                                                                                         04/28/2020
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                         Assigned on Briefs March 24, 2020

            ABRAHAM A. AUGUSTIN v. STATE OF TENNESSEE

                Appeal from the Criminal Court for McMinn County
                  No. 05-553        Andrew M. Freiberg, Judge
                     ___________________________________

                            No. E2019-01739-CCA-R3-PC
                       ___________________________________

The Petitioner, Abraham A. Augustin appeals the post-conviction court’s summary
dismissal of his pro se petition for post-conviction relief. The Petitioner maintains that
the statute of limitations should be tolled based on newly discovered evidence. After a
review of the record and applicable law, we affirm the post-conviction court’s summary
dismissal of the petition.


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

JOHN EVERETT WILLIAMS, P.J., delivered the opinion of the court, in which THOMAS T.
WOODALL and ROBERT L. HOLLOWAY, JR., JJ., joined.

Abraham Augustin, pro se, Coleman, Florida.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Assistant
Attorney General; and Stephen D. Crump, District Attorney General, for the appellee,
State of Tennessee.


                                       OPINION

                   FACTS AND PROCEDURAL BACKGROUND

       In September of 2006, the Petitioner pleaded guilty to three counts of accessory
after the fact of attempted first degree murder. The trial court imposed concurrent
sentences of two years for each count. The judgments were entered on September 14,
2006.

      On March 1, 2019, the Petitioner filed a petition for post-conviction relief, arguing
that his pleas were not knowingly and voluntarily entered because of trial counsel’s
ineffectiveness. The Petitioner asserted that trial counsel “failed to research the law to
know the elements of First Degree Murder, Attempted First Degree Murder, and any
Accessory offenses charged in connection with an Attempted First Degree Murder
offense.” The Petitioner argued that because the principal, Mr. Marcus Bradford, was not
convicted of attempted first degree murder, the Petitioner was actually innocent of the
offenses for which he was convicted and, therefore, did not enter a knowing and
voluntary plea. The Petitioner also asserted that trial court failed to inform him that he
would be deported as a result of his convictions.

        On March 7, 2019, the post-conviction court entered an order summarily
dismissing the petition as untimely. The post-conviction court noted that the Petitioner
was sentenced on September 14, 2006, that the judgments became final on October 14,
2006, that the Petitioner was statutorily required to file a petition for post-conviction
relief on or before October 14, 2007, and that the petition was not filed until March 1,
2019. Further, the post-conviction court found that the Petitioner failed to assert a basis
upon which to toll the one-year statute of limitations.

        The Petitioner filed a motion to reconsider the dismissal of his petition on July 22,
2019. In that motion, the Petitioner asserted that because he was actually innocent of the
convicted offenses, he is entitled to tolling of the statute of limitations. The post-
conviction court entered an order finding that the Tennessee Rules of Criminal Procedure
do not recognize a motion to reconsider. Accordingly, the post-conviction court found
that its previous order remained in effect, unaltered and undisturbed. On September 26,
2019, the Petitioner filed a motion requesting that this court accept his late notice of
appeal, and this court granted his motion.

                                       ANALYSIS

        The Petitioner maintains that he is entitled to tolling of the one-year statute of
limitations based on the verdict in Mr. Bradford’s trial, which he asserts constitutes
newly discovered evidence. He contends that because Mr. Bradford was not convicted of
attempted first degree murder, the Petitioner could not have been convicted of accessory
after the fact and, therefore, did not enter a knowing and voluntary plea. The State
asserts that the post-conviction court did not err because the petition was untimely and
does not satisfy a statutory exception or tolling for due process considerations. We agree
with the State.

