         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs February 1, 2005

                RICHARD A. EMMITT v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                           No. 84-W-91     Steve R. Dozier, Judge



                     No. M2004-00564-CCA-R3-PC - Filed March 16, 2005


The petitioner, Richard A. Emmitt, was convicted in 1984 of assault with intent to commit second
degree murder, aggravated kidnapping, aggravated rape, armed robbery, and first degree burglary
and received an effective sentence of 125 years. His convictions were affirmed on direct appeal.
The petitioner filed a petition for post-conviction relief on January 21, 2004, which the post-
conviction court dismissed as untimely. The petitioner appeals, claiming the statute of limitations
was tolled. Following our review, we affirm the dismissal of the petition.

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

ALAN E. GLENN , J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
ROBERT W. WEDEMEYER , JJ., joined.

Richard A. Emmitt, Pikeville, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor
S. Johnson, III, District Attorney General; and Pamela Anderson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

                                               FACTS

        The facts of this case were set out in the opinion of this court on direct appeal affirming the
petitioner’s convictions:

              These offenses arose from an episode that occurred in Nashville on or about
       January 12, 1984, when the [petitioner] and a codefendant, Dewayne Haynes, broke
       and entered the residence of 82-year-old Eloise Jordan and victimized her as will
       hereinafter be more fully detailed. They procured from her a check in the sum of
$1,500.00 drawn on the Third National Bank and made payable to "Cash." We have
only the appeal of Emmitt before us.

        The [petitioner] introduced no evidence at trial. The State's evidence revealed
that a second codefendant, Stuart Brown, presented the $1,500.00 check to a teller
at the Third National Bank at approximately 8:30 A.M. on January 13, 1984. Brown
produced a birth certificate but no driver's license for identification and the teller
referred him to a bank officer, Bobbie Kincaid. Ms. Kincaid referred the matter to
a bank investigator, Sam Neal.

        Mr. Neal testified that Brown told him that another man had given the check
to him and promised to pay him $100.00 for cashing it. The man told Brown that he
had no identification. Brown pointed out the [petitioner], who was present in the
bank, as the man who had hired him to cash the check.

        When Mr. Neal interviewed the [petitioner], he was told that he (the
[petitioner]) was given the check for work that he did "for this lady." When Neal
expressed incredulity, the [petitioner] then stated that "the other man gave me the
check." The "other man" was the codefendant, Haynes, who was also in the bank.
Haynes told Neal that he had found the check on the street already made out. Neal
turned the three men over to the police.

        At approximately 10:30 A.M. on January 13, 1984, the morning of the
attempt to cash the check at the bank, police officers went to the residence of the
victim, Ms. Jordan. Officer Aubrey Turner testified that upon entering Ms. Jordan's
apartment, he found that dresser-drawers had been pulled out and the contents
dumped on the floor. The entire apartment was ransacked. A windowpane from a
wooden back door was missing. Officer Turner was unable to locate Ms. Jordan.

        The proof established that several detectives came to the apartment that
morning to investigate. One of the detectives found Ms. Jordan inside a hall closet
and initially thought her to be dead, although it was later discovered that she was not.
When found, the victim was naked above her knees, her pants having been pulled
down below her knees. She was bound with an electrical cord that had been placed
in a position which made it impossible for her to move her hands or feet. Another
cord ran from her hands to her feet and ankles. A third cord was tied around her arms
and placed around her mouth and throat in such manner that any movement would
have resulted in strangulation. Cloth had been stuffed into the victim's mouth. It was
discovered that entry into the victim's apartment had been gained by the removal of
a windowpane from the back door. The victim described her assailants to the officers
as "a black guy and a blonde-headed guy."




                                          -2-
       The [petitioner] gave Detective Tim Allen a confession after waiving his
Miranda rights. In the confession, the [petitioner] describes how he and "Slim", a
black male (the defendant Dewayne Haynes), gained entry into the victim's apartment
by removing a window from a back door at approximately 9:00 P.M. on the evening
of January 12. The [petitioner] stated as follows:

       "He went in first. He grabbed her. I tied her hands, Slim tied her feet
       with a phone cord. Before we tied her up, he made her write some
       checks out. We both went through the house looking for money. Just
       before we left, we put her in the closet. We left through the back
       door. We left about eleven o'clock. We had one colored guy cash the
       check for us at the Third National Bank. The check was for
       $1,500.00. The bank sat us down and called the police.

       While she was in the bedroom, Slim pulled her pants down. I
       touched her pussy. I put my finger into the first joint. Slim spread
       her apart with his hands inside her."

