                                                                                         08/14/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                                March 19, 2019 Session

            JAMES ELLISON ROUSE v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Maury County
                         No. 9575    David L. Allen, Judge
                     ___________________________________

                           No. M2018-00926-CCA-R3-PC
                       ___________________________________

The Petitioner, James Ellison Rouse, appeals the Maury County Circuit Court’s denial of
his petition for post-conviction relief from his two convictions of first degree murder and
two convictions of attempted first degree murder and resulting effective sentence of two
terms of life without the possibility of parole plus forty-two years. The post-conviction
court ruled that the petition was time-barred. On appeal, the Petitioner contends that his
petition was timely because he filed it within one year of Montgomery v. Louisiana, 136
S. Ct. 718 (2016), and Jacob Brown v. State, No. W2015-00887-CCA-R3-PC, 2016 WL
1562981 (Tenn. Crim. App. at Jackson, Apr. 15, 2016). Based upon the oral arguments,
the record, and the parties’ briefs, we affirm the judgment of the post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which ROBERT W.
WEDEMEYER and J. ROSS DYER, JJ., joined.

Jake Hubbell, Columbia, Tennessee, for the appellant, James Ellison Rouse.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Senior Assistant
Attorney General; Brent A. Cooper, District Attorney General; and Caleb Bayless,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                I. Factual Background

       In November 1997, a Maury County Circuit Court Jury convicted the Petitioner of
two counts of first degree murder and two counts of attempted first degree murder. On
direct appeal of the Petitioner’s convictions, this court gave the following account of the
crimes:
            On November 15, 1995, Jamie Rouse, the defendant, then seventeen
      and a high school senior, walked into Richland High School, in Giles
      County, at the beginning of the school day, armed with a .22 caliber rifle.
      The defendant was driven to school that day by co-defendant Stephen
      Abbott.

              Once inside Richland High School, the defendant walked down the
      north hallway. He stopped some two feet from his first victim, raised his
      rifle to his shoulder, aimed it at teacher Carol Yancey’s head, and pulled the
      trigger. The rifle did not fire, so he cocked it again, took aim, and shot
      Carol Yancey in the head. She fell to the floor seriously wounded.

             He then immediately shot teacher Carolyn Foster, who was standing
      beside Carol Yancey. Carolyn Foster died as a result of her wound. The
      defendant then lowered his rifle, smiled at a fellow student, and walked
      calmly down the crowded hallway. He again took aim, this time intending
      to shoot Coach Ron Shirey. He fired down the hallway and struck his third
      victim, Diane Collins, a fourteen year-old fellow student. Diane Collins
      died as a result of being shot in the neck.

             James Nichols, a teacher, was very close to the defendant when the
      defendant shot and killed Diane Collins. Unaware of whether anyone had
      been hit, Nichols immediately grabbed for the rifle and demanded that the
      defendant give it to him. Nichols and the defendant began to struggle over
      the rifle and once again the rifle fired into the crowded hallway.
      Fortunately, this shot entered the ceiling. During the struggle, the
      defendant resisted all of Nichol’s efforts to remove the rifle from him,
      saying, “I can’t. I went too far.” Ralph Johnson, a teacher, and two
      students helped Nichols subdue and disarm the defendant.

State v. James Ellison Rouse, No. M1999-01807-CCA-R3-CD, 2000 WL 1133682, at *1
(Tenn. Crim. App. at Nashville, Aug. 10, 2000).

