            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                  AT KNOXVILLE
                                                             FILED
                                                              January 6, 1999
                              NOVEMBER 1998 SESSION
                                                            Cecil Crowson, Jr.
                                                             Appe llate Court C lerk

JOHN PAUL SEALS,                        )
                                        )
               Appellant,               )       C.C.A. No. 03C01-9802-CC-00050
                                        )
vs.                                     )       Hamblen County
                                        )
STATE OF TENNESSEE,                     )       Hon. James E. Beckner, Judge
                                        )
                Appellee.               )       (Post-Conviction)




FOR THE APPELLANT:                              FOR THE APPELLEE:

JOHN PAUL SEALS                                 JOHN KNOX WALKUP
Pro Se                                  Attorney General & Reporter
RMSI, Unit 4, B-108
7475 Cockrill Bend Ind. Rd.             ELLEN H. POLLACK
Nashville, TN 37209-1010                Assistant Attorney General
                                                425 Fifth Ave. N., 2d Floor
                                                Nashville, TN 37243-0493

                                                C. BERKELEY BELL, JR.
                                                District Attorney General
                                                109 S. Main St., Ste. 501
                                                Greeneville, TN 37743




OPINION FILED:________________

REVERSED & REMANDED

JAMES CURWOOD WITT, JR., JUDGE
                                              OPINION

                  The petitioner, John Paul Seals, appeals the Hamblen County Crim Court's
                                                                                  inal

summarydismissal of hispetitionfor post-convictionrelief. Seals pleaded guilty to first degree murder

on December 12, 1988, thereby avoiding the deathpenalty and gaining alife sentence. On February

25, 1994, he filed a pro se petition for w of habeas corpus, or in the alternative, post-conviction
                                          rit

relief. John Paul Seals v. State, No. 03C01-9409-CR-00319 (Tenn. Crim. App., Knoxville, Feb. 22,

1995), perm app. denied (Tenn. 1995). That petition was dismissed in the trial court as barred by the

statute of limitations, a decision which we affirmed and the suprem court declined to review. John
                                                                   e

Paul Seals, slip op. at 2. On January 7, 1998, Seals, along with a "next friend,"1 filed the present

petition alleging several constitutional claim Seals alleged that his claims should not be barred by
                                              s.

the statute of limitations because of his continuous mental incompetence predating the commission

of the conviction offense. H also alleged that his claim were not waived or previously determined
                            e                           s

by his first petition because that petition was filed by someone other than himself. In a summary

order, the trial court found that the present petition was barred by the statute of limitations and that

a post-convictionpetitionhad been previouslypresented anddetermined. Having reviewed the record

and the briefs of the parties, we find that the petition shouldnot have been summarily dismissed, and

we reverse and remand for further proceedings thereon.



                  In his petition, Seals raises numerous allegations of defects in the proceedings which

culminated in his conviction. Theallegations are detailed, and for the m part, supported by specific
                                                                        ost

factual assertions. Seals requests the appointment of counsel to assist himin presenting his claims

to the trial court.



                  Thelower court dismissed the petitionat the preliminary stage. SeeTenn. Code Ann.

§ 40-30-206(a)-(f) (1997). At this juncture, it is the office of the trial court to assume the veracity of


         1
        See Tenn. R. Civ. P. 17.03 (incom    petent person proceeding through next friend). But
see R. Sup. Ct. 28, § 3(B) (Rules of Civil Procedure generally not applicable to post-conviction
proceedings).

                                                    2
the petition in order to determ whether a colorable claim is stated; the court is to refrain from
                               ine

examining and adjudicating the factual meritsof the allegations. SeeTenn. Code Ann. § 40-30-206(f)

(1997); Tenn. R. Sup. Ct. 28, § 6(B)(2).



