        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                              Assigned on Briefs April 1, 2014

              ROBERT LEWIS WEBB V. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                     No. 03-07591 James C. Beasley, Jr., Judge




               No. W2013-01250-CCA-R3-PC - Filed August 27, 2014




Pursuant to the terms of a negotiated plea agreement, Petitioner, Robert Lewis Webb, pled
guilty to first-degree murder, aggravated rape, aggravated burglary, and aggravated robbery,
and was sentenced to an effective life sentence without the possibility of parole. Petitioner
subsequently filed an untimely pro se petition for post-conviction relief. He asserted, among
other things, that the guilty plea was involuntary. Appointed counsel filed an amended
petition, alleging that the statute of limitations should be tolled due to a new constitutional
ruling, Petitioner’s mental incompetence, and misconduct on the part of Petitioner’s trial
attorney. The post-conviction court dismissed the petition without an evidentiary hearing.
Petitioner appealed. The State concedes that Petitioner is entitled to a hearing on whether
the statute of limitations should be tolled. We determine that the post-conviction court erred
by summarily dismissing the petition without an evidentiary hearing to determine whether
due process requires that the statute of limitations be tolled. Accordingly, we reverse and
remand for further proceedings consistent with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court is Reversed and
                                    Remanded.

J ERRY L. S MITH, J., delivered the opinion of the court, in which N ORMA M CG EE O GLE and
D. K ELLY T HOMAS, J R., JJ., joined.

Lance Randall Chism, Memphis, Tennessee, for the appellant, Robert Lewis Webb.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel E. Willis, Senior Counsel;
Amy P. Weirich, District Attorney General; and Alana Dwyer, Assistant District Attorney
General, for the appellee, State of Tennessee.
                                           OPINION

                                     Factual Background

        On November 4, 2003, Petitioner was indicted by the Shelby County Grand Jury for
first-degree premeditated murder, first-degree felony murder, aggravated rape, aggravated
burglary, and aggravated robbery. On November 30, 2005, Petitioner agreed to plead guilty
to felony murder, aggravated rape, aggravated burglary, and aggravated robbery. Pursuant
to the negotiated plea agreement, Petitioner was sentenced to an effective life sentence
without the possibility of parole.

        On November 14, 2011, Petitioner filed a pro se petition for post-conviction relief
alleging that his guilty plea was involuntary, that his confession was coerced, that his trial
counsel was ineffective, and that he possessed newly discovered evidence. On November
22, 2011, counsel was appointed to represent Petitioner. Counsel filed an amended petition
for post-conviction relief, claiming that the ruling in Coleman v. State, 341 S.W.3d 221
(Tenn. 2011), constituted a new rule of constitutional law that should be applied retroactively
to Petitioner’s case.1 The State responded that the decision in Coleman did not establish a
new rule of law that would entitle Petitioner to toll the statute of limitations. The State also
asserted that Coleman only applied to death penalty cases.

       On March 8, 2013, Petitioner filed an additional pleading in response to the State’s
motion to dismiss, asserting that the post-conviction statute of limitations should be tolled
because he was mentally incompetent during the time that the petition should have been filed.
Petitioner supported these claims with numerous affidavits and documents from medical
professionals showing that Petitioner was borderline intellectually functioning, had paranoid
schizophrenia, was unable to read and write, and had an overall lack of understanding of the
law and the legal system.

      On April 5, 2013, Petitioner filed a “Notice of Supplemental Authority,” arguing that
Whitehead v. State, 402 S.W.3d 615 (Tenn. 2013), should be applied to his case to toll the




         1
           Coleman v. State addressed the issue of determining whether a person sentenced to death
is intellectually disabled and thus immune from execution under Tennessee Code Annotated section
39-13-203, holding that courts are not limited to raw test scores on I.Q. tests but may consider
competent expert testimony that the score may be inflated or deflated. Coleman, 341 S.W.3d at 224.

