         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs December 15, 2004

                MICHAEL BRAXTON v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Davidson County
                          No. 97-B-1350     Steve Dozier, Judge



                     No. M2004-00791-CCA-R3-PC - Filed May 31, 2005


The petitioner, Michael Braxton, was convicted by a jury in the Davidson County Criminal Court
of aggravated rape and aggravated assault. He received a total effective sentence of twenty-three
years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed
a petition for post-conviction relief, which petition the post-conviction court summarily dismissed
as being untimely. The petitioner appeals the dismissal, arguing that his petition was not barred by
the statute of limitations. Upon our review of the record and the parties’ briefs, we reverse the
judgment of the post-conviction court and remand for a hearing on the timeliness of the petitioner’s
petition.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN
EVERETT WILLIAMS, JJ., joined.

Michael Braxton, Only, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Pamela Anderson, Assistant District Attorney
General, for the appellee, State of Tennessee

                                            OPINION

                                      I. Factual Background

       On March 24, 1998, the petitioner was convicted of aggravated rape and aggravated assault.
The petitioner, then represented by counsel, filed a timely notice of appeal. This court affirmed the
convictions on direct appeal. See State v. Michael Braxton, No. M1998-00255-CCA-R3-CD, 1999
WL 1072866, at *1 (Tenn. Crim. App. at Nashville, Nov. 29, 1999). On January 28, 2000, the
petitioner, proceeding pro se, filed an application for permission to appeal to our supreme court. On
June 26, 2000, our supreme court denied permission to appeal.

        On February 14, 2003, the petitioner sent a letter by certified mail to the supreme court clerk
inquiring about the status of his application for permission to appeal. A copy of this letter was
apparently forwarded to the petitioner’s trial counsel by the supreme court clerk. On March 3, 2003,
the petitioner’s trial counsel sent the petitioner a letter. Therein, trial counsel explained:

                        I have checked my file. It appears that I did receive a copy of
                 the Supreme Court’s Order dated June 26, 2000. I am enclosing a
                 copy of that also. . . . My file does not include any letter from me to
                 you regarding this Order. I have concluded that, since I was not
                 representing you in connection with your Application for Permission
                 to Appeal to the Supreme Court, I did not send you a copy of the
                 Order. Frankly, while I cannot remember exactly what I thought at
                 the time, I believe that I must have assumed that the Court would
                 send you a copy of the Order since you filed the Application pro se.

        Thereafter, on February 24, 2004, the petitioner filed three separate documents in the
Davidson County Criminal Court. First, the petitioner filed a “Motion to Amend Judgment of
Conviction,” wherein the petitioner requested pretrial jail credits.1 Second, the petitioner filed a
“Motion to Toll the One (1) Year Statute of Limitation of the State Post Conviction Statute.” In this
motion, the petitioner alleged that following this court’s opinion on his direct appeal, he filed a pro
se application for permission to appeal to the supreme court. He further alleged that the supreme
court clerk failed to notify him that his application had been denied. The petitioner contended that
although his trial counsel had properly withdrawn following this court’s opinion, notice was sent by
the supreme court clerk to his former trial counsel, not to the petitioner. Counsel did not provide the
petitioner notice of the denial of his application for permission to appeal. Accordingly, the petitioner
argued that due to his failure to receive notice of the denial of his application for permission to
appeal, he did not timely file his petition for post-conviction relief. Finally, the petitioner filed a
petition for post-conviction relief, alleging numerous instances of ineffective assistance of counsel.

         The post-conviction court summarily dismissed the petition without an evidentiary hearing,
finding that the petition was untimely. The court discounted the petitioner’s claim that he had not
received notice of the supreme court’s denial of his application for permission to appeal. The post-
conviction court noted, “The Court’s records indicate that the mandate from the Supreme Court was
sent to the Tennessee Department of Corrections. . . . Therefore, the Court is of the opinion that the
petition should be overruled and dismissed without a hearing.” The petitioner now appeals this
ruling.

