        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                         Assigned on Briefs February 25, 2014

                JEFFREY D. MIREE v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Hamilton County
                      No. 286222     Barry A. Steelman, Judge




                  No. E2013-01930-CCA-R3-PC - Filed March 6, 2014


The petitioner, Jeffrey D. Miree, appeals the summary dismissal of his 2012 petition for post-
conviction relief from his 1990 conviction of first degree murder as time barred. Because
the petition was filed decades beyond the applicable statute of limitations and because the
petitioner failed to either allege or prove a statutory exception to the timely filing or a due
process tolling of the statute of limitations, we affirm the judgment of the post-conviction
court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which J OSEPH M.
T IPTON, P.J., and D. K ELLY T HOMAS, J R., J., joined.

Jeffrey D. Miree, Clifton, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; and Ahmed A. Safeeullah, Assistant
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

               On November 28, 1990, the petitioner entered pleas of guilty to one count of
especially aggravated robbery and one count of first degree murder, and the trial court
imposed concurrent sentences of 25 years and life imprisonment. The petitioner did not
appeal either the convictions or the sentence. On December 11, 2012, some 22 years after
the judgments in his case became final, the petitioner filed a petition for post-conviction
relief. In his petition, the petitioner alleged that he had been deprived of the effective
assistance of counsel and that, as a result of counsel’s deficient performance, his guilty pleas
were not knowingly or voluntarily entered. Specifically, he claimed that his trial counsel
erroneously informed him that he was eligible for a sentence of life without the possibility
of parole and that it was this misinformation that persuaded him to enter his guilty pleas.

             The post-conviction court summarily dismissed the petition, deeming it time
barred. The petitioner appeals, challenging the summary dismissal.

                 “[A] person in custody . . . must petition for post-conviction relief . . . within
one (1) year of the date of the final action of the highest state appellate court to which an
appeal is taken.” T.C.A. § 40-30-102(a) (2006). “If it plainly appears from the face of the
petition, . . . 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. The order shall state
the reason for the dismissal and the facts requiring dismissal.” Id. § 40-30-106(b). The
statute of limitations for filing a post-conviction petition is jurisdictional. See id. § 40-30-
102(b) (“No court shall have jurisdiction to consider a petition filed after the expiration of
the limitations period unless [certain statutory prerequisites are met].”). Our supreme court
has held that “the one-year statutory period is an element of the right to file a post-conviction
petition and that it is not an affirmative defense that must be asserted by the State.” State v.
Nix, 40 S.W.3d 459, 464 (Tenn. 2001). Thus, “it is incumbent upon a petitioner to include
allegations of fact in the petition establishing either timely filing or tolling of the statutory
period,” and the “[f]ailure to include sufficient factual allegations of either compliance with
the statute or [circumstances] requiring tolling will result in dismissal.” Id.

              A petition for post-conviction relief filed outside the one-year statute of
limitations may nevertheless be considered if its allegations fall within three rather narrow
exceptions:
               (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. Such 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 such petitioner is actually innocent of
               the offense or offenses for which the petitioner was convicted;
               or



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              (3) The claim asserted in the petition seeks relief from a
              sentence that was enhanced because of a previous conviction
              and such 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.


T.C.A. § 40-30-102(b)(1)-(3). Additionally, due process principles may, in very limited
circumstances, require tolling of the post-conviction statute of limitations. See generally
Seals v. State, 23 S.W.3d 272 (Tenn. 2000); Burford v. State, 845 S.W.2d 204 (Tenn. 1992).
To determine whether due process principles require tolling of the statute of limitations, we
must determine “when the limitations period would normally have begun to run”; “whether
the grounds for relief actually arose after the limitations period would normally have
commenced”; and “if the grounds are ‘later arising,’ determine if, under the facts of the case,
a strict application of the limitations period would effectively deny the petitioner a reasonable
opportunity to present the claim.” Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995).
                In this case, the petitioner challenged his 1990 convictions via a post-
conviction petition filed in 2012, decades after the judgments became final. The petitioner,
citing Miller v. Alabama, ___ U.S. ___, 132 S. Ct. 2455 (2012), appears to contend that his
case falls within the exception embodied in Code section 40-30-102(b)(1). In Miller, the
Supreme Court held that “[m]andatory life-without-parole sentences for juveniles violate the
Eighth Amendment” prohibition against cruel and unusual punishment. Miller v. Alabama,
132 S. Ct. 2455, 2464 (2012). Miller is wholly inapplicable to the petitioner’s case and
cannot, therefore, avail him of the right to petition for post-conviction relief more than 20
years too late. Tennessee does not now, and did not at the time of the petitioner’s guilty
pleas, have a provision for the mandatory imposition of a sentence of life without parole for
juvenile offenders convicted of first degree murder. Thus, no statutory grounds for tolling
the statute of limitations apply. Moreover, the petitioner does not claim that due process
principles require the tolling of the statute of limitations in this case, and the petitioner’s
claims for relief, involuntary pleas and deprivation of the effective assistance of counsel, are
not “later-arising” such that due process tolling would be appropriate.


                Accordingly, the judgment of the post-conviction court summarily dismissing
the petition is affirmed.


                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE

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