       In addition to the evidence presented above, two expert witnesses testified for the
Petitioner that he was suffering from paranoid schizophrenia at the time of the shootings.
See id. at *5. On rebuttal, the State presented its own experts, who testified that the
Petitioner “was not suffering from any major mental illness at the time of the offense[s]
that would have rendered him incapable of controlling or understanding his actions.” Id.
The jury accredited the State’s expert witnesses and convicted the Petitioner as charged.
Id.
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        Subsequently, the trial court held a separate sentencing hearing pursuant to
Tennessee Code Annotated section 39-13-207(a), which provides that the jury shall
determine the defendant’s punishment in a first degree murder case when the State does
not seek the death penalty but seeks life without the possibility of parole. See id. at *2.
During the hearing, the State presented three witnesses. Id. at *3. The Petitioner
presented eight witnesses, including his parents. Id. at *4. The Petitioner’s school
records were introduced into evidence through a guidance counselor from his high
school, and the records showed that he was “on track” to graduate at the time of the
shootings. Id. On cross-examination by the State, the guidance counselor testified that
neither the Petitioner nor his family ever requested psychiatric or psychological testing or
intervention for him. Id. An employee at the Rutherford Juvenile Detention Center,
where the Petitioner was housed before trial, testified for him that “he prayed very
frequently, was generally remorseful, and had purchased, on his own accord, a case of
Bibles for the Center.” Id. A therapist from Middle Tennessee Mental Health Institute
testified that the Petitioner was very remorseful and suffered from suicidal ideation and
depression. Id.

        At the conclusion of the hearing, the jury found the following aggravating
circumstance applicable to the first degree murders of Carolyn Foster and Diane Collins
pursuant to Tennessee Code Annotated section 39-13-204(i)(3): that “[t]he defendant
knowingly created a great risk of death to two (2) or more persons, other than the victim
murdered, during the act of murder.” See id. at *4. The jury also found the following
aggravating circumstance applicable to the first degree murder of Carolyn Foster
pursuant to Tennessee Code Annotated section 39-13-204(i)(7): that “[t]he murder was
knowingly committed . . . while the defendant had a substantial role in committing or
attempting to commit . . . any first degree murder.” See id. Accordingly, the jury
imposed sentences of life without the possibility of parole for both convictions. Id. The
trial court then conducted its own sentencing hearing and sentenced the Petitioner to
twenty-five years for each attempted first degree murder conviction and ordered that the
Petitioner serve all of the sentences consecutively for a total effective sentence of two
terms of life without the possibility of parole plus fifty years. See id. at *6.

       On appeal of his convictions to this court, the Petitioner challenged only the
sentences imposed. Id. at *2. This court affirmed the Petitioner’s two sentences of life
without the possibility of parole and the trial court’s ordering consecutive sentencing,
noting that “as this crime and its impact on the families and the community were most
severe, upon a finding of guilt, only a severe and lengthy punishment would be
appropriate.” Id. at *8. However, this court modified the Petitioner’s twenty-five-year
sentences to twenty-one-years, resulting in a total effective sentence of two terms of life
without parole plus forty-two years. Id.
                                           -3-
        Our supreme court denied the Petitioner’s application for permission to appeal on
February 26, 2001. More than fifteen years later, on December 12, 2016, he filed a
petition for post-conviction relief, claiming that he should receive an opportunity for
parole based upon recent rulings by the United States Supreme Court and that his
consecutive sentences violated the Eight Amendment’s protection against cruel and
unusual punishment. The post-conviction court found that the petition stated a colorable
claim and appointed counsel. Post-conviction counsel filed an amended petition,
asserting that the Petitioner’s sentences ran “afoul” of Miller v. Alabama, 567 U.S. 460,
479, 132 S. Ct. 2455, 2469 (2012), because the United States Supreme Court said in
Miller that sentencing juveniles to life without the possibility of parole “will be
uncommon.” The State responded to the petition, arguing that it was barred by the one-
year statute of limitations; that the Petitioner was not entitled to tolling of the statute of
limitations; and that, in any event, the Petitioner was not entitled to relief under Miller
because a jury sentenced him to life without the possibility of parole. The Petitioner filed
a second amended petition for post-conviction relief, contending that he was entitled to
have all of his sentences run concurrently pursuant to this court’s opinion in Jacob Brown
v. State, No. W2015-00887-CCA-R3-PC, 2016 WL 1562981 (Tenn. Crim. App. at
Jackson, Apr. 15, 2016).

