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        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                         Assigned on Briefs August 14, 2018

             CHRISTOPHER YOUNG v. STATE OF TENNESSEE

               Appeal from the Circuit Court for Montgomery County
                No. 40701514       William R. Goodman, III, Judge


                             No. M2017-01106-CCA-R3-PC


In 2008, the Petitioner, Christopher Young, pleaded guilty to possession of a Schedule II
controlled substance with a six-year sentence to be served on Community Corrections. In
2017, the Petitioner filed a petition for post-conviction relief, which the post-conviction
court summarily dismissed as untimely filed. On appeal, the Petitioner contends that this
matter should be remanded to the lower court to allow him to file an amended petition in
light of recent case law. After review, we affirm the post-conviction court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the Court, in which D. KELLY
THOMAS, JR. and J. ROSS DYER, J., joined.

Brittany K. Byrd, Dallas, Texas and Jessica M. Van Dyke, Nashville, Tennessee, for the
appellant, Christopher Young

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
John W. Carney, Jr., District Attorney General; and Chris W. Dotson, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                                I. Facts and Background

       This case originates from the Petitioner’s 2007 arrest for drug possession, which
resulted in him being charged by a grand jury with three drug offenses, one of which was
possession of a Schedule II controlled substance, a charge to which he later pleaded
guilty. The 2008 guilty plea and sentencing hearing transcripts are not included in the
record, but the record indicates that the trial court sentenced the Petitioner to six years,
allowing him to serve his sentence on Community Corrections. It appears that the United
States Federal Government subsequently charged the Petitioner with a drug offense and
he was convicted and sentenced in that case in 2013.

       In 2017, the Petitioner filed a petition for post-conviction relief, pro se, alleging
that he had received the ineffective assistance of counsel and that his 2008 guilty plea
was not voluntarily entered. He contended that his attorney (“Counsel”) had not advised
him that, by pleading guilty, his conviction could later be used to enhance any future
sentence, such as the one he received in federal court in 2013. He stated that, had he
known of this possibility, he would have proceeded to trial. The State responded that the
petition fell outside the statute of limitations and did not qualify for one of the exceptions
for the tolling of the statute. The State requested that the petition be summarily
dismissed.

       The Petitioner subsequently filed a motion for appointment of counsel and a
motion requesting that he be allowed to attend his post-conviction hearing via
teleconference; he was in a federal medical facility in Kentucky at the time. The post-
conviction court reviewed the petition, and then issued an order, addressing neither of the
Petitioner’s motions but dismissing the petition as follows:

       (1) this Petition is barred by the statute of limitations and (2) this Petition
       comprises no allegation relevant to either any of the statutorily-defined
       exceptions to the statute of limitations or to the statutorily-defined
       requirements for reopening a prior petition for post-conviction relief.

       It is from this judgment that the Petitioner now appeals.

                                        II. Analysis

       On appeal, the Petitioner contends that his case is subject to one of the exceptions
to the statute of limitations and that this matter should be remanded to allow him to file
an amended petition in light of recent case law found at Lee v. United States, 137 S. Ct.
1958 (2017). The Petitioner further contends that an attorney should have been appointed
following the filing of his pro se petition and that a hearing should have been held with
the Petitioner in attendance. The State responds that the post-conviction court properly
dismissed the petition as time-barred and that none of the exceptions are applicable, as
Lee does not establish a new constitutional right. Finally, the State contends that the
Petitioner has waived his argument regarding a hearing being held because he failed to
include the relevant documents in the record and he failed to adequately brief the issue.

       In order to obtain post-conviction relief, a petitioner must show that his or her
conviction or sentence is void or voidable because of the abridgment of a constitutional
right. T.C.A. §40-30-103 (2014). The petitioner bears the burden of proving factual
allegations in the petition for post-conviction relief by clear and convincing evidence.

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T.C.A. § 40-30-110(f) (2014). The post-conviction court’s findings of fact are conclusive
on appeal unless the evidence preponderates against it. Fields v. State, 40 S.W.3d 450,
456-57 (Tenn. 2001). A post-conviction court’s conclusions of law are subject to a
purely de novo review by this court, with no presumption of correctness. Id. at 457.

