        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 4, 2013

                E. LOUIS THOMAS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 04-07385     J. Robert Carter, Jr., Judge


             No. W2012-00999-CCA-MR3-PC - Filed November 8, 2013


Petitioner, E. Louis Thomas, was convicted by a Shelby County jury for the offense of first
degree murder, and he received a sentence of life imprisonment. The conviction was
affirmed on appeal, and the Tennessee Supreme Court denied Petitioner’s timely filed pro
se application for permission to appeal to that court. See State v. E. Louis Thomas, No.
W2008-01360-CCA-R3-CD, 2010 WL 2977874 (Tenn. Crim. App. July 29, 2010) perm.
app. denied (Tenn. Jan. 18, 2011). Both of Petitioner’s counsel were allowed to withdraw
as counsel of record on August 24, 2010, pursuant to Tenn. Sup. Ct. R. 14. Petitioner filed
a petition for post-conviction relief. The earliest it could be considered “filed,” under the
“mailbox” rule, was March 22, 2012. The trial court summarily dismissed the petition
because it was filed outside the one year statute of limitations. Petitioner appeals, and we
affirm the judgment of the post-conviction court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and J EFFREY S. B IVINS, JJ., joined.

E. Louis Thomas, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Paul Goodman, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       Petitioner mistakenly asserts in his appeal that this court granted him “a delayed
appeal” of his conviction, and he has presented his argument in the brief in accordance with
this misconception. This court actually entered an order that, in essence, waived the timely
filing of the notice of appeal from the trial court’s order dismissing the petition for post-
conviction relief. The appropriateness of this action by the trial court is the sole issue on
appeal.

       In his petition for post-conviction relief, Petitioner’s entire response as to why the one
year statute of limitations should not bar his claim is as follows:

        [Trial/Appellate Counsel] filed many extension[s] in my case and informed
        me that he would forward me a letter letting me know exactly when to do
        my post-conviction and that he would assist me but never did. He
        resign[ed] from my case after the decision from the [C]ourt[ ] of [Criminal]
        [A]ppeals[s].

        As stated above, the record reflects that trial/appellate counsel were permitted to
withdraw as counsel, pursuant to Tenn. Sup. Ct. R. 14, following this court’s issuance of its
opinion in Petitioner’s case. That rule requires counsel to provide a defendant with notice,
among other things, that counsel is requesting to withdraw as counsel for the Defendant. The
motion cannot be granted absent delivery of this notice. Petitioner in this case acknowledges
that he knew when counsel withdrew, both by his statement in his petition and implicitly by
timely filing a pro se application to appeal his case to the supreme court.

        Tennessee Code Annotated section 40-30-102 provides that Petitioner had one year
from January 18, 2011 (the date the Tennessee Supreme Court denied his application to
appeal) to timely file a petition for post-conviction relief. Tenn. Code Ann. § 40-30-102(a).
Subsection (b) of that statute provides for three very limited exceptions to the statute of
limitations, and none of the exceptions listed were alleged in the petition to be applicable in
this case. See Tenn. Code Ann. § 40-30-102(b).

        Constitutional due process claims, when appropriate, might also cause the statue of
limitations to be tolled. In the recent case of Whitehead v. State, our supreme court adopted
a new standard for determining if due process required tolling of the statute of limitations in
post-conviction cases. The court held,

                Henceforth, when a post-conviction petitioner argues that due
        process requires tolling the Post-Conviction Procedure Act’s statute of
        limitations based on the conduct of his or her lawyer, the two-prong inquiry
        of Holland and Maples should guide the analysis. A petitioner is 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. Holland v. Florida,

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        [560 U.S. 631,] 130 S. Ct. [2549,] 2562[, 177 L. Ed. 2d 130 (2010)].
        Specifically, 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. See Maples v. Thomas,
        [___ U.S. ___,] 132 S. Ct. [912,] 923[, 181 L. Ed. 2d 807 (2012)]; Holland
        v. Florida, 130 S.Ct. at 2564-65; Dillon v. Conway, 642 F.3d 358, 363-64
        (2d Cir. 2011); Downs v. McNeil, 520 F.3d at 1320-21 (discussing these
        two “well-recognized exceptions” to the “your lawyer, your fault” rule).

                In terms of diligence, courts have recognized that due diligence “does
        not require a prisoner to undertake repeated exercises in futility or to exhaust
        every imaginable option, but rather to make reasonable efforts. . . .
        Moreover, the due diligence inquiry is an individualized one that must take
        into account the conditions of confinement and the reality of the prison
        system.” Downs v. McNeil, 520 F.3d at 1323 (quoting Aron v. United
        States, 291 F.3d 708, 712 (11th Cir. 2002)).

        Whitehead, 402 S.W.3d 615, 631 (Tenn. 2013).

      We conclude that Petitioner’s case does not fall within the standard announced in
Whitehead. If it did, the “exception[ ] [would] swallow the rule.” Id. at 632 (citing Ex parte
Ward, 46 So. 3d 888, 897 (Ala. 2007) and quoting United States v. Marcello, 212 F.3d 1005,
1010 (7th Cir. 2000)).

        Accordingly, Petitioner is not entitled to relief in this appeal, and the judgment of the
trial court is affirmed.

                                                     _________________________________
                                                     THOMAS T. WOODALL, JUDGE




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