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statute of limitations.2 Specifically, Petitioner alleged that trial counsel improperly advised
him that he “may be able to get back into court because there may be a change in the law”
and failed to advise him about his right to seek post-conviction relief.

       On April 19, 2013, the post-conviction court dismissed the petition without an
evidentiary hearing. The post-conviction court ruled that Coleman did not establish a new
rule of constitutional law and was not applicable to Petitioner’s case because it “only
addressed issues of intellectual disability that arise in the penalty phase of a death penalty
case.” Additionally, the court held Petitioner’s “obvious” mental health disabilities did not
render him incompetent for due process purposes. Finally, the post-conviction court ruled
that Petitioner was not entitled to due process tolling pursuant to Whitehead because “there
was a negotiated guilty plea, no false or improper information provided to [P]etitioner by trial
counsel and there is nothing to indicate a valid due process violation of his rights.” Petitioner
timely filed a notice of appeal.

                                            Analysis

                                       I. Coleman v. State
        Under the Post-Conviction Procedure Act, relief is available when a conviction “is
void or voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A petition for
post-conviction relief must be filed within one year of the date on which the judgment
became final if no direct appeal was taken. T.C.A. §40-30-102(a). Our legislature
emphasized the fact that “[t]ime is of the essence of the right to file a petition for
post-conviction relief,” id., and provided only three narrow exceptions to the statute of
limitations: (1) a final ruling by an appellate court announcing a new constitutional rule with
retrospective application; (2) new scientific evidence establishing actual innocence; or (3)
the invalidation of convictions underlying an enhanced sentence. T.C.A. § 40-30-102(b).

        Petitioner argues that the Tennessee Supreme Court’s ruling in Coleman announced
a new rule of constitutional law that should apply retroactively to his case. See Coleman v.
State, 341 S.W.3d 221 (Tenn. 2011). However, our supreme court has already held that
Coleman “was not a constitutional ruling.” Keen v. State, 398 S.W.3d 594, 609 (Tenn.
2012). Coleman primarily addressed the interpretation of Tennessee Code Annotated section
39-13-203(a), the statute that defines intellectual disability in the context of the death penalty.
See Coleman, 341 S.W.3d at 230. Any constitutional aspect of Coleman – that the execution
of intellectually disabled persons violates the state and federal constitutions – is not new but

       2
        Whitehead v. State addressed when the statute of limitations for post-conviction petitions
may be tolled due to attorney abandonment or misconduct. 402 S.W.3d at 631.

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involved a right that the supreme court “had already announced ten years earlier in Van Tran
[v. State, 6 S.W.3d 257 (Tenn. 1999)].” Keen, 398 S.W.3d at 608-09 (footnote omitted).

         Petitioner has asked that we reconsider the Keen decision’s interpretation of Coleman.
However, we are bound by the precedent set by our supreme court. Additionally, we see no
reason to reconsider Keen’s interpretation of Coleman in this case, as Coleman specifically
addressed the issue of intellectual disability in the context of death penalty sentencing. We
agree with the post-conviction court that the ruling in Coleman does not apply in this case
to toll the statute of limitations under Tennessee Code Annotated section 40-30-102(b)(1).
However, that does not end our inquiry.

                                      II. Due Process Tolling
        Our supreme court has held that the right to due process may necessitate tolling the
statute of limitations in certain circumstances outside of the enumerated statutory exceptions.
See Burford v. State, 845 S.W.2d 204 (Tenn. 1992); Seals v. State, 23 S.W.3d 272 (Tenn.
2000). “[B]efore a state may terminate a claim for failure to comply with procedural
requirements such as statutes of limitations, due process requires that a potential litigant be
provided an opportunity for ‘presentation of claims at a meaningful time and in a meaningful
manner.’” Seals, 23 S.W.3d at 277-78 (quoting Burford, 845 S.W.2d at 207). “Whether due
process considerations require tolling of a statute of limitations is a mixed question of law
and fact, which we review de novo with no presumption of correctness.” Smith v. State, 357
S.W.3d 322, 355 (Tenn. 2011) (quoting Harris v. State, 301 S.W.3d 141, 145 (Tenn. 2010)).

