        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs November 17, 2015

               TIMOTHY COLEMAN v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for McMinn County
                   No. 15-CR-228 Sandra N.C. Donaghy, Judge



                No. E2015-01414-CCA-R3-PC – Filed January 29, 2016


According to the allegations of the pro se post-conviction petition, the Petitioner,
Timothy Coleman, pleaded guilty to initiation of a process to manufacture
methamphetamine and received a nine-year sentence. He alleged that the date of the
judgment was March 7, 2014, and that no appeal was filed. He filed a post-conviction
petition on July 6, 2015, alleging that due process required tolling of the one-year post-
conviction statute of limitations due to his mental incompetency. The post-conviction
court summarily dismissed the petition as time-barred. On appeal, the Petitioner
contends that the post-conviction court erred in dismissing the case on the basis of the
statute of limitations. He also contends that newly discovered evidence may establish his
actual innocence of the offense. We affirm the judgment of the post-conviction court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and ROGER A. PAGE, JJ., joined.

Timothy Coleman, Whiteville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Stephen Crump, District Attorney General, for the appellee, State of
Tennessee.

                                         OPINION

        The primary issue in this case relates to the level of specificity required of a pro se
post-conviction petition relative to allegations of mental incompetence as a basis for
tolling the one-year statute of limitations. In the pro se petition, the Petitioner alleged the
following related to mental incompetency and mental illness:
This Petitioner, being mentally incompetent, with about a 3rd grade
education, respectfully request[s] that the Court Toll the Statute of
Limitations. This petitioner has no legal training what so ever, and has not
failed to bring this Petition before the Court, because of a mental problem,
this Petition is now before this Court.

...

The attorneys failed to request a competency Hearing from the Court, and
the attorneys knew and realized that this Petitioner is mentally incompetent.
This is a procedural and substantive incompetency claim. . . .

...

This Petitioner’s Due Process Rights require the court to Toll the Statute of
Limitations and to Appoint Competent Counsel to represent this Petitioner
at all stages of this Petition.

This Petitioner, was drawing Disability Social Security, was taking
medicine for the Mental Problems, as the Social Security Records will
show. . . .

Since the beating at the County Jail by the Guards, this Petitioner has more
problems with seizures, to the point of passing out, problems thinking or
remembering certain details, or family members, or friends, and has been
taking meds for these seizures in the prison facilities, as well [as] other
medications for the medal [sic] plate Placed in his cheek where the jailors
beat and stomped Petitioner. Petitioner alleges that the jailors beat him
because of his mental Problems, and they were afraid Petitioner would find
out about [the unlawful acts of a law enforcement officer involved in the
Petitioner’s case].

...

Petitioner[’]s Mental illness goes to show that Petitioner Could not
comprehend the actions of pleading guilty, and constitutes Ineffective
Assistance of Counsel.



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The Petitioner’s substantive bases for post-conviction relief related to prosecutorial
misconduct, ineffective assistance of counsel, and an unknowing and involuntary guilty
plea. He sought the appointment of counsel.

        The post-conviction court summarily dismissed the Petition as untimely. The
court acknowledged that although the post-conviction statute of limitations could be
tolled due to mental incompetence, the Petitioner had “failed to attach any documentation
or other proof to his petition to support his claim for the toll.” The court noted, as well,
that the Petitioner had not signed the Petition under oath before a notary.

        In his pro se notice of appeal, the Petitioner stated that he had no access to the
Social Security records that would demonstrate his mental incompetency. He stated that
he had requested his Social Security records in January 2015 but had not received the
records or a response as of July 17, 2015, the date he signed the notice of appeal. He also
stated that he had been unable to obtain notarization of his petition because he and the
rest of the prison had been “on lock-down.”

      The Petitioner contends that the post-conviction court erred in summarily
dismissing the petition without appointing counsel and requiring the State to file an
answer. The State contends that the court properly dismissed the petition as untimely.

        Post-conviction relief is available within one year of the date of a judgment’s
becoming final. T.C.A. § 40-30-102(a) (2012). The Post-Conviction Procedure Act
states, “Time is of the essence of the right to file a petition for post-conviction relief . . . ,
and the one-year limitations period is an element of the right to file such an action and is
a condition upon its exercise.” Id. The statute provides three exceptions:

       (b) No court shall have jurisdiction to consider a petition filed after the
       expiration of the limitations period unless:

       (1)       The claim in 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. The petition must be filed within one (1) year of the ruling of
             the highest state appellate court or the United States supreme court
             establishing a constitutional right that was not recognized as existing at
             the time of trial;




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      (2)       The claim in the petition is based upon new scientific evidence
            establishing that the petitioner is actually innocent of the offense or
            offenses for which the petitioner was convicted; or

      (3)       The claim asserted in the petition seeks relief from a sentence that
            was enhanced because of a previous conviction and the conviction in the
            case in which the claim is asserted was not a guilty plea with an agreed
            sentence, and the previous conviction has subsequently been held to be
            invalid, in which case the petition must be filed within one (1) year of
            the finality of the ruling holding the previous conviction to be invalid.