        After obtaining the written statement, an interview of the [petitioner] was
recorded. The tape was played for the jury. In the recorded statement, the
[petitioner] describes in detail the robbery of, and the attack upon, the victim. After
tying the victim's hands and pulling down her pants, she was forced to write out
checks. The [petitioner] claimed that Haynes had struck the victim in the face. The
[petitioner] also acknowledged having placed his finger inside the victim's vagina
because "we figured that maybe if she thought we were going to rape her, maybe she
would tell us where the money was at." The victim had been beaten in the face and
had also been tied before she wrote the checks. A portion of the oral statement is as
follows:

       "DETECTIVE ALLEN: Okay. All right. She's still in the bedroom
       and she's written the checks out, what happens next?

       [THE PETITIONER]: Well, then he went--after she wrote the check
       out, he went and tied her mouth and then he was getting ready to retie
       her back up with the telephone cord, and I said no, I done put that
       around her hands, we'll just use a piece of cloth, to not tie her hands
       with a piece of cloth, and then he grabbed the back and I grabbed the
       front and picked her up and put her in the closet, then shut the closet
       and we both went out the door." (Emphasis supplied)

       The [petitioner] stated that he did not know whether Haynes had raped Ms.
Jordan but that he saw Haynes spread her vagina "pretty wide" with his hands. The
victim could not scream because she had a sock in her mouth.


                                         -3-
State v. Richard A. Emmitt, No. 85-105-III, 1986 WL 2309, at **1-2 (Tenn. Crim. App. Feb. 21,
1986).

         On January 21, 2004, nearly eighteen years after his convictions had become final, the
petitioner filed a pro se petition for post-conviction relief by “next friend,” paralegal Dr. Donald C.
McCary,1 alleging, inter alia, ineffective assistance of counsel, that the State withheld exculpatory
evidence at trial, and that the trial court erred in instructing the jury. Anticipating a response that his
pleading was untimely, he asserted that the statute of limitations had been tolled because: (1) this
court had established a constitutional right concerning jury instructions not recognized as existing
at the time of trial; (2) he was not mentally competent to file a petition; and (3) trial counsel failed
to appeal to the Tennessee Supreme Court the decision of this court affirming the petitioner’s
convictions.

        On February 3, 2004, the post-conviction court entered an order summarily dismissing the
petition on the grounds that it was barred by the one-year statute of limitations and the asserted
grounds for relief did not fall within any of the exceptions to the limitation period. The petitioner
then filed a timely appeal to this court, challenging the dismissal.

                                                     ANALYSIS

         During the twenty years between the petitioner’s convictions and his seeking post-conviction
relief, several post-conviction statutes were enacted and supplemented by subsequent statutes, as
explained in Seals v. State, 23 S.W.3d 272, 275-76 (Tenn. 2000). The Post-Conviction Procedure
Act of 1967 did not include a statute of limitations for seeking relief, allowing a petition to be filed
“at any time after [a petitioner] ha[d] exhausted his appellate remedies and before the sentence ha[d]
expired or had been fully satisfied.” Tenn. Code Ann. § 40-30-102 (1982) (repealed 1986).
However, the 1986 Post-Conviction Act established a three-year statute of limitations:

         A prisoner in custody under sentence of a court of this state must petition for post-
         conviction relief under this chapter within three (3) years of the date of the final
         action of the highest state appellate court to which an appeal is taken or consideration
         of such petition shall be barred.

Tenn. Code Ann. § 40-30-102 (1990) (repealed 1995). “To ensure that the constitutional
requirement of reasonable notice was observed, the Tennessee Supreme Court ruled that those whose
convictions were final before the effective date of the act had three years from July 1, 1986 to file
a post-conviction claim.” Robert L. Smith, Jr. v. Judge Sterling Gray, No. 01CO1-9610-CR-00450,
1997 WL 672664, at *1 (Tenn. Crim. App. Oct. 30, 1997) (citing Abston v. State, 749 S.W.2d 487,
488 (Tenn. Crim. App. 1988), perm. to appeal denied (Tenn. Mar. 16, 1998). Thus, in the present


         1
            “Dr.” McCary is a fellow inmate of the petitioner. In an affidavit attached to the petition, McCary states that
his title derives from his honorary doctorate from “Covington College.”

                                                           -4-
matter, because the petitioner’s convictions were affirmed by this court on February 21, 1986, and
no application for permission to appeal to the state supreme court was filed, the statute of limitations
for seeking post-conviction relief as to the petitioner’s sentences began to run on July 1, 1986, and
expired on July 1, 1989. The petition was filed on January 21, 2004, nearly fifteen years after the
statute had run.