        As this court has previously explained, “due process serves to toll the post-conviction
statute of limitations for petitioners who face circumstances beyond their control . . . which
preclude them from actively raising their post-conviction claims.” Crystle D. Rutherford v.
State, No. M2013-01575-CCA-R3-PC, 2014 WL 1669960, at *2 (Tenn. Crim. App., at
Nashville, April 25, 2014) (citing Williams v. State, 44 S.W.3d 464, 469 (Tenn. 2001)). Our
supreme court has identified three circumstances in which due process requires tolling the
post-conviction statute of limitations: (1) when claims for relief arise after the expiration of
the statute of limitations, see Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995); (2) when
a petitioner’s mental incompetence prevents him from complying with the statute’s deadline,
see Seals, 23 S.W.3d at 279; and (3) when attorney misconduct or abandonment prevented
the petitioner from filing a post-conviction petition within the statute of limitations, see
Whitehead, 402 S.W.3d at 631. Petitioner has raised the second and third circumstances as
reasons why the statute of limitations should be tolled in his case.

                                    A. Attorney Misconduct
       Petitioner asserts that alleged misconduct on the part of his trial counsel should toll
the statue of limitations. Petitioner alleges that his trial counsel never told him about the

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possibility of filing a post-conviction petition and that he did not become aware of such relief
until after the statute of limitations had expired. Additionally, Petitioner claims that his trial
counsel made a comment to him on the day he entered his guilty plea to the effect that he
might be able to get back into court because of a change in the law, which led Petitioner to
believe that trial counsel “would be filing paperwork to get Petitioner back into court.”
Petitioner admits, however, that trial counsel never directly told Petitioner that he would be
filing paperwork on Petitioner’s behalf in the future.

        As this Court has previously stated, “a hearing on due process concerns is not required
nor intended every time a petitioner alleges that his untimely filing is due to his attorney’s
conduct.” Joseph Nelson v. State, No. W2012-02234-CCA-R3-PC, 2013 WL 6001955, at
*3 (Tenn. Crim. App., at Jackson, Nov. 12, 2013) (citing Craig Robert Nunn v. State, No.
M2005-01404-CCA-R3-PC, 2006 WL 680900, at *5 (Tenn. Crim. App., at Nashville, Mar.
17, 2006)). To toll the statute of limitations for attorney misconduct or abandonment, a
petitioner must make “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.” Whitehead, 402 S.W.3d at 631 (citing Holland v. Florida, 560 U.S.
631, 648-49 (2010)). The extraordinary circumstance prong “is met when the [petitioner’s]
attorney of record abandons the [petitioner] or acts in a way directly adverse to the
[petitioner’s] interests, such as by actively lying or otherwise misleading the [petitioner] to
believe things about his or her case that are not true.” Id.