       On April 13, 2018, the post-conviction court held a hearing on the petitions.
During the hearing, post-conviction counsel argued that because the Petitioner filed his
pro se petition within one year of Montgomery v. Louisiana, 136 S. Ct. 718 (2016),
which “clarified” Miller and held that Miller applied retroactively, his petition was
timely. On the merits of the petition, post-conviction counsel conceded that the
Petitioner’s case did not fall “squarely” within the concept of Miller because Miller
barred mandatory sentences of life without parole for juveniles whereas a jury sentenced
the Petitioner to life without parole. Nevertheless, post-conviction counsel argued that
under Miller, Montgomery, and Jacob Brown, the Petitioner’s consecutive sentences
were excessive.

        In a written order, the post-conviction court denied the petition for post-conviction
relief. First, the court found that the United States Supreme Court’s holding in Miller did
not apply to the Petitioner because the Petitioner “was sentenced by a jury after a
sentencing hearing at which he was permitted to present mitigating evidence, including,
evidence that emphasized his youth, immaturity and testimony regarding his mental
health.” The court also found that the Petitioner was not entitled to relief under Jacob
Brown because this court considered the Petitioner’s consecutive sentences on direct
appeal of his convictions, reduced his sentences for attempted first degree murder but left
consecutive sentencing “intact,” and stated that “‘[o]nly a severe and lengthy punishment
would be appropriate’” in this case. Finally, the post-conviction court concluded that the
                                            -4-
petition was untimely because Miller did not create a new rule of constitutional law that
was applicable to the Petitioner.

                                        II. Analysis

        On appeal, the Petitioner maintains that his petition was timely because he filed it
within one year of the United States Supreme Court’s decision in Montgomery and this
court’s decision in Jacob Brown. He also contends that his consecutive sentences “run
afoul” of the United States Supreme Court’s logic in Miller and violate the Eighth
Amendment’s prohibition against cruel and unusual punishment pursuant to Jacob
Brown. The State argues that the petition was time-barred because the Petitioner filed it
more than one year after the United States Supreme Court’s decision in Miller and that
neither Montgomery nor Jacob Brown announced a new rule of constitutional law that
tolled the statute of limitations. We agree with the State.

       “Relief under [the Post-Conviction Procedure Act] shall be granted 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.”
Tenn. Code Ann. § 40-30-103. However, to obtain relief, the post-conviction petition
must be filed within one year of the final action of the highest state appellate court to
which an appeal is taken. Tenn. Code Ann. § 40-30-102(a); see also Williams v. State,
44 S.W.3d 464, 468 (Tenn. 2001). The statute emphasizes that “[t]ime is of the essence
of the right to file a petition for post-conviction relief” and that “the one-year limitations
period is an element of the right to file such an action and is a condition upon its
exercise.” Tenn. Code Ann. § 40-30-102(a).

       Clearly, the Petitioner filed his post-conviction petition well-outside the one-year
statute of limitations. Pursuant to Tennessee Code Annotated section 40-30-102(b), a
court does not have jurisdiction to consider a petition for post-conviction relief if it was
filed outside the one-year statute of limitations unless (1) “[t]he 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”; (2) “[t]he claim in the petition is based upon new scientific evidence
establishing that such petitioner is actually innocent of the offense or offenses for which
the petitioner was convicted”; or (3) the claim in the petition “seeks relief from a
sentence that was enhanced because of a previous conviction and such 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[.]” The Petitioner contends
that the first exception applies in this case. In that regard, the petition “must be filed
within one (1) year of the ruling of the highest state appellate court or the United States

                                            -5-
supreme court establishing a constitutional right that was not recognized as existing at the
time of trial.” Tenn. Code Ann. § 40-30-102(b)(1).

