                                                                                            11/02/2018
            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                        Assigned on Briefs September 26, 2018

             ALEXANDER R. CARINO v. STATE OF TENNESSEE
                 Appeal from the Criminal Court for Cumberland County
                        No. 09-0016A     David Patterson, Judge



                               No. E2018-00775-CCA-R3-PC
                         _____________________________

The Petitioner, Alexander R. Carino, pleaded guilty to two counts of second degree
murder, and the trial court sentenced him to forty-three years of incarceration. The
Petitioner did not appeal his convictions and did not file a timely post-conviction petition.
The Petitioner filed a petition for habeas corpus relief, which the habeas corpus court
summarily dismissed. This court affirmed. Alexander R. Carino v. State, M2017-00345-
CCA-R3-CD, 2017 WL 3311196, at *1 (Tenn. Crim. App., at Nashville, Aug. 3, 2017),
perm. app. denied (Tenn. Nov. 17, 2017). The Petitioner filed an untimely petition for
post-conviction relief, which the post-conviction court summarily dismissed. On appeal,
the Petitioner contends that the post-conviction court erred and should have waived the
statute of limitations because his trial counsel did not give him his case file to prepare the
petition and because he had been denied access to the prison legal library, thereby
delaying the filing of his petition. After review, we affirm the post-conviction court’s
judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which JAMES
CURWOOD WITT, JR., and ROBERT L. HOLLOWAY, JR.., JJ., joined.

Alexander R. Carino, Hartsville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel;
Bryant C. Dunaway, District Attorney General; and Phillip Hatch, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION
                                         I. Facts
                                  A. Procedural History
       This case arises from the Petitioner and two co-defendants’ breaking and entering
into the home of Keith Patton to commit robbery. Mr. Patton and his guest William
Asher were both killed. One of the Petitioner’s co-defendants took his case to trial,
during which the State presented evidence against all the co-defendants. We briefly
discuss the facts presented against the defendant in his co-defendant’s case.

        Tyler Rhinehart testified that two men armed with AK-47 assault rifles and
wearing black masks entered Mr. Patton’s home on November 7, 2008, while he and
others were present in the home. The two men began shooting at the unarmed group, and
both Mr. Patton and Mr. Asher were shot. Mr. Rhinehart saw a third man look into the
house, and the shooters told him to exit and “watch out.” Shortly thereafter, some of Mr.
Patton’s friends arrived, and the three shooters left in a black car with round stacked tail
lights, similar to one of the co-defendant’s friend’s Kia vehicle. 911 was called, but Mr.
Patton and Mr. Asher died as a result of their injuries.

       Joshua Hutson, the third man involved in the robbery, testified as follows:

       Hutson said that he and [the Petitioner] discussed the potential of
       committing a robbery and that he agreed to participate. Hutson recalled
       that, on November 7, 2008, he spent most of the day at home. In the
       evening, his girlfriend at the time, Anna Claire Daniels, drove him to meet
       [co-defendant Cofer] and [the Petitioner] at a Taco Bell in Oak Ridge,
       Tennessee. Hutson said [the Petitioner] drove the three men in a “dark
       colored four door Kia” to Cumberland County. . . .

              Hutson testified that, on the way to Cumberland County, the men
       stopped at [co-defendant Cofer’s] home for [co-defendant Cofer] to retrieve
       black clothing. [Co-defendant Cofer] also purchased gloves at a gas station
       for [himself] and Hutson. Hutson said that all of the men dressed similarly,
       although Hutson’s mask had a camouflage pattern covering the bottom
       portion of the mask. Once the men arrived in Cumberland County, they
       drove down Highway 70 looking for the “right home.” [The Petitioner]
       was not sure which home was Patton’s, so he called Amanda Spence, who
       knew the location of Patton’s home, but she did not answer her phone.

              Eventually, Spence returned [the Petitioner’s] call, and the men
       drove to Spence’s home. Hutson said that he had only met Spence one time
       previously. Hutson recalled that [the Petitioner], [co-defendant Cofer],
       Spence, and a friend of Spence’s were all present when they discussed the
       robbery. Spence provided the men with a diagram of the layout of the
       residence. Spence then went with the men to “scout[ ] the place out.”
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      Hutson said they had guns in a bag in the trunk of the Kia. After returning
      to Spence’s house, Hutson took the driver’s seat and drove the men to
      Patton’s home where he stopped in front of the neighbor’s driveway. [Co-
      defendant Cofer] and [the Petitioner] got out of the Kia with guns and
      walked toward the residence, while Hutson drove down the street and then
      back past Patton’s home, ultimately parking in the driveway.

