        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                             Assigned on Briefs July 21, 2010

                  TIMMY REAGAN v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Overton County
                          No. 4594 David A. Patterson, Judge



                    No. M2009-02291-CCA-R3-PC - Filed May 23, 2011


Petitioner, Timmy Reagan, was convicted of first degree murder and sentenced to life in
prison. After an unsuccessful direct appeal, Petitioner filed a petition for post-conviction
relief. See State v. Timmy Reagan, No. M2002-01472-CCA-R3-CD, 2004 WL 1114588
(Tenn. Crim. App, at Nashville, May 19, 2004). The post-conviction court denied relief.
Petitioner appealed. See Timmy Reagan v. State, No. M2007-01396-CCA-R3-PC, 2009 WL
230355 (Tenn. Crim. App., at Nashville, Feb. 2, 2009). On appeal, this Court questioned the
timeliness of the petition for post-conviction relief and remanded the case to the post-
conviction court “for a determination of whether the petition was filed within one year of this
court’s opinion affirming the petitioner’s conviction or whether due process requires the
tolling of the one-year statute of limitations in this case.” Id. at *1. On remand, the post-
conviction court first determined that Petitioner’s post-conviction petition was untimely.
Then, the post-conviction court held that trial counsel failed to withdraw pursuant to Rule
14 of the Rules of the Tennessee Supreme Court and that his failure to withdraw or pursue
an appeal was a misrepresentation to Petitioner of his intent to seek permission to appeal.
Id. Based on this finding, the post-conviction court determined that trial counsel’s actions
denied Petitioner the opportunity to seek post-conviction relief in a timely manner. The post-
conviction court held that the statute of limitations for filing Petitioner’s petition should have
been tolled. Then the post-conviction court reviewed the post-conviction petition and the
transcript from the previous post-conviction hearing as well as the trial record, and agreed
with the prior determination of the post-conviction court that Petitioner was not entitled to
post-conviction relief. On appeal from the denial of post-conviction relief, we determine:
that the post-conviction court properly determined that Petitioner’s petition was untimely but
improperly determined that due process required the tolling of the statute of limitations for
Petitioner’s post-conviction petition. Therefore, the post-conviction court improperly
addressed the merits of the petition for post-conviction relief. Accordingly, the judgment of
the post-conviction court is reversed, and the petition for post-conviction relief is dismissed.
 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Reversed
                                  and Dismissed.

J ERRY L. S MITH, J., delivered the opinion of the court, in which A LAN E. G LENN and R OBERT
W. W EDEMEYER, JJ., joined.

John Milton Meadows, III, Livingston, Tennessee, for the appellant, Timmy Reagan.

Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney
General; Bill Gibson, District Attorney General, and Owen Burnett, Assistant District
Attorney General, for the appellee, State of Tennessee.




                                          OPINION

                                     Factual Background

        The case herein presents an interesting factual background, beginning with
Petitioner’s conviction for murdering his wife by causing her car to explode with dynamite.
Timmy Reagan, 2004 WL 114588, at *1. Petitioner filed a direct appeal in which he argued
that: (1) the evidence was insufficient; (2) the trial court erred in denying a motion to
suppress; (3) the trial court erred by denying a motion for change of venue; (4) the trial court
erred by denying a motion for a jury selection expert; (5) the trial court erred by refusing to
use a jury questionnaire; (6) the trial court improperly admitted statements of the victim as
dying declarations; (7) the trial court allowed improper testimony from the medical examiner
and a Tennessee Bureau of Investigation agent; (8) the trial court erred in admitting a
weather report into evidence; (9) Tennessee Code Annotated section 39-13-202(a)(3) is
unconstitutional; (10) the judgments of Petitioner’s convictions for premeditated murder and
murder by explosive device should have been merged; and (11) the cumulative errors
necessitated a reversal of the convictions. Id. This Court affirmed Petitioner’s conviction
for first degree murder, noting that the trial court incorrectly entered two judgments of
conviction “instead of one that notes the merger of the counts.” Id. The case was remanded
for entry of corrected judgments.