        Our supreme court has held that due process also may require tolling the statute of
limitations. Whitehead v. State, 402 S.W.3d 615, 622-23 (Tenn. 2013). “[A] post-
conviction petitioner is entitled to due process tolling of the one-year statute of
limitations upon 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.” Bush v. State, 428 S.W.3d 1, 22 (Tenn. 2014) (citing
Whitehead, 402 S.W.3d at 361). In explaining the first prong of the analysis, the court
stated that “pursuing one’s rights diligently ‘does not require a prisoner to undertake
repeated exercises in futility or to exhaust every imaginable option, but rather to make
reasonable efforts [to pursue his or her claim].’” Id. (quoting Whitehead, 402 S.W.3d at
631). “[T]he second prong is met when the prisoner’s attorney of record abandons the
prisoner or acts in a way directly adverse to the prisoner’s interests, such as by actively
lying or otherwise misleading the prisoner to believe things about his or her case that are
not true.” Whitehead, 402 S.W.3d at 631. Moreover, tolling “‘must be reserved for those
rare instances where—due to circumstances external to the party’s own conduct—it
would be unconscionable to enforce the limitation period against the party and gross
injustice would result.’” Id. at 631-32 (quoting Harris v. Hutchinson, 209 F.3d 325, 330
(4th Cir. 2000)). “The question of whether the post-conviction statute of limitations
should be tolled is a mixed question of law and fact that is . . . subject to de novo review.”
Bush, 428 S.W.3d at 16 (citing Smith v. State, 357 S.W.3d 322, 355 (Tenn. 2011)).
Generally, “appellate courts must defer to a post-conviction court’s findings with regard
to witness credibility, the weight and value of witness testimony, and the resolution of
factual issues presented by the evidence.” Whitehead, 402 S.W.3d at 621 (citing Momon
v. State, 18 S.W.3d 152, 156 (Tenn. 1999)).

       In June 2012, the United States Supreme Court held in Miller that a mandatory
sentence of life without the possibility of parole for a juvenile offender violates the
United States Constitution’s Eighth Amendment prohibition against cruel and unusual
punishment. 567 U.S. at 470. The Court did not hold in Miller, though, that a juvenile
could never be sentenced to life without the possibility of parole. Charles Everett Lowe-
Kelley v. State, No. M2015-00138-CCA-R3-PC, 2016 WL 742180, at *9 (Tenn. Crim.
App. at Nashville, Feb. 24, 2016) (citing Miller, 132 S. Ct. at 2469). Instead, the Court
required “a certain process—considering an offender’s youth and attendant
characteristics—before imposing a particular penalty.” Miller, 567 U.S. at 483; see
Cedrick Dickerson v. State, No. W2013-01766-CCA-R3-PC, 2014 WL 3744454, at *5
(Tenn. Crim. App. at Jackson, July 28, 2014) (holding that defendant’s sentence of life
without parole did not run afoul of Miller when the record demonstrated that the trial
court “provided the exact consideration that the Supreme Court called for in Miller”).
                                            -6-
Nevertheless, the Court warned that “appropriate occasions for sentencing juveniles to
this harshest possible penalty will be uncommon. That is especially so because of the
great difficulty . . . of distinguishing at this early age between ‘the juvenile offender
whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender
whose crime reflects irreparable corruption.’” Id. at 479-80 (quoting Roper v. Simmons,
543 U.S. 551, 573 (2005)).

       In January 2016, the United States Supreme Court considered in Montgomery
“whether Miller’s prohibition on mandatory life without parole for juvenile offenders
indeed did announce a new substantive rule that, under the Constitution, must be
retroactive.” 136 S. Ct. at 732. Concluding that Miller announced a new substantive rule
of constitutional law that must be applied retroactively, the Court discussed its holding in
Miller as follows:

       Miller, it is true, did not bar a punishment for all juvenile offenders . . . .
       Miller did bar life without parole, however, for all but the rarest of juvenile
       offenders, those whose crimes reflect permanent incorrigibility. . . . Before
       Miller, every juvenile convicted of a homicide offense could be sentenced
       to life without parole. After Miller, it will be the rare juvenile offender who
       can receive that same sentence. . . . Miller drew a line between children
       whose crimes reflect transient immaturity and those rare children whose
       crimes reflect irreparable corruption. The fact that life without parole could
       be a proportionate sentence for the latter kind of juvenile offender does not
       mean that all other children imprisoned under a disproportionate sentence
       have not suffered the deprivation of a substantive right.

Id. at 734.

