        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs March 25, 2015

                 ANTWON COOK v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Bradley County
                    No. 14CR459     Andrew M. Freiberg, Judge




                  No. E2014-02229-CCA-R3-PC – Filed June 2, 2015




The petitioner, Antwon Cook, appeals the dismissal of his petition for post-conviction
relief. The post-conviction court found that the appeal was filed beyond the one-year
statute of limitations and that due process did not necessitate an equitable tolling of the
statute of limitations. On appeal, the petitioner contends that equitable tolling is
warranted because his plea agreement that allowed for concurrent service of a state and
federal sentence is not being honored. Upon our review, we affirm the judgment of the
post-conviction court.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which NORMA
MCGEE OGLE and ROBERT L. HOLLOWAY, JR., JJ., joined.

Antwon Cook, Lewisburg, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel, for
the appellee, State of Tennessee.

                                       OPINION

                      FACTS AND PROCEDURAL HISTORY
       On January 9, 2006, the petitioner pled guilty to one count of possession of
cocaine in excess of 0.5 grams with the intent to sell and one count of the sale of cocaine
in excess of 0.5 grams and received an eight-year sentence. Pursuant to the plea
agreement, his state sentence was to be served concurrently with a federal sentence. The
petitioner began serving his sentence in the custody of the Tennessee Department of
Correction. On June 1, 2010, the petitioner was discharged from state custody and
released to federal custody, and he began serving his federal sentence on October 5,
2010.

       Once in federal custody, the petitioner realized that he was not receiving credit on
his federal sentence for the time that he was incarcerated in the Tennessee Department of
Correction, effectively rendering the sentences consecutive. He filed a motion on
February 24, 2011, with the Federal Bureau of Prisons requesting jail credits, and he
received credits from May 29, 2010 to June 2, 2010. The petitioner filed several
additional motions requesting credit for the full amount of time that he was incarcerated
on his state convictions, all of which were denied.

        On December 2, 2013, the petitioner filed a petition for writ of error coram nobis
alleging several issues with his guilty plea and sentences and that he received the
ineffective assistance of counsel. On appeal, this court affirmed the denial of the petition.
Antwon Cook v. State, No. E2014-00214-CCA-R3-ECN, 2014 WL 3210759, at *2 (Tenn.
Crim. App. July 8, 2014). This court observed that even if the statute were tolled until
the petitioner discovered that he would serve his sentences consecutively, the petition
“was filed well beyond the one-year statute of limitations for either coram nobis or post-
conviction relief.” Id. at *2. As a result, this court concluded the petitioner had not
presented newly discovered evidence and that due process did not warrant an equitable
tolling of the statute of limitations. Id.

        On August 28, 2014, the petitioner filed his current petition for post-conviction
relief. He alleged that he was not serving his federal sentence concurrently with his state
sentence and that due process required an equitable tolling of the statute of limitations for
consideration of his claims of ineffective assistance of counsel and an unknowing and
involuntary guilty plea. The post-conviction court issued a written order denying the
petition without appointing counsel or holding a hearing. The court found that the
petitioner waited “in excess of eight years” before filing his petition. The court noted that
the petitioner became aware upon his transfer to federal custody in 2010 that his
sentences were not being imposed concurrently, yet he “delayed significantly before
seeking any form of relief.” While noting that it was “not unsympathetic to [the
petitioner‟s] plight,” the court found that the petitioner was aware of the consecutive
sentencing in 2010 and “was provided ample opportunity to present his claims within a
meaningful time and in a meaningful manner.”



                                             2
       The petitioner filed a timely notice of appeal, and we proceed to consider his
claims.

                                        ANALYSIS

                                    I. Equitable Tolling

        The petitioner argues that he is entitled to an equitable tolling of the one-year
statute of limitations for post-conviction relief and a hearing on his claims of ineffective
assistance of counsel, his unknowing and involuntary guilty plea, “and the consecutive
sentences effect and/or jail credit issues.” Specifically, he contends that he did not realize
that the State was the party at fault for the breach of his plea agreement and, as a result,
incorrectly sought relief from the Federal Bureau of Prisons.