       The opinion affirming the judgment of the trial court was issued by this Court on May
19, 2004. Petitioner filed an application for permission to appeal pursuant to Rule 11 of the
Tennessee Rules of Appellate Procedure on July 28, 2004. The supreme court dismissed the
application on August 30, 2004, finding that the judgment of this Court was filed on May 19,



                                              -2-
2004, and that the time for filing an application for permission to appeal had expired on July
18, 2004. Id.

       Then, in July of 2005, Petitioner filed a pro se petition for post-conviction relief. Id.
Counsel was appointed and an amended petition was filed. Id. Petitioner also filed a petition
for writ of error coram nobis, based on his discovery that the medical examiner used by the
State during his trial had since been indicted for perjury, falsifying evidence, and
unprofessional conduct. Id. The petition for post-conviction relief alleged that ineffective
assistance of counsel, prosecutorial misconduct, and cumulative errors entitled him to post-
conviction relief. The post-conviction court held a hearing on the petition and denied post-
conviction relief. Id.

       On appeal to this Court, we determined that there were “concerns regarding the
timeliness of the petition for post-conviction relief” and remanded the case to the post-
conviction court to resolve “whether the petition was filed within one year of this [C]ourt’s
opinion affirming the petitioner’s conviction or whether due process requires the tolling of
the one-year statute of limitations in this case.” Id.

       On appeal from the denial of post-conviction relief, this Court reasoned:

              Although the original petition for post-conviction relief is not a part of
       the appellate record, the amended petition indicates an original file date of July
       21, 2005, and the order denying post-conviction relief indicates an original file
       date of July 18, 2005. . . .

                Although neither the parties nor the post-conviction court has
       questioned the timeliness of the post-conviction petition, we are mindful that
       the statute of limitations for filing a post-conviction petition is jurisdictional.
       See T.C.A. § 40-30-102(b) (2003) (“No court shall have jurisdiction to
       consider a petition filed after the expiration of the limitations period unless
       [certain statutory prerequisites are met].”). Our supreme court has held that
       “the one-year statutory period is an element of the right to file a
       post-conviction petition and that it is not an affirmative defense that must be
       asserted by the State.” State v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001) Thus,
       “it is incumbent upon a petitioner to include allegations of fact in the petition
       establishing either timely filing or tolling of the statutory period,” and the
       “[f]ailure to include sufficient factual allegations of either compliance with the
       statute or [circumstances] requiring tolling will result in dismissal.” Id.




                                               -3-
              In this case, the petitioner included in his amended petition allegations
      of fact that ostensibly established the timeliness of the petition. Namely, he
      stated that his application for permission to appeal to our supreme court was
      “denied sometime in the month of August 2004.” As we have already
      indicated, however, this is an incorrect statement of fact upon which the State
      and the post-conviction court apparently relied. The post-conviction statute of
      limitations did not begin to run from the August 30, 2004 dismissal of the
      petitioner’s untimely application for permission to appeal because “‘filing an
      untimely application for permission to appeal to [the supreme court] does not
      constitute ‘an appeal’ as that term is used in Tennessee Code Annotated §
      40-30-[1]02(a) and therefore does not delay commencement of the one-year
      post-conviction statute of limitations.’” Williams v. State, 44 S.W.3d 464, 471
      (Tenn. 2001) (quoting id., Holder, J., dissenting). Instead, the time for filing
      a post-conviction petition in this case began on May 19, 2004, when this court
      affirmed the petitioner’s conviction. See id. Thus, the petition for
      post-conviction relief filed in this case on either July 18 or July 21, 2005, was
      time-barred.

             That being said, however, “strict application of the statute of limitations
      may not deny a petitioner ‘a reasonable opportunity to assert a claim in a
      meaningful time and manner.’” Id. at 468 (quoting Seals v. State, 23 S.W.3d
      272, 279 (Tenn. 2000)). When “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,” due process concerns are implicated. Id.

Timmy Reagan, 2009 WL 230355, at *1-2.