                                                  I

                  The first question presented is whether, under the Post-Conviction ProcedureAct of

1995, mental incompetence tolls the statute of limitations. The Act provides a one-year statue of

limitations.2 Tenn. Code Ann. § 40-30-202(a) (1997). Limited exceptions are prescribed; however,

no exception addresses the effect of mental incompetenceonthelimitationsperiod. See Tenn. Code

Ann. § 40-30-202(b) (1997). The Act further provides, "The statute of limitations shall not be tolled

for any reason, including any tolling or saving provision otherwise available at law or equity." Tenn.

Code Ann. § 40-30-202(a) (1997).



                  These provisions notwithstanding, Seals argues that Watkins v. State, 903 S.W.2d

302 (1995), provides relief fromthestatuteof limitationsin the case of mental incompetency. Watkins

arose under the previous post-conviction statute, which contained a three-year statute of limitations



        2
            The entire provision related to the statute of limitations provides:

        (a) Except as provided in subsections (b) and (c), a person in
        custody under a sentence of a court of this state must petition for
        post-conviction relief under this part 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 such
        petition shall be barred. 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 such an 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.

Tenn. Code Ann. § 40-30-202(a) (1997).

                                                  3
and no "anti-tolling" provision. See generallyTenn. Code Ann. § 40-30-101 to -124 (1990) (repealed

1995). In Watkins, our state's highest court held that the saving statute found at Code section 28-1-

106 operated to toll the statute of limitations where the post-conviction petitioner was "at the tim the
                                                                                                    e

cause of action accrued . . . of unsound m . . . ." Watkins, 903 S.W.2d at 304-05 (quoting Tenn.
                                          ind

Code Ann. § 28-1-106 (1980)).



                 More significantly for the petitioner at bar, the Watkins court's analysis did not end

there. It went on to hold that even in the absence of the savings statute, due process would be

offended by application of the statute of limitations in the case of mental incompetence. Watkins, 903

S.W at 305-06. In so holding, the court employed the principles of Burford v. State, 845 S.W
   .2d                                                                                      .2d

204 (Tenn. 1992), and found that the petitioner's private interest in mounting a constitutional attack

to his conviction outweighed the governmental interest in promoting fairness andfinality. Watkins, 903

S.W.2d at 306-07. Put another way, the state's application of the statute of limitations to a post-

conviction petitioner who was mentally incompetent throughout the limitations period denied him "a

fair and reasonable opportunity" topresent his claim. Watkins, 903 S.W.2d at 307. Accordingly, due

process required that such a petitioner be afforded a reasonable opportunity to assert his claim.



                 Under the 1995 Act, the "anti-tolling" provision defeats the operation of the savings

statute. See Tenn. Code Ann. § 40-30-202(a) (1997) ("anti-tolling"); Tenn. Code Ann. § 28-1-106

(1980) (savings). However, the "anti-tolling" provision has no operation against constitutional

principles. Vikki Lynn Spellman v. State, No. 02C01-9801-CC-00036, slip op. at 4 (Tenn. Crim. App.,

Jackson, Aug. 21, 1998), pet. for perm. app. filed (Tenn. Oct. 21, 1998). Thus, the portion of the

Watkins holding which recognizes a due process right to tolling of the statute of limitations remains

viable in the face of the Post-Conviction Procedure Act of 1995. Vikki Lynn Spellman, slip op. at 4.

Accordingly, Seals's petition m be evaluated consistently with the holding of Watkins.
                               ust



                 The petitionalleges that Seals "has never been competent in this cause to raise any


                                                   4
of his claims for relief, nor w petitioner psychologically sound at the time of his conviction and
                               as

sentence." The petition further alleges that he suffers from "psychological and neurological brain

damage" and has a history of mental illness in his family which is documented by the records of the

Cherokee Mental Health Center. The petition also alleges Seals has sustained numerous head

injuries, has a childhood history of abusing inhalants, experiences "radical mood and delusional

disorders, extreme depression, loss of mem . . . inability to recall even recent events, displays poor
                                          ory

judgment, and has difficulty with thinking abstractly." The petition further alleges that Seals's trial

counsel submitteda swornmotion for mental evaluation of Seals in which counsel alleged that Seals

did not appear to understand the seriousness of the charged crim the possible penalty, and the
                                                                e,

wrongfulness and severity of his alleged conduct. Further, counsel alleged that Seals "appears . . .

to be different persons, in his thought process at different points in tim 3
                                                                          e."



