                                                                                         05/02/2019
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                       Assigned on Briefs November 28, 2018

         ADAM NICHOLAS WALLACE v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Scott County
                       No. 11178 E. Shayne Sexton, Judge
                     ___________________________________

                            No. E2017-02481-CCA-R3-PC
                       ___________________________________


Petitioner, Adam Nicholas Wallace, appeals the Scott County Criminal Court’s dismissal
of his petition for post-conviction relief from his 2016 conviction for aggravated sexual
battery, for which Defendant was sentenced to imprisonment for ten years. The post-
conviction court dismissed Petitioner’s post-conviction petition as time-barred because it
was filed outside the one-year limitations period. On appeal, Petitioner contends that due
process requires tolling of the statute of limitations. We disagree. Having reviewed the
record and the briefs of the parties, we affirm the post-conviction court’s dismissal of
Petitioner’s petition.

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

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and ROBERT W. WEDEMEYER, JJ., joined.

Darlene M. Walker, Knoxville, Tennessee, for the appellant, Adam Nicholas Wallace.

Herbert H. Slatery III, Attorney General and Reporter; Garrett D. Ward, Assistant
Attorney General; Jared Ralph Effler, District Attorney General; and David Pollard,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

Evidence Presented at Hearing

        Petitioner was convicted by a jury of one count of aggravated sexual battery. The
trial court sentenced Defendant to serve ten years in the Tennessee Department of
Correction. The judgment of conviction was entered on March 14, 2016. Petitioner did
not file a motion for new trial or direct appeal of his conviction or sentence. On July 31,
2017, more than one year after Petitioner’s judgment became final, Petitioner filed a pro
se petition for post-conviction relief, alleging that he received the ineffective assistance
of counsel at trial. We note that Petitioner filed a second pro se petition for post-
conviction relief on September 11, 2017; however, the second petition makes no
allegations that are new or different from the first petition.

        In both of his pro se petitions, Petitioner alleged that he made several attempts to
contact his trial counsel, and trial counsel did not respond. He alleged that trial counsel
failed to file a motion for new trial or a direct appeal of Petitioner’s conviction and
sentence. Petitioner also generally alleged that trial counsel “failed to adequately
investigate the circumstances of [Petitioner’s] case and prepare all the defenses
[Petitioner] was legally entitled to present.” However, Petitioner did not make any
specific allegations regarding trial counsel’s failure to investigate or prepare for trial.

        The State filed a motion to dismiss Petitioner’s petition, arguing that the petition
was time-barred by the one-year statute of limitations. Appellant was appointed counsel.
At a hearing on the State’s motion to dismiss, Appellant’s counsel conceded that
Petitioner’s petition was filed more than one year after the judgment became final and
that “it doesn’t appear that [Petitioner]’s petition would fall into any of those [statutory]
categories” to allow for tolling of the statute of limitations. Regarding the reason for the
delay in filing his petition, Petitioner testified:

        The reason for the delay in my filing the petition was I had to look up the
        laws myself for the most part and then when I finally did find a Court or
        a jailhouse lawyer, he helped me – he helped guide me in the right
        direction. It took me a while to do this. I’m not a – I’m not a lawyer
        myself, you know, and law school is about three years, so me doing this
        was a wonder in my opinion.

        On cross-examination, Petitioner acknowledged that he did not write letters to his
trial counsel asking trial counsel to file a motion for new trial. He testified that his family
members attempted to contact trial counsel and were unsuccessful in their attempts.

       Trial counsel testified that following Petitioner’s trial, he discussed filing a motion
for new trial with Petitioner. He discussed with Petitioner “various issues that might be
raised in such a motion for new trial,” and trial counsel “expressed [his] opinion at that
time, that it would be very difficult to prevail on a motion for new trial.” In preparing for
Petitioner’s sentencing hearing, trial counsel “asked [Petitioner] again, that we need to
prepare a motion. If that needs to be done, do you want to do that and [Petitioner] said
no.” Trial counsel testified that he had no further contact with Petitioner after
Petitioner’s sentencing and that he did not receive any letters from Petitioner.
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       The post-conviction court dismissed Petitioner’s petition as time-barred, finding
that “[P]etitioner failed to demonstrate that the statute of limitations has been tolled by
any statutorily recognized exception” and that “[P]etitioner failed to demonstrate any
basis to grant equitable or statutory relief to justify the late filing of the Petition for Post-
Conviction Relief.”

