        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                   March 3, 2015 Session

                  COLE WOODARD v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                      No. 11-01335 John W. Campbell, Judge




                 No. W2014-00837-CCA-R3-PC - Filed April 28, 2015


A Shelby County jury convicted the Petitioner, Cole Woodard, of sale of cocaine, possession
of cocaine with intent to sell, and possession of cocaine with intent to deliver. The trial court
sentenced the Petitioner to serve three concurrent sentences of ten years each for these
convictions. On appeal, this Court affirmed the convictions, but it vacated the judgments and
remanded the case for entry of judgments reflecting merger of the jury verdicts into a single
conviction for sale of cocaine. State v. Cole Woodard, W2011-02224-CCA-R3-CD, 2012
WL 4057266 (Tenn. Crim. App., at Jackson, Sept. 17, 2012), no Tenn. R. App. P. 11
application filed. The Petitioner filed a petition seeking post-conviction relief on January 28,
2014, alleging that he had received the ineffective assistance of counsel. After a hearing
regarding whether the Petitioner petition was untimely filed, the post-conviction court
dismissed the petition as time-barred. We affirm the post-conviction court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which R OBERT H.
M ONTGOMERY, J R., and T IMOTHY L. E ASTER, JJ., joined.

Carlissa Shaw, Memphis, Tennessee, for the appellant, Cole Woodard.

Herbert H. Slatery III, Attorney General and Reporter; Tracy L. Alcock, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Alycia Carter, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                            I. Facts
        A Shelby County grand jury indicted the Petitioner, in two separate indictments, for
drug transactions occurring on October 19, 2010. One indictment charged the Petitioner with
sale of cocaine, possession of cocaine with the intent to sell, and possession of cocaine with
the intent to deliver. This indictment alleged that these offenses occurred between 2:00 and
3:00 p.m. on October 19, 2010. The other indictment charged the Petitioner with additional
offenses that occurred subsequently, between 3:30 and 4:30 p.m. on October 19, 2010.

       This Court summarized the evidence presented at trial as follows:

               Officer SirCease Brooks of the Memphis Police Department, testified
       that he bought crack cocaine from [the Petitioner] on two separate occasions on
       October 19, 2010. He identified [the Petitioner] at trial. Officer Brooks said
       that he was sent to the area of 211 Leath Street to purchase drugs. After driving
       to the area in his car, Officer Brooks gave a hand signal asking if anyone had
       any drugs to sell, and [the Petitioner] approached his car and asked him what
       he wanted to purchase. Officer Brooks told [the Petitioner] that he “want[ed]
       a twenty dollar rock” of crack cocaine. [The Petitioner] got into Officer
       Brooks’s car and asked him to drive around the block. [The Petitioner] pulled
       out a bag from his front pocket containing “five or six . . . twenty dollar rocks”
       before giving Officer Brooks one of the rocks. Officer Brooks complained to
       [the Petitioner] that the rock was “kind of small[,]” but he accepted it. Officer
       Brooks gave [the Petitioner] twenty dollars and told him that he “might be back
       within a couple of hours[.]” After dropping off [the Petitioner] in the area
       where he had picked him up, Officer Brooks placed the rock of crack cocaine
       in a separate bag and labeled it with his undercover number, the date, location,
       and type of the drug before hiding it in a compartment in his car.

               Officer Brooks made a another drug buy in a different area before
       returning to the 211 Leath Street area “about two or three hours” later. He saw
       [the Petitioner], and [the Petitioner] again got into his car. [The Petitioner]
       asked him if he wanted to purchase another twenty dollar rock of crack cocaine,
       and Officer Brooks responded affirmatively. Officer Brooks told him that he
       had to split the first rock with some other individuals and that he was
       purchasing the second rock to smoke himself. [The Petitioner] gave him
       another rock of crack cocaine, slightly larger than the first one he had
       purchased, from the bag in his front pocket and took the twenty dollars from
       Officer Brooks before exiting the car. After dropping off [the Petitioner],
       Officer Brooks placed the rock in a separate bag and labeled it before hiding it
       in the compartment in his car.

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       At the end of the day, Officer Brooks placed all of these bags containing
drugs in a secured lock box. He explained that he made five drugs buys on
October 19, 2010, and had five bags labeled one through five, which
represented his first, second, third, fourth, and fifth drug buys that day. Each
time he purchase[d] drugs on October 19, 2010, he placed the drugs into the
appropriately labeled bag. Officer Brooks stated that his third and fifth drug
buys on October 19, 2010, involved [the Petitioner].