       The right of a criminally accused to representation is guaranteed by both the Sixth
Amendment to the United States Constitution and article I, section 9 of the Tennessee
Constitution. State v. White, 114 S.W.3d 469, 475 (Tenn. 2003); State v. Burns, 6
S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975). The
following two-prong test directs a court’s evaluation of a claim for ineffectiveness:

      First, the [petitioner] must show that counsel’s performance was deficient.
      This requires showing that counsel made errors so serious that counsel was
      not functioning as the “counsel” guaranteed the [petitioner] by the Sixth
      Amendment. Second, the [petitioner] must show that the deficient
      performance prejudiced the defense. This requires showing that counsel’s
      errors were so serious as to deprive the [petitioner] of a fair trial, a trial
      whose result is reliable. Unless a [petitioner] makes both showings, it
      cannot be said that the conviction or death sentence resulted from a
      breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also State v. Melson, 772
S.W.2d 417, 419 (Tenn. 1989).

        In reviewing a claim of ineffective assistance of counsel, this Court must
determine whether the advice given or services rendered by the attorney are within the
range of competence demanded of attorneys in criminal cases. Baxter, 523 S.W.2d at
936. To prevail on a claim of ineffective assistance of counsel, “a petitioner must show
that counsel’s representation fell below an objective standard of reasonableness.” House
v. State, 44 S.W.3d 508, 515 (Tenn. 2001) (citing Goad v. State, 938 S.W.2d 363, 369
(Tenn. 1996)). When evaluating an ineffective assistance of counsel claim, the reviewing
court should judge the attorney’s performance within the context of the case as a whole,
taking into account all relevant circumstances. Strickland, 466 U.S. at 690; State v.
Mitchell, 753 S.W.2d 148, 149 (Tenn. Crim. App. 1988). The reviewing court should
avoid the “distorting effects of hindsight” and “judge the reasonableness of counsel’s
challenged conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct.” Strickland, 466 U.S. at 689-90. If the petitioner shows that counsel’s
representation fell below a reasonable standard, then the petitioner must satisfy the
prejudice prong of the Strickland test by demonstrating there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. Strickland, 466 U.S. at 694; Nichols v. State, 90 S.W.3d 576, 587 (Tenn.
2002). This reasonable probability must be “sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694; Harris v. State, 875 S.W.2d 662, 665 (Tenn.

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1994).

       This standard also applies to claims arising out of the plea process. Hill v.
Lockhart, 474 U.S. 52, 58 (1985). To satisfy the requirement of prejudice in a case
involving a guilty plea, the petitioner must demonstrate a reasonable probability that, but
for counsel’s errors, he or she “would not have pleaded guilty and would have insisted on
going to trial.” Id. at 59.

                                  A. Statute of Limitations

        We begin by addressing the issue of whether the Petitioner’s petition was time-
barred, and, in the event that it was, if the Petitioner was entitled to a tolling of the statute
of limitations. A person in custody under a sentence of a court of this state must petition
for post-conviction relief within one 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 year
of the date on which the judgment becomes final. T.C.A. § 40-30-102(a) (2014). The
statute explicitly states, “The statute of limitations shall not be tolled for any reason,
including any tolling or saving provision otherwise available at law or equity.” Id. It
further stresses that “[t]ime 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.” Id. In the event that a petitioner files a petition for post-conviction relief
outside the one-year statute of limitations, the trial court is required to summarily dismiss
the petition. T.C.A. § 40-30-106(b) (2014).

        Tennessee Code Annotated section 40-30-102(b) sets out three exceptions to the
statute of limitations for petitions for post-conviction relief:

                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

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              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 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.

      Additionally, due process concerns may toll the statute of limitations for post-
conviction relief. The Tennessee Supreme Court concluded:

              [B]efore a state may terminate a claim for failure to comply with
       procedural requirements such as statutes of limitations, due process requires
       that potential litigants be provided an opportunity for the presentation of
       claims at a meaningful time and in a meaningful manner.

Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992) (citing Logan v. Zimmerman Brush
Co., 455 U.S. 422, 437 (1982)). Our supreme court has also recognized that
“extraordinary circumstances” might require the tolling of the statute of limitations,
specifically cases where “circumstances beyond a petitioner’s control prevented the
petitioner from filing a petition for post-conviction relief within the statute of
limitations.” Whitehead v. State, 402 S.W.3d 615, 634 (Tenn. 2013) (citing State v.
Smith, 357 S.W.3d 322, 358 (Tenn. 2011)).

