        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs April 12, 2011

                  BRYANT ADAIR v. STATE OF TENNESSEE

                      Appeal from the Shelby County Criminal Court
                       No. 03-01051     W. Otis Higgs, Jr., Judge


                 No. W2010-01608-CCA-R3-PC - Filed June 30, 2011


The Petitioner, Bryant Adair, appeals from the Shelby County Criminal Court’s dismissal of
his untimely filed petition for post-conviction relief from his convictions for especially
aggravated kidnapping and two counts of aggravated robbery and from his effective sentence
of thirteen and one-half years. On appeal, the Petitioner contends that principles of due
process require the tolling of the applicable statute of limitations. We affirm the judgment
of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and R OBERT W. W EDEMEYER, JJ., joined.

Terita M. Hewlett, Memphis, Tennessee, for the appellant, Bryant Adair.

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

                                         OPINION

       The Petitioner pled guilty on September 13, 2004, and judgments were entered on that
date. He filed his post-conviction petition on July 18, 2006. The pro se petition alleged that
due process required tolling of the statute of limitations due to the Petitioner’s mental
incompetence. The trial court appointed counsel, who was later relieved, and other counsel
was appointed. The Petitioner’s second attorney filed a “Notice That No Amended Petition
Will Be Filed.” The notice made factual allegations pertinent to the procedural history of the
case, restated the basis of the Petitioner’s post-conviction claims, and reasserted the
Petitioner’s claim of mental incompetence. Trial counsel filed the Petitioner’s mental health
treatment records for the time period from July 29, 2004, until June 21, 2006, with the notice.

        The records filed with the notice reflect the following: During a July 29, 2004
admission to a Middle Tennessee Mental Health Institute, the Petitioner was diagnosed with
depressive disorder, malingering, alcohol abuse, cannabis abuse, and cocaine abuse. The
discharge summary reported that the Petitioner previously had been evaluated by the Mental
Health Cooperative in August 2002 and “was cooperative, charming, and sincere,” but that
he was referred to the prison hospital for the current evaluation because he “was verbally
unresponsive, appeared vacant, [and] was rocking in his chair.” The Petitioner professed
during his first evaluation in the July 2004 admission not to know his age or date of birth.
The next day, the Petitioner responded that he did not know or did not remember the answers
to many questions he was asked. He claimed to be sixteen years old but stated that he did not
know his date of birth. He claimed not to know his criminal charges or his medications. He
reported that he heard voices “since he was little” and that the voices told him to cut himself
and to kill himself and others. The Petitioner reported past suicide attempts and stated that
he brought razor blades from the jail to the mental health hospital by concealing them in his
mouth. He was given Zyprexa and Prolixin but did not respond to the drugs. Psychological
tests revealed that the Petitioner was malingering. The attending psychiatrist stated that the
Petitioner was “[c]ompetent to stand trial” and “[did] not meet the criteria for [an] insanity
defense or committability.” He was discharged to the jail with a prescription for Effexor XR
and followup by the Mental Health Cooperative was recommended.

       The documents attached to the notice filed by trial counsel also included a Department
of Correction Mental Health Treatment Plan dated September 23, 2004, which stated the
Petitioner’s initial diagnoses as paranoid-type schizophrenia and borderline personality.
There was a note that depression needed to be ruled out. A psychiatrist and three staff
members signed the document.

         The record contains other Department of Correction documents detailing the
Petitioner’s mental health treatment. They list the psychiatric diagnoses of depression,
schizophrenia, and borderline personality disorder. They also document that the Petitioner
was taking medication and receiving treatment, although they reflect time periods during
which the Petitioner refused to take his medication. These records note that the Petitioner
reported past suicide attempts and was hospitalized for a suicide attempt in December 2003.
The documents do not contain any statements by mental health professionals addressing
whether the Petitioner is unable to manage his affairs or to understand his legal rights and
liabilities.




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        Although the State disputed that the petition established a prima facie case for due
process tolling, the assistant district attorney agreed in the interest of judicial economy for
the trial court to conduct a hearing on the tolling issue but said the State did not waive the
question of the sufficiency of the petition. At the hearing, the Petitioner testified that during
his examination at a mental health hospital in 2003, he was diagnosed with “bipolar, manic
depressive, with paranoid schizophrenia.” He said, “They took me down to the little
courtroom inside that place and they declared me, that’s what they told me that I was
declared as.” He also stated that his mother “was pronounced by [sic] over-seer of [his]
affairs” when he was at this psychiatric hospital and that this arrangement was still in place.
He said that since his incarceration following his guilty plea in the present case, his family
helped him by sending money to his prison account, assisting in obtaining items he needed
in prison, and assisting in choosing a lawyer to pursue an unidentified issue related to a
disability from “cellulites [sic] in my leg.” He said other inmates helped him to make
decisions and talked to him when his psychiatrist would not. He said that other inmates who
were of the same religion supported his religious studies and helped to “guide” him on the
“right path” and to stay out of trouble.