      Citing Williams, this Court remanded the matter to the post-conviction court for a
determination of:

      [W]hether the petition for post-conviction relief was filed within one year of
      this court’s May 19, 2004 opinion affirming his conviction. If the petition was
      not timely filed, then the post-conviction court shall determine whether
      counsel misrepresented to the petitioner his intention to pursue an application
      for permission to appeal to our supreme court and, if so, whether counsel’s
      misrepresentation denied the petitioner the opportunity to timely seek
      post-conviction relief.

Timmy Reagan, 2009 WL 230355, at *3.

                                             -4-
        On remand, the post-conviction court held a hearing at which it determined that the
original petition for post-conviction relief, filed either on July 18 or 21, 2005, was untimely.
At the hearing, both the State and Petitioner stipulated that trial counsel never filed a motion
to withdraw pursuant to Rule 14 of the Rules of the Tennessee Supreme Court. The post-
conviction court acknowledged that the application for permission to appeal was untimely
and that counsel for Petitioner failed to file a motion to withdraw pursuant to Rule 14 of the
Rules of the Supreme Court. The post-conviction court commented that “the failure to act
by counsel is found to be a misrepresentation to the petitioner of an intention to pursue an
application for permission to appeal to the Supreme Court.” As such, the post-conviction
court held that Petitioner was denied the right to seek timely post-conviction relief and the
statute of limitations was tolled. Accordingly, the post-conviction court went on to review
the merits of the petition for post-conviction relief, including the transcript of the hearing on
the petition, the trial transcript, and the exhibits. The post-conviction court determined after
a review that Petitioner was not entitled to post-conviction relief.

         Petitioner now appeals the denial of post-conviction relief.1

                                      Proof at the Hearing on Remand

       On September 24, 2009, the post-conviction court held a hearing after remand from
this Court. Petitioner was the only witness at this hearing. Petitioner testified that he was
represented on direct appeal by trial counsel. At some point after the Court of Criminal
Appeals affirmed his conviction, estimated by Petitioner as “a couple or three months,”
Petitioner contacted the office of trial counsel to get the transcripts of his trial. He spoke
with a lady named “Teresa,” an employee of trial counsel. She informed Petitioner that he
was “on [his] own, that [he] had to take care of things from there on in.” Petitioner sought
the advice of “jailhouse lawyers” and “filed to the Supreme Court on [his] own for
permission or something like that during that time.” Petitioner testified that no one informed
him on the filing deadline for filing his application for permission to appeal. Further, he
never received notice from trial counsel that he was no longer the attorney of record.

        Petitioner introduced a letter that he wrote to the Circuit Court Clerk to accompany
his petition for post-conviction relief. In the letter, Petitioner stated that he placed it in the
hands of correctional authorities on July 16, 2005, in order to comply with Rule 28 of the
Tennessee Rules of the Supreme Court. Additionally, Petitioner acknowledged the statute



         1
           The resolution of this case was somewhat hampered by the flood on May 1-2, 2010, in Nashville, Tennessee,
as the transcripts from Petitioner’s original trial were housed at a building that received extensive damage in the flood.
The technical records from those cases were damaged, creating a significant delay in the release of this opinion.

                                                           -5-
of limitations for filing his petition. Petitioner testified at the hearing that he was under the
impression that his petition for post-conviction relief was timely filed.

        During the hearing, the State and Petitioner stipulated that trial counsel failed to
comply with Rule 14 of the Rules of the Tennessee Supreme Court. Petitioner also requested
that the post-conviction court take judicial notice of the record from the original hearing on
the post-conviction petition. The post-conviction court granted this request.

        As stated above, the post-conviction court determined on remand that the original
petition for post-conviction relief was untimely and that trial counsel’s failure to file a motion
to withdraw or application for permission to appeal was a “misrepresentation to [Petitioner]
of an intention to pursue an application for permission to appeal to the Supreme Court” that
denied Petitioner the right to seek timely post-conviction relief. Thus, the court determined
that a tolling of the statute of limitations was in order. The post-conviction court went on to
review the merits of the petition, and determined that Petitioner was not entitled to post-
conviction relief.