       This court reviews a post-conviction court’s summary dismissal of a post-
conviction petition de novo. See Burnett v. State, 92 S.W.3d 403, 406 (Tenn. 2002).
Post-conviction relief is available to petitioners for any conviction or sentence that 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. A petition
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for post-conviction relief is required to be filed “within one (1) 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 (1) year of the date on which the judgment became final.” T.C.A. §
40-30-102(a). As a general rule, a trial court’s judgment becomes final thirty days after
its entry “unless a timely notice of appeal or specified post-trial motion is filed.” State v.
Peele, 58 S.W.3d 701, 704 (Tenn. 2001).

       The judgments were entered on September 14, 2006, and became final thirty days
later. See Tenn. R. App. P. 4(a). The Petitioner had until October 14, 2007, to file a
petition for post-conviction relief. However, he did not file his petition for post-
conviction relief until March 1, 2019, over twelve years after his judgments became final
and over eleven years after the expiration of the one-year statute of limitations.

        There are three statutory exceptions to the statute of limitations for filing a petition
for post-conviction relief. T.C.A. § 40-30-102(b). In order to meet the exceptions, a
petitioner must base a claim on a new rule of constitutional law that requires retrospective
application, new scientific evidence that establishes actual innocence, or asserts that he is
entitled to relief from sentences that were enhanced because of a previous conviction that
has subsequently been found to be illegal. T.C.A. §40-30-102(b). Additionally, due
process may necessitate the tolling of the statute of limitations. See Seals v. State, 23
S.W.3d 272, 278-79 (Tenn. 2000). “Issues regarding whether due process require[s] the
tolling of the post-conviction statute of limitations are mixed questions of law and fact
and are, therefore, subject to de novo review.” Whitehead v. State, 402 S.W.3d 615, 621
(Tenn. 2013). A 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 631). In Whitehead, our supreme court identified three
circumstances that allow for equitable tolling: 1) when the claim for relief arises after the
statute of limitations has expired; 2) when a petitioner’s mental incapacities prevent the
petitioner from filing prior to the expiration of the statute of limitations; and 3) when
attorney misconduct necessitates the tolling of the statute of limitations. Whitehead, 402,
S.W.3d at 620-21.

       The State maintains that the Petitioner waived his claim of tolling based upon
newly discovered evidence by failing to include the claim in his post-conviction petition.
In the Petitioner’s reply brief, he claims that he raised an equitable tolling argument in his
motion to reconsider, which he filed fourteen days after the post-conviction court
dismissed his petition. In the reply brief, the Petitioner notes that “circuit court’s clerk of
court never docketed the receipt of this document.” The post-conviction court entered its
order summarily dismissing the petition on March 7, 2019. On July 22, 2019, the
Petitioner filed a motion to reconsider, in which he argued that he was entitled to
equitable tolling of the statute of limitations “because he is actually innocent of the
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offenses of conviction.” On August 7, 2019, the post-conviction court entered an order
finding that it would not reconsider the petition because “[t]he Tennessee [R]ules of
Criminal Procedure do not recognize a motion to reconsider.” See State v. Turco, 108
S.W.3d 244, 245 n.2 (Tenn. 2003); see also Calvin Douglas v. State, No. W2017-00762-
CCA-R3-PC, 2018 WL 1151949, at *2 (Tenn. Crim. App. Mar. 2, 2018) (“We note that
filing a motion to reconsider after the denial of a post-conviction petition is not proper
procedure.”). The post-conviction was correct in its finding that it did not have to
consider the Petitioner’s motion to reconsider. Because that motion was the first time
that the Petitioner raised the tolling argument, that argument is waived. Regardless of the
waiver, the Petitioner has failed to establish a basis for tolling. The Petitioner provides
no details regarding the verdict in Mr. Bradford’s trial or when the verdict was rendered.
We conclude that such a claim does not justify the filing of a post-conviction petition
more than eleven years after the expiration of the statute of limitations. Accordingly, the
post-conviction court did not err in summarily dismissing the petition as untimely.

                                    CONCLUSION

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




                                   JOHN EVERETT WILLIAMS, PRESIDING JUDGE




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