         “Short of active misrepresentation, however, [the supreme court has] never held that
trial or appellate counsel’s inadvertent or negligent failure to inform his or her client of the
right to file a post-conviction petition constitutes ineffective assistance of counsel” sufficient
to toll the statute of limitations in post-conviction proceedings. Smith, 357 S.W.3d at 358;
see also Williams, 44 S.W.3d at 468 n. 7. This Court has consistently held that “a petitioner’s
personal ignorance of post-conviction procedures, ‘even when alleged to stem from an
attorney’s negligent failure to render advice to the petitioner, does not toll the running of the
statute’ of limitations.” Joshua Jacobs v. State, No. M2009-02265-CCA-R3-PC, 2010 WL
3582493, at *3 (Tenn. Crim. App., at Nashville, Sept. 15, 2010) (quoting State v. Phillips,
904 S.W.2d 123, 124 (Tenn. Crim. App. 1995)); see also Joseph Nelson v. State, No.
W2012-02234-CCA-R3-PC, 2013 WL 6001955 (Tenn. Crim. App., at Jackson, Nov. 12,
2013); James Wesley Osborne v. State, No. E2010-01548-CCA-R3-PC, 2012 WL 953102
(Tenn. Crim. App., at Knoxville, Mar. 20, 2012); Leah Joy Ward v. State, No. W2009-
00088-CCA-R3-PC, 2010 WL 481211 (Tenn. Crim. App., at Jackson, Feb. 11, 2010);
Kimberly Ruth Brown v. State, No. M2007-00128-CCA-R3-PC, 2008 WL 886302 (Tenn.
Crim. App., at Nashville, Apr. 2, 2008). As one panel of this Court put it, “the law is well
settled that mere ignorance of the law concerning the statute of limitations, or even the
existence of the statute of limitations, by whatever means (other than mental incompetence),

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does not rise to the status of being violative of constitutional due process.” Guillermo Matiaz
Juan v. State, No. 03C01-9708-CR-00318, 1999 WL 76453, at *2 (Tenn. Crim. App., at
Knoxville, Feb. 18, 1999) (emphasis added). Therefore, while we find no merit in
Petitioner’s claim that the statute of limitations should be tolled for attorney misconduct or
abandonment, we will still address the issue of whether the statute of limitations should be
tolled due to Petitioner’s mental incompetence.

                                     B. Mental Incompetence
        If a petitioner is unable to bring a post-conviction claim within one year of the entry
of the judgment of the trial court because of mental incompetence, due process may require
that the statute of limitations be tolled. Seals, 23 S.W.3d at 279. A petitioner who is
mentally incompetent throughout the limitations period would be legally incapable of
asserting his or her constitutional rights in a timely post-conviction petition, and would,
therefore, be denied the opportunity to challenge his or her conviction in a meaningful
manner. Id. at 278. Therefore, “the failure to toll the limitations period would deny such a
petitioner a fair and reasonable opportunity for the bringing of the [post-conviction] petition,
and thus, would violate due process.” Id. (quoting Watkins v. State, 903 S.W.2d 302, 307
(Tenn. 1995)) (alteration in original).

        Until recently, a petitioner seeking to toll the statute of limitations for mental
incompetence had to show that he or she was “unable either to manage his or her own
personal affairs or to understand his or her legal rights and liabilities.” State v. Nix, 40
S.W.3d 459, 461 (Tenn. 2001). However, the Tennessee Supreme Court decided that, “[i]n
the interest of uniformity and simplicity, we have determined that the standards and
procedures in [Tennessee Supreme Court Rule] 28, § 11 should henceforth be used in all
post-conviction proceedings . . . in which the issue of the petitioner’s competency is properly
raised,” including “when a petitioner seeks to toll the statute of limitations in [Tennessee
Code Annotated section] 40-30-102(a) due to incompetency.” Reid ex rel. Martiniano v.
State, 396 S.W.3d 478, 512 (Tenn. 2013). That standard of competency is:

       whether the petitioner possesses the present capacity to appreciate the
       petitioner’s position and make a rational choice with respect to continuing or
       abandoning further litigation or on the other hand whether the petitioner is
       suffering from a mental disease, disorder, or defect which may substantially
       affect the petitioner’s capacity.

Tenn. Sup. Ct. R. 28, § 11(B)(1). “The question is not whether the [petitioner] is able to care
for himself or herself, but whether the prisoner is able to make rational decisions concerning
the management of his or her post-conviction appeals.” Reid ex rel. Martiniano, 396 S.W.3d
at 513.