       Officer Brooks later identified [the Petitioner] in a photograph lineup.
He said he made two recordings of the second drug buy with [the Petitioner] on
October 19, 2010, both of which were played for the jury. Officer Brooks said
he was unable to make any recordings of the first drug buy with [the Petitioner]
because he “didn’t have enough time to turn on the camera on the passenger
side” of his car before [the Petitioner] entered his vehicle. However, for the
second drug buy, Officer Brooks made two recordings, one that contained audio
of the conversation between him and [the Petitioner] and one that contained
video of [the Petitioner] and audio of their conversation. After [the Petitioner]
exited the car on the second drug buy, Officer Brooks placed the rock of crack
cocaine into the bag and dictated the time of the drug transaction on the
recordings.

       Officer Jonathon Clapp, an evidence custodian for the Memphis Police
Department, testified that he retrieved from the evidence lock box the two
substances that Officer Brooks purchased from [the Petitioner] on October 19,
2010. He stated that he was the only officer to have a key to that lock box.
Based on his training, Officer Clapp stated that the two substances purchased
from [the Petitioner] on October 19, 2010, appeared to be cocaine.

       Billy Byrd, another evidence custodian with the Memphis Police
Department, picked up the two envelopes containing the substances that
Officer Brooks purchased from [the Petitioner] on October 19, 2010. He then
transported them to the Tennessee Bureau of Investigation (TBI) for testing.

        Agent Brock Sain, a forensic scientist with the TBI, was declared an
expert in the fields of forensic science and identification of controlled
substances. Agent Sain said he tested the two substances that Officer Brooks
purchased from [the Petitioner] on October 19, 2010. He determined that the
first substance tested positive for cocaine and weighed .10 grams and that the
second substance tested positive for cocaine and weighed .14 grams.



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              [The Petitioner] declined to testify at trial, and no proof was offered by
       the defense.

Woodard, 2012 WL 4057266 at *1.

       After hearing this evidence, the jury acquitted the Petitioner of the charges alleged to
have occurred between 2:00 and 3:00 p.m. and convicted the Petitioner of the charges alleged
to have occurred between 3:30 p.m. and 4:30 p.m. The trial court sentenced the Petitioner to
ten years for each of the three convictions, and it ordered those sentences to run concurrently.
On direct appeal, this Court affirmed the convictions but remanded for merger into a single
conviction for sale of cocaine. Woodard 2012 WL 4057266, at *1.

        The direct appeal opinion was filed on September 17, 2012, and the Petitioner did not
file a Rule 11 application seeking supreme court review. Sixteen months later, on January 28,
2014, the Petitioner filed a pro se petition for post-conviction relief, alleging that he received
the ineffective assistance of counsel. He claimed that his petition was not time-barred because
the criminal court clerk’s last date of entry was January 28, 2013. The post-conviction court
held a hearing, during which it was explained that an amended judgment sheet was filed in
his case on January 13, 2013, which mistakenly led the Petitioner to believe that the amended
judgment was “the final action of the highest court” for purposes of calculating the statute of
limitations. The post-conviction court stated that the Petitioner’s mistake would not toll the
statute of limitations, therefore, the petition would be dismissed. The Petitioner offered no
proof and made no argument.

       It is from this judgment that the Petitioner now appeals.

                                          II. Analysis

       The Petitioner asserts that this Court should reverse the post-conviction court’s
dismissal and “find that [the Petitioner] is entitled to a hearing” based upon his trial counsel’s
failure “to inform [the] Petitioner that the appeals court made a finding in the above
referenced matter.” The State responds that the Petitioner has failed to show that he is entitled
to a due process tolling of the statute of limitations. We agree with the State.

        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) (2012). 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

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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 post-
conviction court is required to summarily dismiss the petition. T.C.A. § 40-30-106(b) (2012).

       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 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

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        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)).

        In the case under submission, the Petitioner was required to file his petition for
post-conviction relief within one year of September 17, 2012, the date of the final action of
hte highest state appellate court to which an appeal was taken. See T.C.A. § 40-30-102(a)
(2012). The Petitioner filed his petition on January 28, 2014. This filing occurred more than
one year after this Court filed its opinion in the Petitioner’s direct appeal, and thus, was barred
by the statute of limitations. The Petitioner does not allege, nor do we find applicable, any
of the statutory exceptions to the one-year statute of limitations. After reviewing the record
and the Petitioner’s claims, we conclude that the Petitioner has been “provided an opportunity
for the presentation of claims at a meaningful time and in a meaningful manner,” Burford,
845 S.W.2d at 208. Therefore, due process does not require the tolling of the statute of
limitations. The post-conviction court properly dismissed the Petitioner’s petition.

                                        III. Conclusion

      After a thorough review of the record and relevant authorities, we affirm the post-
conviction court’s judgment.

                                                       ________________________________
                                                        ROBERT W. WEDEMEYER, JUDGE




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