             Hutson testified that, before [the Petitioner] and [co-defendant
      Cofer] went into Patton’s home, he and [the Petitioner] placed their cellular
      phones and keys in the glove compartment of the Kia. The State produced,
      and Hutson identified, both his and [the Petitioner’s] cellular phones.
      Hutson recalled that, after he parked in Patton’s driveway, he got out and
      walked around to the front of the car. [The Petitioner] instructed Hutson to
      turn off the headlights, and Hutson did so. Hutson said that [the Petitioner]
      was standing at the corner of the house closest to the door while [co-
      defendant Cofer] was on the other corner. [The Petitioner] entered the
      house first, carrying an assault rifle, and then [co-defendant Cofer] entered,
      carrying a handgun. Hutson said that he stood beside the driver’s side door
      as the men entered the home. Almost immediately, Hutson heard “rapid
      gunshots,” so he reached in the glove compartment, grabbed the cellular
      phones and keys, and ran to the front porch. When he looked in the
      residence he saw someone sitting on the couch “that stared directly back at
      [him],” a man lying on the floor, and [co-defendant Cofer] standing with
      the pistol drawn. [Co-defendant Cofer] told Hutson to “keep a lookout,” so
      Hutson ran back to the driveway. Within a minute, another car pulled into
      Patton’s driveway, and Hutson fled.

State v. Cody Cofer, E2011-00727-CCA-R3-CD, 2012 WL 3555310, at *4 (Tenn. Crim.
App., at Knoxville, Aug. 20, 2012), perm. app. denied (Tenn. Dec. 10, 2012).

       Amanda Spence, a co-defendant, testified that the Petitioner was her drug dealer
and that she was present when he said that he wanted to rob someone. She also
participated in relaying information to and from the Petitioner about robbing Patton. The
Petitioner went to Ms. Spence’s home in a black Kia with co-defendants Cofer and
Hutson on November 7, 2008, and she gave them directions to Patton’s home. Before
leaving, the Petitioner brought a bag of guns into her home. The men left her home,
returned to get the guns, and then co-defendant Cofer called her later. Co-defendant
Cofer was panicked because things had not gone as planned. Ms. Spence left her
residence to go find co-defendant Hutson and drove by the Pattons’ home where she saw
emergency responders and police arresting co-defendant Hutson. Law enforcement
officers arrested Ms. Spence the following day.
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       Law enforcement officers found the two weapons involved in the shooting in the
Clinch River. Based upon witness interviews, phone records, text messages, ballistics
testing, and evidence found during the execution of search warrants, the three men were
arrested.

       A Cumberland County Grand Jury indicted the Petitioner and his co-defendants
for two counts of first degree felony murder committed “during the attempted
perpetration of an especially aggravated robbery” and one count of especially aggravated
robbery. On July 19, 2010, the Petitioner pleaded guilty to two counts of second degree
murder, and he received consecutive sentences of twenty-one years and six months’
confinement at 100% service. The especially aggravated robbery charge was dismissed
upon the Petitioner’s pleading guilty to two counts of second degree murder. The
Petitioner did not timely seek appellate or post-conviction relief.

                                  B. Habeas Corpus

       The Petitioner filed a petition for a writ of habeas corpus, and the habeas court
summarily dismissed the petition. In our opinion affirming the habeas court’s judgment,
we stated:

             The Petitioner filed the instant petition for habeas corpus relief,
      alleging that his convictions were void because the trial court lacked
      jurisdiction to enter judgments against him. He argued that the trial court
      did not have jurisdiction to enter judgments for second degree murder
      without the prosecution’s obtaining an indictment from the grand jury for
      second degree murder. He also argued that the first degree felony murder
      charges alleged attempted especially aggravated robbery as a predicate
      felony, which is not enumerated in the felony murder statute, and that
      because the independent especially aggravated robbery charge was
      dismissed the court was deprived of jurisdiction to enter judgments relative
      to the homicides. The Petitioner also argued that he did not knowingly and
      voluntarily waive the trial court’s jurisdiction.

             The habeas corpus court summarily denied relief after reviewing the
      petition and indictment. The court determined that the Petitioner’s
      arguments were without merit and unsupported by the law. The court
      found that the Petitioner’s allegations were “devoid of any support
      questioning the trial court’s jurisdiction to act.” The habeas corpus court
      determined that the trial court “clearly had jurisdiction” and that the
      judgments were not void.
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Carino, 2017 WL 3311196, at *1. This court affirmed the habeas corpus court’s
summary dismissal of the petition. Id.

                                C. Post-Conviction Facts

        The Petitioner filed this untimely petition for post-conviction relief on February 6,
2018. In it, he contended that the one-year statute of limitations should not apply to him
because his trial counsel (“Counsel”) had not given him his case file until a month before
his filing and because he had been kept in administrative segregation with no access to
the law library for much of his incarceration.

       The post-conviction court summarily dismissed the petition. In it, the court found:

   1. On July 16, 2010, the Petitioner entered pleas to two (2) second degree
      murder counts and received an agreed, aggregate sentence of forty-three
      (43) years.
   2. The judgments memorializing these convictions were signed by the Court
      on July 16, 2010 and filed with the Clerk on July 19, 2010.
   3. The “Petition for Relief from Conviction or Sentence” was signed by the
      incarcerated Petitioner on February 6, 2018. The Petitioner’s affidavit of
      indigency was notarized on March 9, 2018. The “Petition” was filed by the
      Clerk on March 22, 2018.
   4. No appeal was taken challenging the convictions in the trial court, the
      Court of Criminal Appeals, nor the Supreme Court.
   5. Two (2) habeas corpus petitions have been filed by the Petitioner and may
      (or may not) presently be pending; one in the Trousdale County Circuit
      Court filed on January 13, 2017, the other in the U.S. District Court Middle
      District Tennessee filed on January 11, 2018.
      Thus, the Court further finds that the “Petition” is filed beyond one (1) year
      of the date the judgments became final.
      Following a thorough review of the “Petition” and the record, with
      consideration of T.C.A. § 40-30-102(b), the Court concludes that the
      claim[s] in the “Petition” do not give the Court jurisdiction to consider the
      “Petition” due to its late filing.

