         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs February 6, 2007

                    JAMES D. WEST v. STATE OF TENNESSEE

                      Appeal from the Circuit Court for Madison County
                            No. C-06-107    Donald Allen, Judge



                     No. W2006-01320-CCA-R3-PC - Filed June 29, 2007


The petitioner, James D. West, appeals from the Madison County Circuit Court’s summary dismissal
of his petition for post-conviction relief. The petitioner claimed in his petition that he was entitled
to relief from the state’s incarcerating him following an eleven-year delay in execution of his
sentence. We hold that the petitioner stated a cognizable claim for post-conviction relief, reverse
the trial court’s dismissal, and remand for appointment of counsel and a hearing on the allegations.

      Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed,
                                      Case Remanded

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and
D. KELLY THOMAS, JR., JJ., joined.

James D. West, Bradford, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Rachel West Harmon, Assistant Attorney
General; James G. (Jerry) Woodall, District Attorney General; and Alfred Lynn Earls, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                             OPINION

        According to the post-conviction petition, the petitioner was convicted on guilty pleas of
violation of the Habitual Motor Vehicle Offender Act, two counts of aggravated assault, and two
counts of reckless endangerment. He alleges that judgments were entered on December 20, 1995,
and that he attempted for eighteen to twenty-four months thereafter to serve his sentence but that he
was turned away from the Madison County Jail due to overcrowding. The petitioner filed the
present post-conviction petition on March 28, 2006, after the state incarcerated him for the offenses.
He alleges that the state’s eleven-year delay in executing his sentences was an undue one and that
it constitutes arbitrary and capricious state action in violation of the Fourteenth Amendment and
Kelly v. State, 61 S.W.3d 341 (Tenn. Crim. App. 2000). He also alleges that his claim is a later
arising one which should not be barred by the statute of limitations because it could not have been
brought within the limitations period.

         In a separate proceeding, the petitioner has also attempted to obtain habeas corpus relief,
which the trial court denied. On appeal, this court held that the facts of the petitioner’s case did not
entitle him to relief. The Tennessee Supreme Court denied his application for discretionary review.
See James D. West v. Kenneth W. Locke, Warden, No. M2006-00291-CCA-R3-HC, Davidson
County (Tenn. Crim. App., Jan. 17, 2007), app. denied (Tenn. May 21, 2007).

         In the proceedings below, the trial court dismissed the post-conviction petition on the
grounds that it was time-barred and that the claims previously had been determined by a court of
competent jurisdiction. The defendant claims in this appeal that the trial court erred in dismissing
the petition without a hearing. The state argues that the petition is untimely and that the petitioner
is not entitled to relief on the merits of his claim because he was at fault for failing to report to serve
his jail sentence.

        In his brief, the petitioner alleges additional facts which were not stated in his petition. He
says that he was in Gibson County custody for other convictions when he entered the guilty pleas
for the offenses in the present case. He says that he was transferred to an inpatient treatment
program in Madison County on December 18, 1995 and that he remained there until March 1996.
He states that he was informed by the staff of the treatment facility on January 16, 1996 that there
was a capias for him but that the capias would be recalled due to his residency in the inpatient
program. The petitioner says that when he was released from the treatment program in March 1996,
the program’s staff verified that there was not an active capias for the petitioner in either Madison
County or Gibson County.

        The petition was dismissed without appointment of counsel or a hearing. As such, our
analysis is limited to whether the petition stated a cognizable claim for post-conviction relief. See
T.C.A. § 40-30-106 (outlining trial court’s duties on preliminary consideration of post-conviction
petitions).

        Because the petition was not filed within one year of the 1995 conviction judgments, we
consider first whether the petition for post-conviction relief asserts facts demonstrating that relief
was not barred by the one year statute of limitations. See T.C.A. § 40-30-102(a). In this respect, the
state’s delay in the execution of a sentence may qualify as a later-arising claim for post-conviction
relief which does not ripen before expiration of the statute of limitations but is nevertheless
cognizable on due process grounds. State v. McKnight, 51 S.W.3d 559, 563 (Tenn. 2001); Kelly v.
State, 61 S.W.3d 341, 347 (Tenn. Crim. App. 2000); see Burford v. State, 845 S.W.2d 204 (Tenn.
1995). The petition alleges that the state waited eleven years to execute his four year sentence and
that the petitioner’s claim did not ripen until after expiration of the statute of limitations. We hold
that these allegations state a sufficient factual basis to avoid summary dismissal on the basis of the
statute of limitations.