                                                   II. Analysis

       1
           This motion has no bearing on the instant case.

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       We begin our analysis by noting that post-conviction “[r]elief under this part 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 (2003). The Post-Conviction Procedure Act provides that

               a person in custody under a sentence of a court of this state must
               petition for post-conviction relief under this part within one (1) year
               of the date of the final action of the highest state appellate court to
               which an appeal is taken . . . or consideration of such petition shall be
               barred. . . . Time is of the essence of the right to file a petition for
               post-conviction relief . . . and the one-year limitations period is an
               element of the right to file such an action and is a condition upon its
               exercise. Except as specifically provided in subsections (b) and (c),
               the right to file a petition for post-conviction relief . . . shall be
               extinguished upon the expiration of the limitations period.

Tenn. Code Ann. § 40-30-102(a) (2003).

        However, Tennessee courts “have previously recognized that in certain circumstances, strict
application of the statute of limitations would deny a defendant a reasonable opportunity to bring a
post-conviction claim and thus, would violate due process.” Williams v. State, 44 S.W.3d 464, 468
(Tenn. 2001). Notably, our supreme court has “emphasized that a post-conviction petitioner should
not be denied a reasonable opportunity to raise a claim due to another’s misconduct.” Sample v.
State, 82 S.W.3d 267, 277 (Tenn. 2002); see also Williams, 44 S.W.3d at 468.

        We find that the factual scenario in the instant case is analogous to that presented in
Williams. In Williams, the petitioner filed a petition for post-conviction relief nine months after the
statute of limitations had expired, alleging that counsel failed to notify him of his intent to withdraw
after the petitioner’s convictions were affirmed on direct appeal by this court. 44 S.W.3d at 466 n.4.
Additionally, counsel failed to file an application for permission to appeal to the Tennessee Supreme
Court. Id. Our supreme court reversed the dismissal of the petition and granted the petitioner an
evidentiary hearing, noting that “the record indicates that [the petitioner] might have been denied the
opportunity to challenge his conviction in a timely manner through no fault of his own but because
of the possible misrepresentation of his counsel.” Id. at 468. The court stated, “If a defendant
erroneously believes that counsel is continuing to represent him or her, then the defendant is
essentially precluded from pursuing certain remedies independently.” Id. at 469.

        In this case, the petitioner contends that the supreme court clerk’s office failed to provide
notice as to when his application for permission to appeal to the supreme court had been denied.
Thus, he alleges that through no fault of his own, he was unaware of the date that his direct appeal
had concluded and the statute of limitation to file a post-conviction petition began to run. Id. at 469
(stating that “the Post Conviction Procedure Act clearly contemplates that a post-conviction petition
is appropriately filed only after the direct appeal process had concluded”); see also Eric Wright v.


                                                  -3-
State, No. W2001-00386-CCA-R3-PC, 2001 WL 1690194, at *2 (Tenn. Crim. App. at Jackson, Dec.
17, 2001). Importantly, we can find no evidence in the record before us to support the post-
conviction court’s finding “that the mandate from the Supreme Court was sent to the Tennessee
Department of Corrections.” Regardless, even if notice of the mandate had been sent to the
Tennessee Department of Correction, such would not constitute evidence that the petitioner received
notice. Therefore, we are constrained to reverse the post-conviction court’s summary denial of the
petition and remand for appointment of counsel and for an evidentiary hearing “to determine (1)
whether due process tolled the statute of limitations so as to give the [petitioner] a reasonable
opportunity after the expiration of the limitations period to present his claim in a meaningful time
and manner; and (2) if so, whether the [petitioner’s] filing of the post-conviction petition in
[February 2004] was within the reasonable opportunity afforded by the due process tolling.”
Williams, 44 S.W.3d at 471.

                                         III. Conclusion

      Accordingly, we reverse the post-conviction court’s dismissal of the petitioner’s claim and
remand for further proceedings consistent with this opinion.


                                                      ___________________________________
                                                      NORMA McGEE OGLE, JUDGE




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