       In the case under submission, the Petitioner was required to file his petition for
post-conviction relief within one year of March 19, 2008, the date that his judgment
became final. See T.C.A. § 40-30-102(a) (2014); State v. Green, 106 S.W.3d 646, 650
(Tenn. 2003) (holding that “a judgment of conviction entered upon a guilty plea becomes
final thirty days after acceptance of the plea agreement and imposition of sentence”).
The Petitioner alleges that he later learned of the consequences of his guilty plea when he
was sentenced in federal court in 2013. The Petitioner filed his petition on April 7, 2017,
just over nine years after his guilty plea, and over three years after his federal sentence
was imposed. Thus, his filing was barred by the statute of limitations.

        We then turn to address whether any of the statutory exceptions to the one-year
statute of limitations are applicable to the Petitioner’s claims. The Petitioner contends
that his claim falls under the first exception, that the claim 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.” T.C.A. § 40-30-
102(b)(1). He contends that Lee v. United States announces a new standard for assessing

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the prejudice prong in an ineffective assistance of counsel inquiry. He argues that it
should be applied retroactively. The State contends that Lee did not establish a
constitutional right that did not exist at the time of the Petitioner’s guilty plea, nor did it
require retroactive application of its holding, and thus cannot be used to toll the statute of
limitations. We agree with the State.

        The petitioner in Lee, a thirty-five year resident of the United States with virtually
no ties to his country of origin, was deported after pleading guilty to a crime and sought
post-conviction relief on the basis that he would not have entered a guilty plea but for the
deficient advice of his attorney that he definitively would not face deportation. In its
opinion in Lee, the United State Supreme Court concluded that the petitioner had
“demonstrated a ‘reasonable probability that, but for [his] counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.’” Lee, 137 S.Ct. at 1969
(citation omitted). Thus, the Supreme Court concluded that, considering the unusual
circumstances of the Lee petitioner’s case and looking to the contemporaneous evidence
substantiating the petitioner’s claim, the petitioner had demonstrated prejudice sufficient
to surmount the standards recited in Strickland and Hill. Id.; see also Strickland, 466
U.S. at 694; Hill, 474 U.S. at 59.

        The Petitioner in the present case claims that, in light of the holding in Lee, the
Supreme Court established a new standard for demonstrating prejudice. We disagree.
The Lee court cited Hill repeatedly, most notably in its holding, when it concluded that
the petitioner had demonstrated prejudice. As such, the Petitioner’s claim that he would
not have pleaded guilty had Counsel advised him that his conviction could be used to
enhance any future sentence is not based on a “constitutional right that was not
recognized as existing at the time of trial,” T.C.A. § 40-30-102(b)(1), as no such right
was declared by Lee. Accordingly, he has not demonstrated that he is entitled to a tolling
of the statute of limitations, and we conclude that the post-conviction court properly
summarily dismissed his petition on this basis. The Petitioner is not entitled to relief on
this issue.

                                  B. Summary Dismissal

        The Petitioner next contends that the post-conviction court erred when it
summarily dismissed his petition and when it failed to appoint counsel following the
filing of his pro se petition. He contends that the law of this State requires that he be
represented by counsel, although he concedes that a court may refuse to appoint counsel
in the case of a petition that conclusively shows a petitioner is not entitled to relief. The
State responds that the Petitioner’s argument is waived due to an inadequate record and
failure to outline the issue in the “Statement of the Issues” in his brief.

       We note that in the event that a petitioner files a petition for post-conviction relief
outside the one-year statute of limitations, the trial court is required to summarily dismiss

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the petition. T.C.A. § 40-30-106(b) (2014). “Where a petition conclusively shows that
the petitioner is entitled to no relief, it is properly dismissed without the appointment of
counsel and without an evidentiary hearing.” Givens v. State, 702 S.W.2d 578, 580
(Tenn. Crim. App. 1985).

       The post-conviction court stated in its order dismissing the petition:

               (1) this Petition is barred by the expiration of the statute of
       limitations and (2) this Petition comprises no allegation relevant to any of
       the statutorily-defined exceptions to the statute of limitations or to the
       statutorily-defined requirements for reopening a post-conviction petition for
       post-conviction relief.

        The Petitioner’s petition did not allege any facts as to why he waited more than
three years to file his petition after he became aware of the consequences of his 2008
guilty plea in 2013. As such, his petition conclusively demonstrated that he was not
entitled to relief, and the post-conviction court properly dismissed the petition summarily.

                                      III. Conclusion

       After a thorough review of the record and the applicable law, we conclude the
post-conviction court properly dismissed the Petitioner’s petition for post-conviction
relief. In accordance with the foregoing reasoning and authorities, we affirm the
judgment of the post-conviction court.


                                                   ________________________________
                                                    ROBERT W. WEDEMEYER, JUDGE




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