Analysis

       Petitioner contends that the post-conviction court erred by determining that his
petition for relief was untimely. He argues on appeal that due process requires the tolling
of the statute of limitations because “his [post-conviction] claim is based upon the denial
of a guaranteed constitutional right, namely, the denial of effective assistance of
counsel.” The State argues that the post-conviction court properly dismissed the post-
conviction petition as time-barred. We agree.

       Under the Post-Conviction Procedure Act, a claim for post-conviction relief must
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, or consideration of the petition shall be barred.”
T.C.A. § 40-30-102(a). The post-conviction statute contains a specific anti-tolling
provision:

        The statute of limitations shall not be tolled for any reason, including
        any tolling or saving provision otherwise available at law or equity.
        Time 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. Except as specifically provided in
        subsections (b) and (c), the right to file a petition for post-conviction
        relief or a motion to reopen under this chapter shall be extinguished upon
        the expiration of the limitations period.

Id.

       Subsection (b) of the statute sets forth the three narrow exceptions under which an
untimely petition may be considered: (1) when the claim is based on a constitutional
right not recognized as existing at the time of trial; (2) when the claim is based upon new
scientific evidence establishing that the petitioner is actually innocent of the offense; and
(3) when the claim seeks relief from a sentence that was enhanced because of a prior
conviction that was subsequently held to be invalid. Id. § 40-30-102(b). In addition to
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the statutory exceptions, our supreme court “has identified three circumstances in which
due process requires tolling the post-conviction statute of limitations”: (1) when a claim
for relief arises after the statute of limitations has expired; (2) when a petitioner is
prevented by his or her mental incompetence from complying with the statute’s deadline;
and (3) when attorney misconduct necessitates the tolling of the statute. Whitehead v.
State, 402 S.W.3d 615, 623-24 (Tenn. 2013). Whether due process requires tolling of the
statute of limitations is a mixed question of law and fact which this court reviews de
novo. Smith v. State, 357 S.W.3d 322, 355 (Tenn. 2011).

        A petitioner is entitled to due process tolling upon a showing that he or she has
been pursuing his or her rights diligently, and that some extraordinary circumstance stood
in his or her way and prevented timely filing. Id. This court has rejected a claim for due
process tolling based on allegations that a petitioner’s trial attorney did not advise him
about the right to seek post-conviction relief or the method by which to do so. See
Joseph Nelson v. State, No. W2012-02234-CCA-R3-PC, 2013 WL 6001955, at *4 (Tenn.
Crim. App. Nov. 12, 2013). Similarly, this court has said that a petitioner’s ignorance of
the existence of the statute of limitations, even if the ignorance resulted from an
attorney’s negligence in advising the petitioner, does not toll the statute of limitations.
See State v. Phillips, 904 S.W.2d 123, 124 (Tenn. Crim. App. 1995).

       None of the statutory exceptions to the limitations period apply in this case, and
there are no general due process concerns that favor equitable tolling. Petitioner’s
argument that due process requires tolling because he was denied a constitutional right to
effective assistance of counsel is unpersuasive. If this court accepted Petitioner’s
argument, then the statute of limitations would have little or no effect because in order to
obtain relief, all post-conviction petitions, timely or untimely, must allege the
abridgement of a constitutionally guaranteed right. See T.C.A. § 40-30-103. We
therefore conclude that the post-conviction court properly dismissed the petition as time-
barred.

                                     CONCLUSION

       Based on the foregoing, we affirm the judgment of the trial court.


                                   ____________________________________________
                                   THOMAS T. WOODALL, JUDGE




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