           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                            AT NASHVILLE
                            Assigned on Briefs January 19, 2012

                 MICHAEL SMYTHE v. STATE OF TENNESSEE

                    Appeal from the Circuit Court for Bedford County
                             No. 14142    Lee Russell, Judge


                No. M2011-01577-CCA-R3-PC - Filed February 10, 2012


The pro se petitioner, Michael Smythe, appeals the Bedford County Circuit Court’s summary
dismissal of his petition for post-conviction relief filed 14 years after the entry of his guilty-
pleaded convictions of aggravated robbery and aggravated assault for which he received
sentences of 17 years’ and 6 years’ incarceration. Discerning no error, we affirm the
judgment of the post-conviction court.

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

J AMES C URWOOD W ITT, JR., J., delivered the opinion of the Court, in which J ERRY L. S MITH
and C AMILLE R. M CM ULLEN, JJ., joined.

Michael Smythe, Clifton, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney
General; Charles Frank Crawford, Jr., District Attorney General; and Michael D. Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                            OPINION

               The record reflects that on May 19, 1997, the petitioner pleaded guilty in the
Bedford County Circuit Court to one count of aggravated robbery and one count of
aggravated assault and received sentences of 17 years’ and 6 years’ incarceration.1 On May
9, 2011, the petitioner filed a petition for post-conviction relief alleging that his convictions
violated double jeopardy principles. In support of tolling the statute of limitations, the
petitioner alleged that “the sentence has not started.” On June 3, 2011, the post-conviction


       1
          It is not apparent from the record whether the sentences were to be served consecutively or
concurrently.
court summarily dismissed the petition. The petitioner then sought a timely appeal to this
court.

               “[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). 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

               (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

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              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).

              The petitioner filed his petition for post-conviction relief almost 14 years after
the judgment became final in his case – well beyond the one-year statute of limitations. No
statutory basis exists to excuse the untimely filing. See T.C.A. § 40-30-102(b)(1)-(3).
Furthermore, the petition contains no factual basis to afford due process tolling of the statute
of limitations. See Nix, 40 S.W.3d at 464. Accordingly, we affirm the post-conviction
court’s order summarily dismissing the petition.

                                                    _________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE




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