        In 1995, the legislature enacted the current post-conviction relief act, effective May 10, 1995,
which provides that post-conviction petitions are untimely unless they are filed “within one (1) 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 (1) year of the date on which the judgment became final . . . .” Tenn.
Code Ann. § 40-30-102(a) (2003). Since the statute of limitations applicable to the petitioner’s post-
conviction claims had expired before the enactment of the 1995 Post-Conviction Procedure Act, that
subsequent act did not give him additional time within which to file such claims. See Carter v. State,
952 S.W.2d 417, 419 (Tenn. 1997).

        The petitioner claims three bases for the tolling of the statute of limitations, which we will
consider. First, he argues that the statute of limitations should be tolled pursuant to an exception in
the 1995 Post-Conviction Procedure Act, codified at Tennessee Code Annotated section 40-30-
102(b)(1), providing that untimely post-conviction petitions may be considered if “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.”
Seeking to apply this principle and relying on our opinion in State v. Robert F. Smythers, No.
E2001-02806-CCA-R3-CD, 2003 WL 21145428 (Tenn. Crim. App. May 19, 2003), perm. to appeal
denied (Tenn. Oct. 27, 2003), the petitioner argues that the trial court’s jury instructions in his 1984
trial were incomplete because they failed to define or include the element of “knowing” and that his
right to such an instruction is a newly recognized constitutional right.

         An element of the offense of second degree murder, as it is currently codified at Tennessee
Code Annotated section 39-13-210(a)(1) (2003), is that the defendant acted “knowingly.” In
addition, voluntary manslaughter requires that a defendant’s conduct be “ intentional or knowing.”
Tenn. Code Ann. § 39-13-211(a) (2003). At the time of the petitioner’s 1984 trial, however, second
degree murder, as defined in Tennessee Code Annotated section 39-2-211 (repealed 1989), did not
require that the petitioner act “knowing” or “knowingly,” but instead that he act willfully and with
malice. See Farr v. State, 591 S.W.2d 449, 451 (Tenn. Crim. App. 1979). Additionally, at the time
of his trial, voluntary manslaughter was defined as “the unlawful and intentional killing by one of
another, without malice, but upon a sudden heat or passion produced by provocation adequate to
obscure the reason of an ordinary man.” Smith v. State, 212 Tenn. 510, 515, 370 S.W.2d 543, 545
(1963); Tenn. Code Ann. § 39-2-221 (repealed 1989). Thus, what he views as newly recognized
constitutional rights are, in fact, merely different jury instructions because of redefinitions of
criminal offenses. Accordingly, his first basis for tolling the statute of limitations is without merit.

       As a second basis, he asserts that he was mentally incompetent, both during and after his trial,
and thus unable to timely file a petition for post-conviction relief.


                                                   -5-
         The 1995 Post-Conviction Procedure Act contains a specific anti-tolling statute. See Tenn.
Code Ann. § 40-30-102(a) (2003) (providing that “[t]he statute of limitations shall not be tolled for
any reason, including any tolling or saving provision otherwise available at law or equity”).
However, in Seals, 23 S.W.3d at 279, our supreme court recognized that due process requires that
the post-conviction statute of limitations be tolled during periods of a petitioner’s mental
incompetency. In State v. Nix, 40 S.W.3d 459, 463 (Tenn. 2001), our supreme court, addressing the
issue of what specific standard of mental incompetence must be satisfied to require tolling, explained
that “due process requires tolling of the post-conviction statute of limitations only if a petitioner
shows that he is unable either to manage his personal affairs or to understand his legal rights and
liabilities.” Id. The Nix court stressed that the burden is on the petitioner to include specific factual
allegations in his petition to support his claim of mental incompetence:

        We emphasize that to make a prima facie showing of incompetence requiring tolling
        of the limitations period, a post-conviction petition must include specific factual
        allegations that demonstrate the petitioner's inability to manage his personal affairs
        or understand his legal rights and liabilities. 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). The required
        prima facie showing may be satisfied by attaching to the petition affidavits,
        depositions, medical reports, or other credible evidence that contain specific factual
        allegations showing the petitioner's incompetence. While affidavits and depositions
        of mental health professionals may be utilized, they are not essential, and a petitioner
        may rely upon affidavits and depositions from family members, prison officials,
        attorneys, or any other person who has knowledge of facts that demonstrate either the
        petitioner's inability to manage his personal affairs or the petitioner's inability to
        understand his legal rights and liabilities.

Id. at 464 (citations omitted) (emphasis added).