        The trial court found that the Petitioner failed to establish that due process required
tolling of the statute of limitations based upon the Petitioner’s alleged mental incompetency.
The trial court dismissed the petition. This appeal followed.

       A petition for post-conviction relief must be filed within one year of the final action
by the highest state appellate court to which an appeal is made or within one year of the trial
court’s judgment becoming final. T.C.A. § 40-30-102(a) (2006). Tennessee Code Annotated
provides for tolling of the post-conviction statute of limitations in three instances not
applicable to this appeal. See id. at (b)(1)-(3). In addition, principles of due process may
allow tolling of the statute of limitations in limited circumstances. See Burford v. State, 845
S.W.2d 204, 208 (Tenn. 1992) (“due process requires that potential litigants be provided an
opportunity for the presentation of claims at a meaningful time and in a meaningful
manner”); see also Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000) (holding that “a
petitioner who is mentally incompetent is denied an opportunity to raise a claim in a
meaningful manner unless the statute of limitations is tolled during the period of mental
incompetence”).

         In order to show that due process requires tolling of the post-conviction statute of
limitations, the petitioner must make a prima facie showing in the post-conviction petition
that he or she is not able to manage personal affairs or understand his or her legal rights or
liabilities. State v. Nix, 40 S.W.3d 459, 462-63 (Tenn. 2001). “Unsupported, conclusory,
or general allegations of mental illness will not be sufficient to require tolling and prevent
summary dismissal under Tenn. Code. Ann. § 40-30-206(b) & (f).” Nix, 40 S.W.3d at 464

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(citing statute now renumbered as T.C.A. § 40-30-106(b), (f)). This prima facie showing
requires the petitioner to state specific factual allegations regarding his or her inability to
manage personal affairs or understand legal rights or liabilities in the petition. Id. The
petitioner may satisfy this requirement by attaching to the petition affidavits, depositions,
reports, or other credible evidence of his mental condition. Id. It is not essential that the
petitioner use materials from mental health professionals, but instead, the petitioner may call
upon anyone with knowledge of his mental condition, such as family members or prison
officials. Id. “Even if a petitioner satisfies the prima facie showing, at the hearing the
petitioner bears the burden of proving by clear and convincing evidence that the statute of
limitations should be tolled for incompetence, and that as a result of the tolling, the petition
is timely.” Id. (citing T.C.A. § 40-30-210(f) (now 40-30-110(f)).

        First, we conclude that the mental health records attached to the petition in the present
case fail to make a prima facie showing that the Petitioner was unable to manage his personal
affairs or understand his legal rights and liabilities during the limitations period. Our
supreme court has stated that “mental illness is not the equivalent of mental incompetence.”
Reid v. State, 197 S.W.3d 694, 702 (Tenn. 2006) (citing Nix, 40 S.W.3d at 463-64). The
Petitioner argues that his psychiatric diagnoses and the medications he took resulted in
mental incompetency, but nothing in the documents states that the Petitioner was unable to
manage his affairs or understand his legal rights and liabilities. Likewise, nothing in the
documents suggests such a connection.

       We also conclude that at the hearing, the Petitioner failed to show clear and
convincing proof of his mental incompetency. The Petitioner testified that his mother “was
pronounced by [sic] over-seer of [his] affairs” when he was at the psychiatric hospital in
2003 and that this arrangement was still in place. The Petitioner did not offer documentary
proof of a court-ordered conservatorship or appointment of a guardian, nor did he call his
mother as a witness to explain her legal responsibilities arising from the Petitioner’s alleged
incompetence. He also testified that other inmates assisted him with various matters,
although he did not call these witnesses at the hearing or offer proof of specific decisions
they helped him make in managing his affairs or of their knowledge and observations of his
alleged mental incompetency.

       In contrast to the Petitioner’s testimony that there was a legal proceeding in 2003 in
which his mother was declared his conservator or guardian, the Petitioner’s mental health
treatment records reflect that during an approximate one-month psychiatric evaluation in
2004 at Middle Tennessee Mental Health Institute, the Petitioner’s attending psychiatrist
reported that the Petitioner was malingering, that he was competent to stand trial, and that
he did not meet the criteria for an insanity defense or for being committed to a mental



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hospital. The Petitioner’s guilty plea in this case took place approximately two weeks after
his discharge from this evaluation.

        Although the trial court did not specifically address the Petitioner’s credibility in its
order, it ruled that based upon the evidence presented at the hearing, “no exception to [the
one-year] statute of limitations has been proven.” Implicit in the court’s ruling is its
discounting of the Petitioner’s testimony. The evidence in the record does not preponderate
against the trial court’s determination that the Petitioner’s testimony was not sufficient proof
to establish his tolling claim. See Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001)
(stating that an appellate court is bound by the trial court’s findings of fact unless it
concludes that the evidence in the record preponderates against those findings). Because the
Petitioner failed to establish his tolling claim at the hearing, the trial court properly dismissed
his petition as untimely.

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.




                                                      ____________________________________
                                                      JOSEPH M. TIPTON, PRESIDING JUDGE




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