                 The trial court's initial review of the petition was pursuant to Code section 40-30-206,

which provides that the trial court shall consider the factual allegations to be true in determining

whether thepetitionshall be dismissed. SeeTenn. Code Ann. § 40-30-206(f) (1997). Contrary to the

argument of the state that Seals's claim was properly dismissed because he offered no proof other

than his own "unsupported assertions," the petitioner is not to be disbelieved simply because he has

offered no evidence other than his own allegations at this preliminary stage of the pleadings.4 Of

course, the petitioner is required to m a "full disclosure of the factual basis" of the grounds for
                                       ake

relief, and the lower court must exam the allegations of fact prior to the presentation of proof at a
                                     ine

hearing. Tenn. Code Ann.§ 40-30-206(d), (f) (1997). However, a petitioner cannot be expected to




        3
         A copy of the motion is attached to the petition as an exhibit. Its content
is as alleged in the petition. Neither the record of this appeal nor the appellate
record of Seals's prior post-conviction action reveal whether this motion was ever
ruled upon. Seals alleges, however, that trial counsel "took no further action to
have petitioner properly evaluated."
        4
       Furthermore, the state's assertion is incorrect. As discussed above,
Seals attached an exhibit which corroborated his allegation that his trial counsel
sought a mental evaluation due to counsel's concerns about Seals's mental
competency.

                                                   5
present proof prior to being given the opportunity to do so.



                 In this case, Seals has alleged facts, which if taken as true, establish that thestatute

of limitations should not be applied to bar his petition. He claims he has been mentally incompetent

for the entire period during which the statute of limitations otherwise would have provided for bringing

his claim. He has alleged specific mental conditions which he says have rendered him mentally

incompetent. Although this is arguably a close case with respect to the sufficiency of the allegations,

we hold that as a matter of preliminary consideration, Seals's allegations are sufficient to save his

petition fromsummary dismissal based upon untimeliness. See Vikki Lynn Spellman, slip op. at 6

(remand for further findings on tolling of statute of limitations appropriate because petitioner made

more than "m conclusory allegations of incompetence").
            ere



                 We take this opportunity to note that due to the nature of a claim of mental

incompetency, a post-conviction petitioner seeking relief fromthestatuteof limitations bears a heavy

initial burden in stating "a clear and specific statem of all grounds upon which relief is sought,
                                                      ent

including full disclosureof the factual basis of those grounds." See Tenn. Code Ann. § 40-30-206(d)

(1997). The petitioner in the case at bar, like the petitioners in Watkins and Vikki Lynn Spellman,

alleged in his otherwise untimely post-conviction petition not only specific symptoms of mental

incompetence but also pre-existing events or circumstances that serve as independent indicia of

incompetence. In Watkins, the state “acknowledged that the first petition was dismissed without

prejudice because the petitioner was mentally incompetent,” and moreover, Watkins had been

continuously serving his Department of Correction sentence as an inmate in the Department’s Lois

M. DeBerry Special Needs Facility. Watkins, 903 S.W.2d at 302. In Vikki Lynn Spellman, a pretrial

mental evaluation had been ordered, and although the evaluation report deemed Spellmancompetent

to standtrial and opinedthat aninsanity defense could not be supported, “it recommended ‘outpatient

supportive counseling’” at the local mental health center. Vikki Lynn Spellman, slip op. at 5.

Additionally, and significantly, Spellman had been placed for treatment in the DeBerry facility by the


                                                   6
Departm before her first post-conviction petition was filed. Vikki Lynn Spellman, slip op. at 5. In
       ent

the present case, trial counsel filed a pretrial motion for a mental evaluation. The petition alleges that

the petitioner and/or his family has a documented treatment history at the local mental health center.