Id. § 40-30-102(b)(1)-(3). In addition to the statutory exceptions, due process may
require tolling the statute of limitations in certain circumstances. See Burford v. State,
845 S.W.2d 204, 108 (Tenn. 1992) (“[D]ue process requires that potential litigants be
provided an opportunity for the presentation of claims at a meaningful time and in a
meaningful manner.”) (citing Long v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982)).
One basis upon which due process may require tolling is for periods of mental
incompetence. See Seals v. State, 23 S.W.3d 272 (Tenn. 2000); Watkins v. State, 903
S.W.2d 302 (Tenn. 1995).

        In State v. Nix, 40 S.W.3d 459, 463 (Tenn. 2001), our supreme court said, in the
context of a post-conviction petition alleging that due process tolled the statute of
limitations due to the petitioner’s mental incompetence, that “the mere assertion of a
psychological problem” was insufficient to establish a prima facie claim that the
limitations period should be tolled. The court said that the petition must include specific
factual allegations to support the tolling claim. Nix, 40 S.W.3d at 464. The court
explained:

      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). Cf. Van Tran v. State, 6
      S.W.3d 257, 268 (Tenn. 1999) (holding that unsupported assertions of
      incompetency to be executed are not sufficient to meet the required
      threshold showing); State v. Barnett, 909 S.W.2d 423, 431 (Tenn. 1995)
      (holding that unsupported assertions that expert services are needed are
      insufficient to entitle a defendant to a hearing). The required prima facie

                                             -4-
       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. See Tenn. Code Ann. §
       40-30-204(e) (“Affidavits, records or other evidence available to the
       petitioner supporting the allegations of the petition may be attached to it.”).
       Cf. Van Tran, 6 S.W.3d at 269 (holding that the required threshold showing
       to establish a genuine disputed issue regarding a prisoner’s competency to
       be executed may be met by submitting affidavits, depositions, medical
       reports, or other credible evidence). 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.

Nix, 40 S.W.3d at 464.

        When a court receives a post-conviction petition, it must conduct a preliminary
review to determine, among other matters, whether the petition is timely and whether it
states a colorable claim. T.C.A. § 40-30-106(b), (d) (2012). “If it plainly appears from
the face of the petition, any annexed exhibits or the prior proceedings in the case 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.” Id. § 40-3-106(b).

       The petition must contain a clear and specific statement of all grounds upon
       which relief is sought, including full disclosure of the factual basis of those
       grounds. A bare allegation that a constitutional right has been violated and
       mere conclusions of law shall not be sufficient to warrant further
       proceedings. Failure to state a factual basis for the grounds alleged shall
       result in immediate dismissal of the petition. If, however, the petition was
       filed pro se, the judge may enter an order stating that the petitioner must
       file an amended petition that complies with this section within fifteen (15)
       days or the petition will be dismissed.

Id. § 40-30-106(d); see Tenn. Sup. Ct. R. 28, § 5(E) (setting forth the required contents of
a post-conviction petition, including “specific facts supporting each claim for relief
asserted by petitioner”); Tenn. Sup. Ct. R. 28, § 5(F) (providing grounds for summary
dismissal of a post-conviction petition, including untimeliness, failure to include specific
factual allegations, and failure to include reasons why the claim is not barred by the

                                             -5-
statute of limitations). This court has said that whether to permit amendment is within
the trial court’s discretion. See Powell v. State, 8 S.W.3d 631, 633 (Tenn. Crim. App.
1998); see also Charles E. Orange v. State, No. M2011-01168-CCA-R3-PC, 2012 WL
1417252, at *3 (Tenn. Crim. App. Apr. 20, 2012); State v. Xavier C. Parks, No. W2007-
00142-CCA-R3-PC, 2008 WL 648937, at *2 (Tenn. Crim. App. Mar. 11, 2008), perm.
app. denied (Tenn. June 19, 2012). Our supreme court’s rules provide as follows:

       (4)(a) In the event the court concludes after the preliminary review that a
       colorable claim is not asserted by the petition, the court shall enter an order
       dismissing the petition or an order requiring that the petition be amended.

       (b) No pro se petition shall be dismissed for failure to follow the prescribed
       form until the court has given petitioner a reasonable opportunity to amend
       the petition with the assistance of counsel.

Tenn. Sup. Ct. R. 28, § 6(B)(4)(a)-(b). Subdivision (a) of Rule 28, section 6(B)(4) speaks
to the substance of the petition. If the substance is lacking, the petition may be
summarily dismissed. Subdivision (b) of Rule 28, section 6(B)(4) speaks to the form of
the petition. If the petition is merely lacking in form and was filed pro se, a post-
conviction court cannot dismiss it based upon a flaw in the form until the petitioner has
been given the opportunity to amend the petition with the assistance of counsel.

       In the present case, the post-conviction court dismissed the petition on two bases,
one related to substance and one related to form. Relative to the substance of the petition,
the court determined that the Petitioner failed to state a cognizable claim for due process
tolling of the statute of limitations. Relative to the form of the petition, the court
determined that the petition was unverified. We will consider these issues separately.