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       The Reid ex rel. Martiniano decision laid out very specific procedures for a post-
conviction court to follow when the issue of mental incompetence is raised. The court should
begin with a presumption that the petitioner is competent. Reid ex rel. Martiniano, 396
S.W.3d at 512. The petitioner “must make a prima facie showing that the [petitioner] is
incompetent by submitting ‘affidavits, depositions, medical reports, or other credible
evidence that contain specific factual allegations showing the petitioner’s incompetence.’”
Id. (quoting Holton v. State, 201 S.W.3d 626, 632 (Tenn. 2006)). “Unsupported, conclusory,
or general allegations of mental illness will not be sufficient to require tolling and prevent
summary dismissal.” Nix, 40 S.W.3d at 464; see T.C.A. § 40-30-106(b), (f). If a prima facie
showing is made, the post-conviction court will then “schedule a hearing to determine
whether the [petitioner] is competent to manage his [or her] petition.” Reid ex rel.
Martiniano, 396 S.W.3d at 512. At the hearing, the burden is on the petitioner to prove “that
he or she is mentally incompetent by clear and convincing evidence.” Id. at 494 (citing
T.C.A. § 40-30-110(f)).

     Our supreme court has directed lower courts to apply the three-step test set out in
Rumbaugh v. Procunier for determining competency:

       (1) Is the person suffering from a mental disease or defect?

       (2) If the person is suffering from a mental disease or defect, does that disease
       or defect prevent him from understanding his legal position and the options
       available to him?

       (3) If the person is suffering from a mental disease or defect which does not
       prevent him from understanding his legal position and the options available to
       him, does that disease or defect, nevertheless, prevent him from making a
       rational choice among his options?

       If the answer to the first question is no, the court need go no further, the person
       is competent. If both the first and second questions are answered in the
       affirmative, the person is incompetent and the third question need not be
       addressed. If the first question is answered yes and the second is answered no,
       the third question is determinative; if yes, the person is incompetent, if no the
       person is competent.

Reid ex rel. Martiniano, 396 S.W.3d at 513 (quoting Rumbaugh v. Procunier, 753 F.2d 395,
398-99 (5th Cir. 1985)). The focus of the inquiry is on rational decision making:

       A decision may be rational even when it is not one that the majority would

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       consider acceptable, sensible, or reasonable. A decision is rational when it is
       based on a process of reasoning. A person’s decision-making process is
       rational when that person can (1) take in and understand information; (2)
       process the information in accordance with his or her personal values and
       goals; (3) make a decision based on the information; and (4) communicate the
       decision.

Reid ex rel. Martiniano, 396 S.W.3d at 513 (internal citations omitted).

        Both the State and Petitioner agree that the post-conviction court erred when it
dismissed the petition in this case without holding an evidentiary hearing to determine
whether due process requires tolling of the statute of limitations because of Petitioner’s
mental incompetence. Petitioner asserts that he is borderline intellectually functioning,
suffers from paranoid schizophrenia, and has other cognitive limitations and neurological
problems. In his response to the State’s motion to dismiss, Petitioner included affidavits
from several medical professionals detailing his mental health history both prior to and
during incarceration. These affidavits include observations about Petitioner’s behavior, his
reasoning and decision-making abilities, as well as test scores measuring his I.Q. and verbal
comprehension. We find that these affidavits include specific factual allegations about
Petitioner’s incompetence and that Petitioner has, therefore, made the requisite prima facie
showing. The post-conviction court erred when it summarily dismissed the petition without
holding an evidentiary hearing to determine whether Petitioner was incompetent during the
statute of limitations period under the standard set out in Reid ex rel. Martiniano and, thus,
whether due process requires that the statute of limitations be tolled. We, therefore, reverse
the decision of the post-conviction court and remand for a hearing in accordance with this
opinion.

                                       Conclusion
      For the foregoing reasons, the judgment of the post-conviction court is reversed and
remanded. The post-conviction court shall hold an evidentiary hearing, pursuant to this
opinion, to determine whether the statute of limitations should be tolled due to Petitioner’s
mental incompetence during the limitations period.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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