        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 3, 2014

                    GARY LILLEY v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                          No. 1104740 Lee V. Coffee, Judge




              No. W2013-02779-CCA-R3-PC - Filed September 16, 2014


The Petitioner, Gary Lilley, pleaded guilty to first degree premeditated murder, and the trial
court imposed a life sentence. The Petitioner filed a petition seeking post-conviction relief
almost two years after pleading guilty, which the post-conviction court summarily dismissed.
After a thorough review of the record, the briefs, and relevant authorities, we affirm the post-
conviction court’s judgment.

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

R OBERT W. W EDEMEYER, J., delivered the opinion of the Court, in which A LAN E. G LENN
and R OBERT L. H OLLOWAY, J R., JJ., joined.

Gary Lilley, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel; Amy
P. Weirich, District Attorney General, for the Appellee, State of Tennessee.

                                          OPINION

                                       I. Background

       In 2011, the Petitioner pleaded guilty to one count of premeditated first degree murder
with an agreed upon life sentence to be served at 100 percent. In 2012, the Petitioner filed,
pro se, a petition for post-conviction relief, claiming that he had received the ineffective
assistance of counsel on a number of grounds. The post-conviction court appointed an
attorney to the Petitioner, following which the Petitioner sent a letter to the attorney stating
that he no longer wished to proceed with the post-conviction proceedings. Citing the
Petitioner’s letter, which was filed in the post-conviction court, the court entered an order on
November 19, 2012, dismissing the petition with prejudice. In April 2013, the Petitioner filed
a motion in the post-conviction court requesting that the November 19, 2012 order be
withdrawn, stating that the Petitioner “had no intention” of not proceeding with the petition.

       The post-conviction court summarily dismissed the petition as untimely stating that
“The statute of limitations bars the [P]etitioner’s petition [for] post-conviction relief pursuant
to T.C.A. § 40-3-102 in that more than one year has passed since the date of the final court
action on the [P]etitioner’s case[.]” The post-conviction court, noting that the Petitioner’s
post-conviction attorney had requested and received in writing confirmation of the Petitioner’s
wishes not to proceed with post-conviction matters, made the following statement in its order:

               The [P]etitioner has not shown that he fits within an exception to the
       statute of limitations. In this case, the Petitioner does not assert any averments
       that the statute of limitations should not bar this post-conviction petition.

               ....

               The [P]etitioner does not offer any due process grounds that would allow
       the court to waive or disregard the statute of limitations that serves as a bar to
       this claim.

               A review of the transcript of the guilty plea hearing reflects that the trial
       court thoroughly reviewed with the [P]etitioner his rights, the offense to which
       he was pleading guilty, and the sentence he was receiving. The [P]etitioner
       repeatedly assured the trial court that he understood his pleas.

It is from this judgment that the Petitioner now appeals.

                                          II. Analysis

        The Petitioner asserts that the post-conviction court’s summary dismissal of his petition
is in “direct contravention” with our Supreme Court’s April 18, 2011, order in Kennedy v.
State holding that, in the case of a post-conviction petition that fails to “state a colorable
claim,” “trial courts should rarely, if ever, summarily dismiss the first pro se petition for post-
conviction relief until the petitioner is either afforded an opportunity to amend the petition or
is appointed counsel to assist in amending the petition.” The Petitioner further argues that due
process required tolling of the statute of limitations. The State responds that the post-
conviction court properly determined that the Petitioner’s petition was filed outside the one-
year statute of limitations and that the Petitioned has failed to establish a basis for tolling the
statute of limitations. We agree with the State.

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        A person in custody under a sentence of a court of this state must petition for post
conviction relief within one 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 year of the date on
which the judgment becomes final. T.C.A. § 40-30-102(a) (2012). The statute explicitly
states, “The statute of limitations shall not be tolled for any reason, including any tolling or
saving provision otherwise available at law or equity.” Id. It further stresses that “[t]ime is
of the essence of the right to file a petition for post-conviction relief or motion to reopen
established by this chapter, and the one-year limitations period is an element of the right to
file the action and is a condition upon its exercise.” Id. In the event that a petitioner files a
petition for post-conviction relief outside the one-year statute of limitations, the trial court is
required to summarily dismiss the petition. T.C.A. § 40-30-106(b) (2012).

       Tennessee Code Annotated section 40-30-102(b) sets out three exceptions to the statute
of limitations for petitions for post-conviction relief:

              No court shall have jurisdiction to consider a petition filed after the
       expiration of the limitations period unless:

               (1) The 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. The
       petition must be filed within one (1) year of the ruling of the highest state
       appellate court or the United States supreme court establishing a constitutional
       right that was not recognized as existing at the time of trial;

              (2) The claim in the petition is based upon new scientific evidence
       establishing that the petitioner is actually innocent of the offense or offenses
       for which the petitioner was convicted; or

              (3) The claim asserted in the petition seeks relief from a sentence that
       was enhanced because of a previous conviction and the 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, in which
       case the petition must be filed within one (1) year of the finality of the ruling
       holding the previous conviction to be invalid.

Additionally, due process concerns may toll the statute of limitations for post-conviction
relief. The Tennessee Supreme Court concluded:

                [B]efore a state may terminate a claim for failure to comply with

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        procedural requirements such as statutes of limitations, due process requires
        that potential litigants be provided an opportunity for the presentation of
        claims at a meaningful time and in a meaningful manner.

Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992) (citing Logan v. Zimmerman Brush Co.,
455 U.S. 422, 437 (1982)).

        In the case under submission, the Petitioner was required to file his petition for
post-conviction relief within one year of December 2, 2011, the date that his judgment became
final. See T.C.A. § 40-30-102(a) (2012); State v. Green, 106 S.W.3d 646, 650 (Tenn. 2003)
(holding that “a judgment of conviction entered upon a guilty plea becomes final thirty days
after acceptance of the plea agreement and imposition of sentence”). The Petitioner filed his
petition within the proscribed one-year statutory period, however, that petition was dismissed
with prejudice at his request. In April 2013, the Petitioner filed a motion requesting that the
post-conviction court withdraw its dismissal of his original petition. This filing occurred
more than one year after the Petitioner’s judgment of conviction became final, and thus, was
barred by the statute of limitations. The Petitioner does not allege, nor do we find applicable,
any of the statutory exceptions to the one-year statute of limitations.

        After reviewing the record and the Petitioner’s claims, we conclude that the Petitioner
has been “provided an opportunity for the presentation of claims at a meaningful time and in
a meaningful manner,” Burford, 845 S.W.2d at 208. We conclude that the authority in
Kennedy, requiring that post-conviction courts allow the amendment of a petition that fails
to state a claim with the assistance of counsel as opposed to dismissing the petition, is
inapplicable here. In this case, the Petitioner was afforded counsel and the opportunity to file
his post-conviction petition within the statutory period. He failed to do so, and has failed to
provide support for his argument that due process requires tolling of the statute of limitations.
Accordingly, we conclude that the post-conviction court properly dismissed the Petitioner’s
petition.

                                       III. Conclusion

      After a thorough review of the record and relevant authorities, we affirm the post-
conviction court’s judgment.

                                                      ________________________________
                                                       ROBERT W. WEDEMEYER, JUDGE




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