         If the petitioner was competent for a total of three years from February 21, 1986 to May 9,
1995, the three-year statue of limitations of the 1989 Act expired; and the petition was not timely.
See Alvin L. Smith v. State, No. 01C01-9808-CC-00343, 1999 WL 810229, at *2 (Tenn. Crim. App.
Oct. 12, 1999) (explaining that a post-conviction petition was not timely if petitioner was competent
for a total of either three years or one year, depending on whether the three-year statute of limitations
under the 1989 Act, or the one-year statue of limitations under the 1995 Act, applied). Accordingly,
the petition in this appeal was timely only if the petitioner was not competent for a total of three
years from February 21, 1986 to May 9, 1995 and was not competent for a total of one year from
May 10, 1995 to January 21, 2004. See id.

        As proof of mental incompetence, the petitioner asserted that he has a seventh grade
education and an IQ of 55, that he was verbally and physically abused by his alcoholic father when
he was a child, and that he has never had a driver’s license or a bank account as an adult. He also
claims that “[a]ll of his life he has suffered from apparent psychological impairment and an unsound


                                                   -6-
mind.” However, the only “proof” in the record of any of these claims is the affidavit of McCary,
the “next friend” and fellow inmate of the petitioner.2 The record does not contain affidavits or
depositions from family members, mental health professionals, prison officials, or attorneys.
Additionally, it does not include medical reports or test results which would show any incompetence
on the part of the petitioner, and there is no indication of a history of treatment or confinement in any
sort of mental health facility. We cannot conclude that the affidavit of a fellow inmate is the type
of credible evidence envisioned in Nix by our supreme court. We note that in our opinion on direct
appeal, contrary to the petitioner’s claim in this proceeding that he has an IQ of 55, we stated that
while the petitioner was a “slow learner,” “[t]here was also evidence that the [petitioner] had scored
from 70 to 85 on I.Q. tests.” Richard A. Emmitt, 1986 WL 2309, at *10. Accordingly, this basis
for tolling the statute of limitations, likewise, is without merit.

        As his final argument for tolling the statute of limitations, the petitioner asserts that counsel
failed to seek application for permission to appeal this court’s decision affirming his convictions to
the Tennessee Supreme Court. In his petition, he alleged that counsel did not “make petitioner aware
he could appeal” the decision of this court to the supreme court and “did not withdraw as his
counsel” pursuant to Tennessee Supreme Court Rule 14, and this inaction tolled the statute of
limitations for filing a post-conviction petition. In the alternative, he argues that he should be
granted a delayed appeal of his convictions to the supreme court.

        The petitioner’s convictions became final in 1986 and he did not seek post-conviction relief,
including asking for the filing of an application for permission to appeal to the Tennessee Supreme
Court, until 2004, some eighteen years later. As far as we can tell from his pleadings, this is the first
time he has expressed a desire to file an application for permission to appeal. He does not explain
why only now does he wish to do so.

        In Williams v. State, 44 S.W.3d 464 (Tenn. 2001), a majority of our supreme court concluded
that “due process considerations may have tolled the limitations period” for filing a post-conviction
petition when the petitioner’s appointed counsel misled the petitioner into believing that counsel was
continuing the direct appeal process. Id. at 471. Counsel’s actions must be more than mere
negligence and must rise to the level of misrepresentation before relief from the statute of limitations
will be granted. Id. at 468 n.7. In Wallace v. State, 121 S.W.3d 652, 656 (Tenn. 2003), our supreme
court explained that a defendant may receive a delayed appeal where he was denied the effective
assistance of counsel.

         Unlike the situation in Williams, where counsel misled the petitioner to believe he was
continuing the appeal process, or Wallace, in which counsel had neglected to file a motion for new
trial, the petitioner in the present appeal has waited eighteen years to claim that he wishes to appeal
this matter to our supreme court. There is no indication that he was under the mistaken impression


         2
          The events resulting in the incarceration of inmate McCary are set out in State v. M cCary, 119 S.W .3d 226
(Tenn. Crim. App. 2003), which we note because he submitted his affidavit intended to establish the petitioner’s alleged
mental disabilities.

                                                          -7-
that trial counsel continued to represent him after this court affirmed his convictions, and the appeal
simply was taking nearly two decades. In Crawford v. State, 151 S.W.3d 179 (Tenn. Crim. App.),
perm. to appeal denied (Tenn. 2004), we interpreted Williams as “limit[ing] claims of attorney
misrepresentation tolling the statute of limitations to times when counsel has made
misrepresentations directly related to filing a defendant’s appeal.” Id. at 184. We agree with the
post-conviction court that the petitioner’s pleadings are insufficient in this regard, as well.

                                          CONCLUSION

       We affirm the post-conviction court’s dismissal of the petition as time-barred.


                                                       ___________________________________
                                                       ALAN E. GLENN, JUDGE




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