                                            Analysis

       On appeal, the State initially asserts that the post-conviction court erred in determining
that due process requires the tolling of the statue of limitations. The State agrees that trial
counsel failed to properly withdraw under Rule 14 of the Tennessee Rules of the Supreme
Court but argues that Petitioner became aware that trial counsel no longer represented him
and had both “knowledge of the one-year statute of limitations, [and] had a reasonable
opportunity to file a timely petition for post-conviction relief.” Thus, the petition was
untimely and due process did not require tolling of the statute of limitations. We agree.

        Under the Post-Conviction Procedure Act, a petition for post-conviction relief must
be filed 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 became final. T.C.A. § 40-30-102(a). Unless one of the enumerated exceptions
applies, a court does not have jurisdiction to consider an untimely petition. See T.C.A. §
40-30-102(b). Tennessee Code Annotated section 40-30-102(b) states:


       (b) 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

                                               -6-
         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.


        In the present case, the post-conviction court properly determined that the petition was
filed more than one year after the date of the final action by the highest court to which an
appeal was taken and thus well outside the statute of limitations. This Court’s opinion on
direct appeal was entered on May 19, 2004, and the petition for post-conviction relief was,
according to Petitioner, delivered to prison authorities on July 16, 2005, and stamped filed
on July 21, 2005.2 The post-conviction court also properly held that Petitioner failed to show
that one of the exceptions to the one-year deadline listed in the statute was applicable.

        However, in addition to the exceptions set out in the statute, the courts in this State
have found that due process concerns can toll the statute of limitations in certain factual
situations. See Williams v. State, 44 S.W.3d 464 (Tenn. 2001); Sands v. State, 903 S.W.2d
297 (Tenn. 1995); Burford v. State, 845 S.W.2d 204 (Tenn. 1992).

      This Court suggested the post-conviction court look to Williams v. State, 44 S.W.3d
464 (Tenn. 2001), to determine whether due process considerations required the tolling of


         2
           Pro se petitions by inmates, although not received by the clerk’s office until after the time fixed for filing,
nonetheless, “shall be deemed timely if the papers were delivered to the appropriate individual at the correctional facility
within the time fixed for filing.” Tenn. Sup. Ct. R. 28, § 2(G); Tenn. R. Crim. P. 49(c). In effect, “the jailer is . . . the
clerk of the [court].” Paul v. State, 75 S.W.3d 926, 929 (Tenn. Crim. App. 2001) (citing Houston v. Lack, 487 U.S. 266,
270 (1988)). Consequently, whether we utilize July 16, 2005, or July 21, 2005, the petition at issue herein was untimely.




                                                            -7-
the statute of limitations. Williams is the most recent in a line of cases including Burford v.
State, 845 S.W.2d 204 (Tenn. 1992) and Sands v. State, 903 S.W.2d 297 (Tenn. 1995),
analyzing when due process limitations toll the statute of limitations. In all three of these
cases, our supreme court decided that the statute of limitations for post-conviction relief
could be tolled in the factual situations presented. In Burford, the petitioner’s sentence was
enhanced by previous convictions that had subsequently been declared invalid, but not
invalidated in time for him to meet the statute of limitations for filing his post-conviction
petition. Burford, 845 S.W.2d at 208. Our supreme court stated that because the petitioner
was in a procedural trap, the petitioner’s due process rights would be violated by not
allowing a tolling of the statute of limitations and the filing of a post-conviction petition.
Burford, 845 S.W.2d at 208-09.