It is from this judgment that the Petitioner now appeals.

                                        II. Analysis

       On appeal, the Petitioner contends that the post-conviction court should have
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allowed a late filing of his petition. In furtherance of this contention, he asserts that his
delay was caused by Counsel’s “refus[ing]” to appeal his case and failing to give him his
case file. The Petitioner said that he wrote to his attorney repeatedly, filed a bar
complaint, and still Counsel did not mail him the case file until January 18, 2018. He
asks that the statute of limitations for his post-conviction petition be tolled so that he may
pursue his petition. The State counters that the post-conviction court correctly found that
the Petitioner had not proven that he was pursuing his rights diligently during the seven-
year delay. We agree with the State.

       Under the Post-Conviction Procedure Act, a claim for post-conviction relief must
be 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, or consideration of the petition shall be barred.”
T.C.A. § 40-30-102(a) (2014). The statute goes on to state:

       The statute of limitations shall not be tolled for any reason, including any
       tolling or saving provision otherwise available at law or equity. Time is of
       the essence of the right to file a petition for post-conviction relief or motion
       to reopen established by this chapter, and the one-year limitations period is
       an element of the right to file the action and is a condition upon its exercise.
       Except as specifically provided in subsections (b) and (c), the right to file a
       petition for post-conviction relief or a motion to reopen under this chapter
       shall be extinguished upon the expiration of the limitations period.

Pursuant to subsection (b) of that statute, “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;

              (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
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       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.

T.C.A. 40-30-102(b) (2014)

       The post-conviction statute contains a specific anti-tolling provision, and none of
the three narrow exceptions under which an untimely petition may be considered is
applicable in this case.

        While the statutory exceptions are not met, due process can require the tolling of
the statute of limitations in some circumstances. See Whitehead v. State, 402 S.W.3d
615, 622-23 (Tenn. 2013).          In Whitehead our supreme court identified three
circumstances under which due process requires tolling of the post-conviction statute of
limitations: (1) when a claim for relief arises after the statute of limitations has expired;
(2) when a petitioner is prevented by his or her mental incompetence from complying
with the statute’s deadline; and (3) when attorney misconduct necessitates the tolling of
the statute.

       The Whitehead court went on to state:

               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, 130 S.
       Ct. at 2562. 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, 132 S. Ct. at 923; 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
                                             7
       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)).

        In the case presently before us, there is some evidence that the Petitioner wrote to
Counsel asking for his case file. The Petitioner’s case file is not a condition precedent to
his filing of his petition for post-conviction relief. That being said, the Petitioner’s statute
of limitations expired in August of 2011. The Petitioner’s infrequent letters to Counsel
regarding his case file do not show that he was pursuing his rights diligently for the seven
years between the time his judgment became final and when he filed his petition for post-
conviction relief. We conclude that the post-conviction court did not err when it
determined that the statute of limitations should not be tolled.

       As further support for our holding, we note that our supreme court has stated that:

               As one court explains, “any resort to [equitable tolling] must be
       reserved for those rare instances where—due to circumstances external to
       the party’s own conduct—it would be unconscionable to enforce the
       limitation period against the party and gross injustice would result.” Harris
       v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000). The Alabama Supreme
       Court has also noted that “the threshold necessary to trigger equitable
       tolling is very high, lest the exceptions swallow the rule.” Ex parte Ward,
       46 So.3d 888, 897 (Ala. 2007) (quoting United States v. Marcello, 212 F.3d
       1005, 1010 (7th Cir. 2000)). This is especially true in Tennessee, where
       our General Assembly has expressed its clear intention that the post-
       conviction filing deadline be construed as strictly as possible. See also
       Sanchez v. State, 816 N.W.2d 550, 561 n. 10 (Minn. 2012) (collecting cases
       from states that recognize equitable tolling in post-conviction actions and
       concluding that “[w]e have not found any state that applies a test less
       stringent than the federal Holland test in the context of post-conviction
       relief”).

Whitehead v. State, 402 S.W.3d 615, 632 (Tenn. 2013).

        This case, wherein the Petitioner pleaded guilty and in subsequent filings
maintained his guilt but asked for a lesser sentence, is not one where due process requires
the tolling of the statute of limitations. We, therefore, conclude that the post-conviction
court properly dismissed the petition as time-barred.

                                       III. Conclusion

                                               8
      In accordance with the foregoing reasoning and authorities, we affirm the post-
conviction court’s judgment.

                                             _________________________________
                                             ROBERT W. WEDEMEYER, JUDGE




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