        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                                   June 26, 2012 Session

              ROBERT KEITH WARD v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Sevier County
                       No. 16287-III    Rex Henry Ogle, Judge


                 No. E2011-01835-CCA-R3-PC - Filed August 20, 2012


Following his jury conviction of aggravated rape, the petitioner filed an untimely petition for
post-conviction relief alleging that his conviction resulted from the ineffective assistance of
counsel and that due process considerations should toll the statute of limitations. The post-
conviction court ruled that the petitioner failed to establish a basis for due process tolling and
summarily dismissed the petition. Discerning no error, we affirm the order of the post-
conviction court.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which D. K ELLY
T HOMAS, J R. and C HARLES D. S USANO, J R., JJ. joined.

Sally A Goade, Knoxville, Tennessee, for the appellant, Robert Keith Ward.

Robert E. Cooper, Jr., Attorney General and Reporter; Renee W. Turner, Assistant Attorney
General; and James B. Dunn, District Attorney General, for the appellee, State of Tennessee.

                                           OPINION

                In 2004, a Sevier County Criminal Court jury convicted the petitioner of the
aggravated rape of his sister-in-law, and the trial court sentenced the defendant to 60 years’
incarceration as a Range III persistent, violent offender. On direct appeal, this court affirmed
the trial court’s judgment. State v. Robert K. Ward, No. E2004-01665-CCA-R3-CD (Tenn.
Crim. App., Knoxville, Dec. 29, 2005), perm. app. denied (Tenn. May 1, 2006). At trial, the
victim testified that the defendant orally penetrated her vagina and digitally penetrated her
vagina and anus forcibly, without her consent. Id., slip op. at 2. During the assault, the
victim suffered “substantial bruising to her left eye and cheek bone, swelling on the left side
of her face, an abrasion on her neck, a laceration on her elbow, and abrasion on her left arm,
a busted lip, and discoloration around her eyes.” Id. In a statement to investigators, the
defendant claimed that he was intoxicated at the time of the offense, and he characterized the
sexual contact as consensual. Id., slip op. at 3-4. He also, however, admitted his hurting the
victim and his apologizing to her within minutes of the incident. Id.

                On March 14, 2011, the petitioner filed a pro se petition for post-conviction
relief alleging that trial counsel performed deficiently to his prejudice in not advising the
petitioner of the elements of the charged offense in consideration of a plea offer, not
challenging the search of his residence and the admissibility of blood evidence found during
the search, and not devising an adequate defense strategy at trial. In the petition, the
petitioner acknowledged the untimeliness of the petition but averred that due process
considerations required the tolling of the statute of limitations, claiming that he suffered
mental incompetence throughout the ensuing years of his incarceration. In an attached
affidavit, the defendant specifically affirmed that he was “stabbed, raped, beaten and robbed”
in 2004 and 2005. He further alleged that he was under a “great deal of stress” from assaults
by cellmates even after being placed in protective custody. He claimed that from 2007 until
2010 he “struggl[ed] with emotional issues concerning his case and how to proceed legally.”
He also claimed that he had been diagnosed and treated for bipolar disorder, attention deficit
hyperactivity disorder (“ADHD”), attention deficit disorder (“ADD”), and obsessive
compulsive disorder (“OCD”). He did not, however, include any supporting documentation
of these allegations to his petition for relief.

               On May 18, 2011, the post-conviction court ruled that the petitioner had failed
to establish tolling of the limitations period and summarily dismissed the petition as time-
barred. Following the post-conviction court’s denial of a motion to reconsider, the petitioner
filed an untimely notice of appeal to this court.1

             As part of Tennessee’s post-conviction law, Tennessee Code Annotated section
40-30-102(a) provides:

        [A] person in custody under a sentence of a court of this state must petition for
        post-conviction relief under this part 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. The statute of limitations
        shall not be tolled for any reason, including any tolling or saving provision


        1
           Contrary to the State’s assertion in its brief, the motion to reconsider did not toll the 30-day filing
requirement of the notice of appeal in this case. Nevertheless, at oral argument, the petitioner requested and
the State consented to this court’s waiving the filing of a timely notice of appeal. See Tenn. R. App. P. 4.

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       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.

T.C.A. § 40-30-102(a) (2006). The provisions of subsections (b) and (c) do not avail the
petitioner any relief from the one-year statute of limitations. The petitioner filed the instant
post-conviction petition in 2011 to challenge a conviction that became final on May 1, 2006.
The plain language of Code section 40-30-102(a), therefore, bars the claim.

               We recognize that our courts have long applied principles of due process of law
to allow certain petitioners to overcome a statute of limitations bar. See, e.g., Burford v.
State, 845 S.W.2d 204, 208 (Tenn. 1992) (“[B]efore a state may terminate a claim for failure
to comply with 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.”). However, when, as is the case here, mental
or psychological incompetence is claimed as the basis for a due process tolling of a post-
conviction statute of limitations, “due process requires tolling of the post-conviction statute
of limitations only if a petitioner shows that he is unable either to manage his personal affairs
or to understand his legal rights and liabilities.” State v. Nix, 40 S.W.3d 459, 463 (Tenn.
2001). Moreover, due process principles do not require tolling of the statute of limitations
“upon the mere assertion of a psychological problem.” Id. “Unsupported, conclusory, or
general allegations of mental illness will not be sufficient to require tolling and prevent
summary dismissal.” Id . at 464.

               In the instant case, the petitioner alleged that in the intervening years between
his conviction becoming final and his filing the petition, he suffered abuse and emotional
stress while incarcerated. He claimed to suffer from bipolar disorder, ADHD, ADD, and
OCD requiring medication. Such “mere assertion[s] of psychological problem[s],” however,
are not sufficient to toll the limitations period. In any event, the petitioner also asserted that
from 2007 until 2010, he “struggl[ed] with emotional issues concerning his case and how to
proceed legally” – clearly evincing an awareness and understanding of his legal rights during
that time period. Therefore, we conclude that the petitioner failed to establish a basis for
tolling the statute of limitations, and the petition is time-barred.

               Accordingly, the order of the post-conviction court is affirmed.



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      _________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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