                                                                                        06/07/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                  May 2, 2017 Session

                JACKSON MARTIN v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                   No. 10-07889      James M. Lammey, Judge
                     ___________________________________

                           No. W2016-01388-CCA-R3-PC
                       ___________________________________


The petitioner, Jackson Martin, was convicted by a Shelby County jury of one count of
attempted second-degree murder and two counts of carjacking. Over one year after this
Court affirmed his convictions, the petitioner filed a petition for post-conviction relief.
The trial court subsequently denied the petition on its merits. Following our review of
the record and pertinent authorities, we conclude the petition was untimely, and so this
Court is without jurisdiction to consider this appeal. Accordingly, we dismiss this appeal
and remand the matter to the trial court for proceedings consistent with this opinion.

              Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

J. ROSS DYER, J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT L. HOLLOWAY, JR., JJ., joined.

James Jones, Bartlett, Tennessee, for the appellant, Jackson Martin.

Herbert H. Slatery III, Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Tyler Parks, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                                   Procedural History

       A Shelby County jury convicted the petitioner of attempted second degree murder
and two counts of carjacking, for which he received an effective sentence of twenty-two
years in confinement. State v. Jackson Martin, No. W2012-00144-CCA-R3-CD, 2013
WL 427897, at *1-5 (Tenn. Crim. App. Feb. 1, 2013). On February 1, 2013, his
conviction was affirmed by this Court on direct appeal, and the petitioner did not seek
permission to appeal to the Tennessee Supreme Court. Id. The petitioner filed his pro se
petition for post-conviction relief on March 5, 2014, over one year after the final decision
by the highest appellate court from which the petitioner sought relief, arguing in part, trial
counsel failed to respond to the State’s request for notice of the petitioner’s intent to
present an alibi defense and failed to speak with and call several witnesses to testify at
trial. The trial court appointed counsel, who filed an amended petition for post-
conviction relief, and held an evidentiary hearing on the petition. The State did not raise
the timeliness of the petition, and the trial court treated the petition as timely. The trial
court ultimately denied the petition, and this appeal followed.

                                           Analysis

        On appeal, the petitioner again alleges trial counsel provided ineffective assistance
because he failed to file a notice of alibi and failed to call eyewitnesses. The State
contends the petitioner filed an untimely petition for post-conviction relief, so his appeal
should be dismissed. Alternatively, the State argues the petitioner received effective
assistance of counsel. Following our consideration of the record, pertinent law and
authorities, and arguments of the parties, we conclude the petition for post-conviction
relief was untimely, so the trial court did not have jurisdiction to consider the petition and
neither do we. Accordingly, we dismiss the petitioner’s appeal and remand the matter to
the trial court for proceedings consistent with this opinion.

        A post-conviction petitioner has one year from “the date of the final action of the
highest state appellate court” in which to file a petition for relief. Tenn. Code Ann. § 40-
30-102(a). “Time is of the essence of the right to file a petition for post-conviction
relief.” Id. Untimely filing of a post-conviction petition extinguishes a petitioner’s post-
conviction claims. Id. Tennessee Code Annotated section 40-30-102 subpart (b) states
that “[n]o court shall have jurisdiction to consider a petition filed after the expiration of
the limitations period” and then sets out the following three exceptions to this rule:

       (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

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       (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 to
       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.

Tenn. Code Ann. § 40-30-102(b). In addition, the Tennessee Supreme Court has held the
statute of limitations for filing a post-conviction petition should be tolled in limited
circumstances when “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) (citing Burford
v. State, 845 S.W.2d 204 (Tenn. 1992)).

        Here, the State raises its statute of limitations argument for the first time on
appeal. This Court has previously concluded that “[g]iven the post-conviction statute’s
language conferring jurisdictional import to the timely filing of a petition, it is essential
that the question of timeliness be resolved before any adjudication on the merits of the
petitioner’s claims may properly occur.” Antonio L. Saulsberry v. State, No. W2002-
02538-CCA-R3-PC, 2004 WL 239767, at *1 (Tenn. Crim. App. Feb. 9, 2004).
Accordingly, if we conclude the trial court did not have jurisdiction to consider a petition
for post-conviction relief because it was untimely and due process did not require the
tolling of the statute of limitations, we must dismiss the appeal even if the State failed to
raise the statute of limitations at the trial level, and the trial court treated the petition as
timely. Stephen Willard Greene v. State, No. E2005-02769-CCA-R3-PC, 2007 WL
1215022, at * 5 (Tenn. Crim. App. April 25, 2007).

        This case does not fall within the three exceptions set forth in Tennessee Code
Annotated section 40-30-102(b) that allow for the filing of a petition for post-conviction
relief outside the one-year statute of limitations, and our review of the record does not
show the petitioner was “denied the reasonable opportunity to assert a claim in a
meaningful time and manner.” Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000). Instead,
the petitioner appeared to misunderstand when the statute of limitations began to run. In
his pro se petition for post-conviction relief, the petitioner offered this erroneous
explanation for why the one-year statute of limitations does not bar his claims:

       Given the date of the Criminal Court of Appeals decision made on
       petitioner’s direct appeal of February 1, 2013 plus the 60 day allowance for
       filing under Rule 11, the Petitioner’s judg[]ment was final on April 1, 2013.
       This petition is timely filed. Petitioner as until April 1, 2014 to file this
       petition.
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        The petitioner misstates the law. It is well-established that a petitioner’s ignorance
of post-conviction procedures does not toll the one-year limitations period. See Joshua
Jacobs v. State, No. M2009-02265-CCA-R3-PC, 2010 WL 3582493, at *3 (Tenn. Crim.
App. Sept. 15, 2010) (concluding ignorance of the statute of limitations due to youthful
age and mental disabilities did not bar the application of the one-year statute of
limitations). The petitioner had one-year from “the date of the final action of the highest
state appellate court to which an appeal is taken” to file his petition for post-conviction
relief. Tenn. Code Ann. § 40-30-102(a). This Court issued its opinion on the petitioner’s
direct appeal on February 1, 2013, and the petitioner did not seek permission to appeal to
the Tennessee Supreme Court. The petitioner had until February 1, 2014 to file his
petition for post-conviction relief, yet he waited until March 5, 2014 to seek relief. The
petition was untimely. Because the one-year statute of limitations for pursuing post-
conviction relief is jurisdictional, the State did not waive the issue by waiving it for the
first time on appeal. Accordingly, we conclude that the petition for post-conviction relief
should be dismissed as time-barred, and we have no jurisdiction to review the merits of
the petitioner’s claims. See Jonathan Adams v. State, No. E2012-00297-CCA-R3-PC,
2013 WL 1187654, at *3 (Tenn. Crim. App. Mar. 21, 2013), perm. app. denied, (Tenn.
Aug. 14. 2013).

                                        Conclusion

       Based on the foregoing authorities and reasoning, we conclude that the petition is
barred by the one-year statute of limitations for filing a petition for post-conviction relief
and dismiss the appeal.



                                              ____________________________________
                                              J. ROSS DYER, JUDGE




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