       Post-conviction relief is available “when the conviction or sentence 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 (2010). The
question of whether due process necessitates a tolling of the statute of limitations is a
mixed question of law and fact subject to de novo review. Whitehead v. State, 402
S.W.3d 615, 621 (Tenn. 2013).

        If no appeal is filed, a petition for post-conviction relief must be filed “within one
(1) year of the date on which the judgment became final, or consideration of the petition
shall be barred.” T.C.A. § 40-30-102(a). Because “[t]ime is of the essence of the right to
file a petition for post-conviction relief,” “[t]he statute of limitations shall not be tolled
for any reason, including any tolling or saving provision otherwise available at law or
equity.” Id. However, in instances in which a claim for post-conviction relief arose after
the expiration of the statute of limitations, due process may permit the tolling of the
statute. Seals v. State, 23 S.W.3d 272, 278 (Tenn. 2000). In order to determine whether
tolling is appropriate, courts should employ a three-prong analysis:

       (1) determine when the limitations period would normally have begun to
       run; (2) determine whether the grounds for relief actually arose after the
       limitations period would normally have commenced; and (3) if the grounds
       are “later-arising,” determine if, under the facts of the case, a strict
       application of the limitations period would effectively deny the petitioner a
       reasonable opportunity to present the claim.

Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995).

       In his post-conviction petition, the petitioner seeks the equitable tolling of the
applicable statute of limitations to consider the same issues that he raised in his petition
for writ of error coram nobis. However, this court concluded that the petition was time-

                                              3
barred. Antwon Cook, 2014 WL 3210759, at *2. In the context of a petition for post-
conviction relief filed more than one year after a petitioner discovered that he had not
received credit on a federal sentence for a prior state sentence, this court has also
concluded that the petition was untimely. Andre Wilson v. State, No. W2001-02442-
CCA-R3-PC, 2002 WL 818260 (Tenn. Crim. App. April 17, 2002), perm. app. denied
(Tenn. Oct. 7, 2002). In Andre Wilson, the petitioner‟s plea agreement indicated that he
received a state sentence that was to be served concurrently with a federal sentence. Id.
at *1. When the petitioner began serving his federal sentence, he discovered that the
Federal Bureau of Prisons would not give him credit for his state sentence. Id. Nearly
two years after this discovery, he filed a petition for post-conviction relief. He delayed in
filing his petition “because he „believed that [the] Federal Bureau of Prisons was the
cause of his not receiving credit on his Federal Sentence for the time he served in the
State of Tennessee.‟” Id. This court concluded that even if the statute were tolled until
his claim was discovered, the petition was still untimely because it was filed more than
two years after this discovery. Id. at *2.

        The petitioner attempts to distinguish Wilson by arguing that Mr. Wilson‟s petition
was based solely on the Federal Bureau of Prison‟s decision not to award him credit for
his state sentence, while the instant petition is premised on a claim “that the State was
without authority to fulfill the intent of its imposition of a[] concurrent sentence „with‟
the federal sentence.” However, just as in Wilson, the petitioner contends that his delay
in filing the petition was due to an erroneous belief that the Federal Bureau of Prisons
was responsible for his failure to receive credit for his state sentence. Ignorance of the
existence of post-conviction relief as a remedy does not necessitate the tolling of the
statute of limitations. The same rationale employed by this court in the petitioner‟s error
coram nobis appeal and the court in Andre Wilson is applicable here. The petitioner
realized that he would not receive jail credits for his state sentence when he began
serving his federal sentence in 2010. Even if we were to consider the statute tolled until
this discovery, the petitioner delayed nearly four years in filing his petition for post-
conviction relief. The petitioner received a reasonable opportunity to present his claims
after his consecutive sentencing was discovered. Therefore, we conclude that due
process concerns do not warrant a tolling of the statute of limitations. The petitioner is
not entitled to any relief.

                                     CONCLUSION

       Based upon the foregoing, we affirm the judgment of the post-conviction court.


                                                 _________________________________
                                                 JOHN EVERETT WILLIAMS, JUDGE



                                             4