      In Sands, our supreme court analyzed Burford and set out the basic rule derived from
Burford and how to go about applying this rule in future cases. The supreme court stated:


       [I]t will be helpful to summarize the basic rule to be derived from Burford:
       that, in certain circumstances, due process prohibits the strict application of the
       post-conviction statute of limitations to bar a petitioner’s claim when the
       grounds for relief, whether legal or factual, arise after the “final action of the
       highest state appellate court to which an appeal is taken”-or, in other words,
       when the grounds arise after the point at which the limitations period would
       normally have begun to run. In applying the Burford rule to specific factual
       situations, courts should utilize a three-step process: (1) determine when the
       limitations period would normally have begun to run; (2) determine whether
       grounds for relief actually arose after the limitations period would normally
       have commenced; and (3) if the grounds are “later-arising,” determine if, under
       the facts of the case, a strict application of the limitations period would
       effectively deny the petitioner a reasonable opportunity to present the claim.
       In making this final determination, courts should carefully weigh the
       petitioner’s liberty interest in “collaterally attacking constitutional violations
       occurring during the convictions process,” Burford, 845 S.W.2d at 207,
       against the State’s interest in preventing the litigation of “stale and fraudulent
       claims.” Id. at 208.

Sands, 903 S.W.2d at 301 (footnote omitted). However, after going through this analysis,
the supreme court concluded that the statute of limitations had not been tolled in the Sands
situation.




                                               -8-
        In Williams v. State, 44 S.W.3d 464 (Tenn. 2001), the supreme court again held that
the statute of limitations was tolled by the factual and legal situation of the petitioner. In
Williams, there was some dispute over whether the petitioner’s trial counsel continued to
represent him and how much the petitioner actually knew about the progress of his appeals.
The supreme court stated that the question was whether the petitioner had been “misled to
believe that [his trial] counsel was continuing the appeals process . . . .” Id. at 471. The
supreme court remanded the case to the trial court for it to determine whether the statute must
be tolled due to possible attorney misrepresentation. Id. In other words, Williams “appears
to limit claims of attorney misrepresentation tolling the statute of limitations to times when
counsel has made misrepresentations directly related to filing a defendant’s appeal.”
Crawford v. State, 151 S.W.3d 179, 184 (Tenn. Crim. App. 2004).

        In the case herein, we agree that trial counsel certainly made serious missteps in his
representation of Petitioner, namely, that he failed to file a motion to withdraw. However,
we determine that due process does not require the tolling of the statute of limitations despite
trial counsel’s missteps. By Petitioner’s own admission, he learned that he was “on his own”
in the case “a couple or three months” after this Court affirmed his convictions on direct
appeal. Certainly, Petitioner was at least aware of this fact by July 28, 2004, the date on
which he filed an untimely pro se application for permission to appeal. Petitioner then would
have had ample time, nearly ten months, to file a petition for post-conviction relief by May
19, 2005, one year from the date that this Court issued its opinion on direct appeal. Petitioner
makes no assertions that trial counsel made any active misrepresentations whatsoever,
especially after Petitioner called trial counsel and discovered that he was on his own that
would have led Petitioner to believe trial counsel was pursuing his appeal. Thus, Petitioner
had the knowledge that his time for filing the petition was running. This Court has held that
a petitioner’s personal ignorance of post-conviction procedures, “even when alleged to stem
from an attorney’s negligent failure to render advice to the petitioner, does not toll the
running of the statute” of limitations. State v. Phillips, 904 S.W.2d 123, 124 (Tenn. Crim.
App. 1995). Further, we have previously determined that mere lack of knowledge that a
claim exists does not toll the statute of limitations. See, e.g., Joshua Jacobs v. State, No.
M2009-02265-CCA-R3-PC, 2010 WL 3582493 (Tenn. Crim. App., at Nashville, Sept. 15,
2010) perm. app. denied, (Tenn. Jan. 20, 2011) (determining that petitioner’s lack of
knowledge due to attorney abandonment of the case and ignorance of legal requirements did
not require tolling of the statute of limitations). Consequently, the post-conviction court
improperly determined that the statute of limitations should be tolled based on Williams.
Accordingly, we reverse the judgment of the post-conviction court and dismiss the petition
for post-conviction relief.




                                              -9-
                                         Conclusion

        Based upon our review of the record, we conclude that the petition for post-conviction
relief was untimely. Further, we determine that the post-conviction court improperly tolled
the statute of limitations based on misrepresentations of trial counsel. Therefore, the
judgment of the post-conviction court is reversed and the petition for post-conviction relief
is dismissed.




                                           ___________________________________
                                           JERRY L. SMITH, JUDGE




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