       Relative to the post-conviction court’s determination that the Petitioner failed to
allege facts that would entitle him to tolling of the statute of limitations on due process
grounds, the Petitioner contends in his brief that he has been unable to obtain his
documentation from the Social Security Administration. He also alleges that he has
received prescription “mental drugs” in prison. He argues that because his incarceration
prevents his access to the records that would support his tolling claim, the post-conviction
court should have appointed counsel to assist him.

       The Petitioner’s pro se petition is deficient in factual allegations to support his
claim that due process requires tolling the statute of limitations due to mental
incompetency. We note that Nix provides that documentary evidence attached to the
petition may assist in establishing the threshold showing of mental incompetency,

                                             -6-
although it is not essential. See Nix, 40 S.W.3d at 464. The Petitioner’s failure to
provide documentary evidence, standing alone, is not fatal to his claim. The more basic
flaw that exists is his failure to “include specific factual allegations that demonstrate the
petitioner’s inability to manage his personal affairs or understand his legal rights and
liabilities.” Id. He alleged that he had a mental illness, that he took medication, that
counsel was ineffective in failing to develop evidence related to the mental illness, that
the Petitioner did not understand the consequences of the guilty plea due to the mental
illness, and that the mental illness prevented the Petitioner from filing a timely post-
conviction petition. These allegations do not demonstrate a prima facie case that he was
unable to manage his personal affairs or unable to understand his legal rights and
liabilities. In the absence of factual allegations to support a claim for due process tolling,
we conclude that the court did not err in summarily dismissing the petition.

       We move to the post-conviction court’s finding that the petition was unverified
and its dismissal on this basis. As we have stated, our supreme court rules direct that a
post-conviction court shall not summarily dismiss a petition that is not in proper form
until the petitioner has been given the opportunity to amend the petition with the
assistance of counsel. Tenn. Sup. Ct. R. 28, § 6(B)(4)(b); see Anthony D. Forster v.
State, No. M2012-01641-CCA-R3-PC, 2013 WL 4033665, at *2-3 (Tenn. Crim. App.
Aug. 8, 2013) (concluding that the trial court erred in summarily dismissing a pro se post-
conviction petition, in part, because the petitioner failed to verify the petition under oath
and that the court should have allowed the petitioner to amend the petition with the
assistance of counsel); see also Christy S. Brown v. State, No. M2009-00506-CCA-R3-
PC, 2010 WL 759872, at *3 (Tenn. Crim. App. Mar. 5, 2010). We conclude that the
Petitioner’s failure to verify the pro se petition was not a proper basis for summary
dismissal. Because the Petitioner failed to allege adequate grounds for due process
tolling of the statute of limitations, however, the court nevertheless properly dismissed
the petition without appointing counsel or conducting a hearing.

        Finally, we address the Petitioner’s claim that the evidence of alleged misconduct
by a law enforcement officer was newly discovered evidence which became known to
him “just prior to” his filing his post-conviction petition. The Petitioner alleged in the
petition that he learned of the alleged misconduct shortly before he filed the petition. In
the petition, the Petitioner’s factual allegations relative to the alleged misconduct of the
law enforcement officer related to his claims of ineffective assistance of counsel in
failing to pursue certain defense strategies to discredit the officer and investigate the case
independently and to prosecutorial misconduct when “the district attorney’s office acted
in concert with the attorneys appointed to this Petitioner to keep the facts unknown to the
general public that [the officer] was planting evidence on the public at large.” He
contends in his appellate reply brief, however, that the alleged misconduct constituted

                                             -7-
“newly discovered evidence that may very well establish actual innocence for the
Petitioner.”

        We acknowledge that certain claims of newly discovered evidence in the form of
scientific evidence establishing the petitioner’s actual innocence of the conviction offense
are cognizable post-conviction claims and may require due process tolling of the statute
of limitations. See T.C.A. § 40-30-102(b)(2) (providing for tolling of the statute of
limitations for newly discovered scientific evidence that establishes the petitioner’s actual
innocence of the conviction offense). The Petitioner’s claim as stated in the petition,
however, is related to his allegation that a law enforcement officer had been relieved of
his duties for “fabricating and planting evidence in drug bust cases.” The Petitioner’s
claim is not one of newly discovered scientific evidence that might qualify for due
process tolling under section 40-30-102(b)(2).

       We note, as well, that the allegations were not raised in the post-conviction court
as free-standing claims of actual innocence, as might be cognizable in a petition for the
writ of error coram nobis. See id. § 40-26-105 (2012). The allegations are raised as
factual support for his ineffective assistance of counsel and prosecutorial misconduct
post-conviction claims.

      We conclude that the trial court did not err in determining that the petition was
untimely. We likewise conclude that the court properly summarily dismissed the post-
conviction petition.

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


                                             _____________________________________
                                              ROBERT H. MONTGOMERY, JR., JUDGE




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