        In Jacob Brown, a jury convicted the petitioner of two counts of first degree
murder for beating an elderly couple to death in their home with a baseball bat. No.
W2015-00887-CCA-R3-PC, 2016 WL 1562981, at *1-2 (Tenn. Crim. App. at Jackson,
Apr. 15, 2016). The petitioner was sixteen years old at the time of the crimes. Id. at *1.
Like this case, the trial court held a separate sentencing hearing, and the jury determined
that the petitioner should serve two terms of life without the possibility of parole. Id.
The trial court ordered that the petitioner serve the sentences, along with an eight-year
sentence for aggravated burglary, consecutively. Id. In appealing the post-conviction
court’s denial of his petition for post-conviction relief to this court, a panel of this court
refused to hold that the petitioner’s sentences of life without the possibility of parole ran
afoul of Miller because the sentences were not mandatory and were imposed by a jury
after a sentencing hearing in which the Petitioner was able to present mitigating evidence.
Id. at *7. However, the panel expressed “misgivings” about the petitioner’s consecutive
                                            -7-
sentencing “in light of the Supreme Court’s repeated emphasis that ‘children are
constitutionally different than adults,’ [Montgomery, 136 S. Ct.] at 736, and its warnings
against the imposition of excessive punishments against juvenile offenders.” Id. The
panel went on to conclude that “consecutive alignment of the petitioner’s sentences does
not comport with the recent rulings of the United States Supreme Court” and remanded
the case to the trial court for entry of corrected judgments of conviction to reflect
concurrent sentencing. Id. at *8.

       Turning to the instant case, we initially note that, like the sentences in Jacob
Brown, the Petitioner’s sentences of life without the possibility of parole do not directly
contravene Miller because they were not mandatory but were imposed by a jury after a
sentencing hearing in which the Petitioner was able to present mitigating evidence. In
any event, we agree with the post-conviction court that the Petitioner’s petition for post-
conviction relief was untimely. Miller announced a new rule of constitutional law
whereas Montgomery addressed Miller’s holding for retroactivity purposes.
Montgomery held that Miller must be applied retroactively but did not announce a new
substantive rule of constitutional law. See Jermaine Stevenson v. Jeffrey Woods, No.
2:16-CV-90, 2019 WL 441947, at *2 (W.D. Mich. Feb. 5, 2019); Frankie Gonzalez v.
Baltazar, No. CR 96-114 (JBS), 2018 WL 6303826, at *4 (D.N.J. Nov. 28, 2018);
Cheyenne A. Moore v. Martin, No. CIV-18-409-R, 2018 WL 6016983, at *1-2 (W.D.
Okla. June 7, 2018); Doiakah Gray v. Dorethy, No. 17 C 258, 2017 WL 4263985, at *2
(N.D. Ill. Sept. 26, 2017); Malvo v. Mathena, 259 F. Supp. 3d 321, 330 (D. Md. 2017);
Clem v. Fleming, 664 F. App’x 272, 275 (4th Cir. 2016); State v. Goynes, 876 N.W.2d
912, 919 (Neb. 2016). Likewise, Jacob Brown applied the holdings in Miller and
Montgomery to grant the petitioner relief on his consecutive sentencing claim but did not
announce a new substantive rule of constitutional law.

       The statute of limitations begins to run when the new substantive rule is
announced, not when a subsequent decision makes that decision retroactive. Dodd v.
United States, 545 U.S. 353, 356-60 (2005). Accordingly, the statute of limitations in
this case began to run on June 25, 2012, when the United States Supreme Court
announced its decision in Miller, and expired one year later on June 25, 2013. Because
the Petitioner filed his petition for post-conviction relief on December 12, 2016, the post-
conviction court properly ruled that the petition was untimely.

       Moreover, the Petitioner has not made any argument or showing as to why the
one-year limitations period should be tolled on due process grounds. He has not offered
any explanation as to why he waited more than three years after the statute of limitations
expired to file his petition for post-conviction relief. Accordingly, we affirm the post-
conviction court’s denial of the petition.

                                           -8-
                                  III. Conclusion

     Based upon the oral arguments, the record, and the parties’ briefs, we affirm the
judgment of the post-conviction court.


                                               _________________________________
                                               NORMA MCGEE OGLE, JUDGE




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