These allegations of pre-existing indicia of mental incompetence are buttressed in the petition by

specifically articulated allegations of mental illness.



                 Furthermore, we recognize that the state may ultimately prevail on its

statute of limitations argument. Seals has surpassed the threshold for summary

dismissal; he has not proven his claim. The burden remains on him to establish that

he was mentally incompetent as alleged in his petition. On remand, the trial court

shall afford the petitioner and the state the opportunity to present evidence on the

petitioner's mental capacity as it relates to the statute of limitations. If the petitioner carries

his burden of proving facts which require tolling the statute of limitations due to mental incompetence,

then the trial court shall proceed to the merits of the constitutional issues presented in the petition.

On the other hand, if the petitioner does not carry his burden of proving mental incompetence as

regards the statute of limitations, the trial court shall dismiss the petition as untimely. Accord Curtis

Watkins v. State, No. 02C01-9209-CR-00212 (Tenn. Crim. App., Jackson, Nov. 3, 1993) (opinion on

petition for rehearing) (post-convictionpetitionremanded for determinationof petitioner's competence

during limitations period), aff'd, 903 S.W 302 (1995).
                                          .2d



                                                    II

                 The second question is whether the trial court's dismissal was nevertheless proper

because the petition was not Seals's first.5




        5
         Seals alleges he should not be bound by his first petition because it was
filed by someone other than himself. However, as discussed above, we believe
a better rationale for overcoming the "one petition bar" is found in the language
of the statute itself.

                                                    7
                 The Post-Conviction Procedure Act of 1995

        contemplates the filing of only one (1) petition for post-conviction relief. In no event
        may more than one (1) petition for post-conviction relief be filed attacking a single
        judgment. If a prior petition has been filed which was resolved on the merits by
        a court of com  petent jurisdiction, any second or subsequent petition shall be
        summ dismissed.6
             arily

Tenn. Code Ann. § 40-30-202(c) (1997) (emphasis added).



                 In Seals's previous post-conviction proceeding, his petition was dismissed based

upon the statute of limitations. See generally John Paul Seals. Thus, the first petition was not

"resolved on the merits." In this situation, section 40-30-202(c) does not mandate that the instant

petition be summ dismissed. See Vikki Lynn Spellman (petitioner allowedfurther proceedings on
                arily

second petition for post-conviction relief where she alleged first petition was withdrawn becauseof her

psychological condition);cf.,e.g., Robert LeeTaylor v. State, No. 02C01-9805-CC-00161 (Tenn. Crim.

App., Jackson, Aug. 12, 1998) (Rule20order dismissingpost-convictionpetitionunder §40-30-202(c)

because previous petition had been determined "on the merits"). The trial court should not have

dismissed the petition based upon C section 40-30-202(c).
                                   ode



                 The trial court's dismissal of Seals's petitionis reversed. The matter is remanded to

the trial court for the appointment of counsel and for further proceedings consistent with this opinion.7




                                                    ________________________________
                                                    JAMES CURWOOD WITT, JR., JUDGE


        6
         The Act does provide for reopening of a previously filed petition in certain circumstances,
none of which afford relief to the petitioner before us. See Tenn. Code Ann. § 40-30-217 (1997).
        7
        In a motion to remand filed in this court and in supplemental briefing,
Seals has raised additional legal and factual allegations challenging the firmness
of his conviction. None of these allegations address the statute of limitations and
previous determination issues presented in this appeal. Therefore, we express
no opinion other than that consideration of these allegations is necessary only if
(1) the petition is determined to be timely and (2) the allegations are properly
presented to the trial court in colorable form.

                                                   8
CONCUR:




_______________________________
DAVID H. WELLES, JUDGE



_______________________________
L.T. LAFFERTY, SPECIAL JUDGE




                                  9