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        Assuming for purposes of the present inquiry that the petition is not barred by the statute of
limitations, the next question is whether the petition sufficiently states a claim for post-conviction
relief. Post-conviction relief is available if a conviction or sentence is void or voidable because of
the denial of a constitutional right. T.C.A. § 40-30-103. A claim that the state has engaged in an
excessive delay in the execution of an incarcerative sentence implicates due process concerns and
is a proper basis for post-conviction relief. McKnight, 51 S.W.3d at 567. In examining due process
claims of this nature, this court has outlined the following requirements for relief:

       1. There is no fault attributable to the defendant.

       2. The State’s actions constitute more then mere negligence, i.e., the State’s actions
       are affirmatively improper or grossly negligent.

       3. The defendant’s incarceration is unequivocally inconsistent with fundamental
       principles of liberty and justice.

       Ultimately, in order to determine whether the defendant’s incarceration is
       unequivocally inconsistent with fundamental principles of liberty and justice, a court
       must examine the totality of circumstances, including the length of the delay and
       whether, since [his or] her conviction, the defendant has re-established [himself or]
       herself as a productive member of society.

Kelly, 61 S.W.3d at 346 (citations omitted).

         Measuring the petitioner’s allegations against these standards, we hold that the petitioner
sufficiently alleged a colorable claim for post-conviction relief. The defendant’s allegations include
that he attempted to serve his sentence for eighteen to twenty-four months after his convictions but
was turned away at the jail, that the state waited eleven years to attempt to execute the sentence, and
that he has reestablished himself as a productive member of society. The allegations further state
that the petitioner had maintained a residence at the address which the court has had on file, that he
had maintained employment, that he had been a residential caretaker of his disabled father, and that
he had paid the fines and costs associated with his convictions. These allegations are sufficient to
state a cognizable claim for post-conviction relief, and the trial court should not have dismissed the
petition without appointing counsel and conducting a hearing on the claim.

        In so holding, we have not overlooked the decision of this court in the petitioner’s habeas
corpus case. In that case, this court said that the trial court’s dismissal of the petition was harmless
error based upon “the admissions made by the petitioner on appeal regarding his failure to report for
service of the sentence[.]” We have examined the appellate record of that case. See Delbridge v.
State, 742 S.W.2d 266, 267 (Tenn. 1987) (“The courts may take judicial notice of the court records
in an earlier proceeding of the same case and the actions of the courts thereon.”); State ex rel.
Wilkerson v. Bomar, 213 Tenn. 499, 376 S.W.2d 451 (1964) (same). In so doing, we note that the
petitioner did not allege in his habeas corpus petition that he had attempted, for some period of time,


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to report to serve the sentence but had been turned away from the jail. In his appellate brief in that
case, he stated that the staff at the treatment program verified he had no outstanding warrants before
he left the treatment facility. He also stated that after leaving the treatment program, he lived and
worked in Madison County for eleven years, but he did not state that he had attempted at any point
during this time to serve his jail sentence. Thus, the court’s conclusion in that case that the petitioner
had conceded on appeal that he did not report to serve his sentence is not fatal to the petitioner in the
present case. In any event, the question before us, whether the petitioner stated a sufficient factual
basis for post-conviction relief such that his petition should not have been summarily dismissed, is
to be answered on the face of the petition. See T.C.A. § 40-30-106(d) (“The petition must contain
a clear and specific statement of all grounds upon which relief is sought, including full disclosure
of the factual basis of those grounds.”).

        In consideration of the foregoing and the record as a whole, the judgment of the trial court
is reversed. The case is remanded to the trial court for appointment of counsel and an evidentiary
hearing. The trial court shall determine, as a preliminary matter at the hearing, whether the petitioner
has demonstrated that the facts of this case mandate that due process defeat the one year statute of
limitations. If the court determines that the petitioner’s claim is not barred by the statute of
limitations, it shall determine whether due process prevents the state from incarcerating the
defendant for his convictions.



                                                         ___________________________________
                                                         JOSEPH M. TIPTON, PRESIDING JUDGE




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