his ground for post-conviction relief does not toll the statute given the State’s interests
in preventing litigation of stale and fraudulent claims and in insuring administrative efficiency and
economy. Id. at 457; Howard Templeton v. State, No. 01C01-9406-CC-00220 (Tenn. Crim. App.
at Nashville, Jan. 5, 1995).

        In this case, due process is not implicated because the Appellant did have a reasonable
opportunity to have his claims heard. Due process requires that a petitioner be provided the
opportunity to pursue a claim; it does not require that the courts of this state permit petitioners to use
the claim of due process to excuse purposeful delay in the presentation of claims. To accept the
Appellant’s tolling argument in this case would effectively eviscerate the one-year statute of
limitations requirement. For these reasons, we conclude that the post-conviction court did not err
in summarily dismissing the petition for post-conviction relief as time-barred.

        Additionally, the Appellant asserts that the post-conviction erred by failing to rule on the
substantive issues of the petition. It is undisputed that “no court shall have jurisdiction” to consider
a time-barred petition unless it falls within one of the enumerated statutory exceptions, see T.C.A.
§ 40-30-102(b), or is mandated by due process. See William v. State, 44 S.W.3d 464 (Tenn. 2001).
“‘Given the post-conviction statute’s language conferring jurisdictional import to the timely filing
of a petition, it is essential that the question of timeliness be resolved before any adjudication on the
merits of the petitioner’s claim may properly occur.’” David Lackey v. State, No. M2004-00558-
CCA-R3-PC (Tenn. Crim. App. at Nashville, May 31, 2005) (quoting Antonio L. Saulsberry v. State,
No. W2002-02538-CCA-R3-PC (Tenn. Crim. App. at Jackson, Feb. 9, 2004). Thus, having
determined that the petition was untimely, the post-conviction court was without jurisdiction to
review the Appellant’s substantive claims.

                                           CONCLUSION

        Based upon the foregoing, the post-conviction court’s summary dismissal of the Appellant’s
petition for post-conviction is affirmed.


                                                         ___________________________________
                                                         DAVID G. HAYES, JUDGE




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