        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                                 October 7, 2014 Session

                    DON SANDERS v. STATE OF TENNESSEE

              Direct Appeal from the Criminal Court for Shelby County
                     No. 03-08239    James Lammey, Jr., Judge


               No. W2013-02781-CCA-R3-PC - Filed February 26, 2015


The Petitioner, Don Sanders, appeals the Shelby County Criminal Court’s dismissal of his
petition for post-conviction relief seeking relief from his conviction of first degree
premeditated murder and resulting life sentence. On appeal, the Petitioner contends that the
post-conviction court erred by ruling that his petition was untimely and by refusing to toll the
one-year statute of limitations for his mental incompetence. Based upon the oral arguments,
the record, and the parties’ briefs, we affirm the post-conviction court’s dismissal of the
petition.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the Court, in which C AMILLE R.
M CM ULLEN and T IMOTHY L. E ASTER, JJ., joined.

Lance R. Chism, Memphis, Tennessee, for the appellant, Don Sanders.

Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Glen Baity, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                                  I. Factual Background

       This case relates to the Petitioner’s first degree premeditated murder conviction for
stabbing and burning his girlfriend, Marilyn Hughes, in March 2003. The Petitioner
appealed his conviction to this court, arguing that the evidence failed to show that he
possessed the mental capacity to premeditate the killing, and this court affirmed his
conviction on April 22, 2008. See State v. Don Sanders, No. W2006-02592-CCA-R3-CD,
2008 Tenn. Crim. App. LEXIS 311, at *1 (Jackson, Apr. 22, 2008). The Petitioner did not
file an application for permission to appeal to our supreme court.

        On January 24, 2011, the Petitioner filed a petition for post-conviction relief, alleging
that he received the ineffective assistance of counsel at trial and that he suffered from severe
mental illness. In the petition, the Petitioner claimed that he mailed a timely petition for post-
conviction relief on or about January 6, 2009, and that he did not learn until September 2010
that the petition was never filed. In support of his claim, he attached a copy of the January
2009 petition. In the alternative, the Petitioner alleged that the post-conviction court should
toll the statute of limitations for filing the petition because he had been declared incompetent
in Davidson County’s Seventh Circuit Court, Probate Division. The Petitioner attached a
copy of a June 2008 order from that court, finding that he was disabled within the meaning
of Tennessee Code Annotated section 34-1-101 and appointing a conservator to give consent
for his medical treatment. The State responded that the post-conviction court should dismiss
the January 2011 petition as untimely.

        The post-conviction court appointed counsel and held evidentiary hearings on the
timeliness of the petition in 2012 and 2013. At the first hearing in May 2012, Anthony Clark
testified that he had been housed at the Lois Deberry Special Needs Facility in Nashville
since 2005 and was one of two inmate legal clerks. He said the clerks were responsible for
processing inmates’ requests for legal addresses, case citations, or help with power-of-
attorney documents. For post-conviction cases, the clerks provided inmates with “post-
convictions or 1983 forms for civil lawsuits.” Clerks kept a journal in which they recorded
the help they provided to inmates. Clark said he provided help to the Petitioner and “logged
all interactions.”

       Clark testified that his first interaction with the Petitioner occurred on March 7, 2007,
when the Petitioner asked for information about the Tennessee Department of Correction
policy regarding inmate rules. Two days later, the Petitioner requested to meet with Clark
about filing a civil lawsuit. On April 21, 2007, Clark met with the Petitioner and gave him
a grievance form. On June 5, 2008, Clark met with the Petitioner for a second time. The
meeting lasted ten to fifteen minutes and occurred in the maximum security unit where the
Petitioner was housed. Clark asked the Petitioner some questions, advised him that he had
only one or two weeks to file his petition for post-conviction relief from his first degree
murder conviction, and gave him a post-conviction packet. Clark said the Petitioner never
showed him this court’s opinion affirming the Petitioner’s conviction. Therefore, Clark was
unaware that this court had filed its opinion on April 22, 2008. Clark acknowledged that the
Petitioner had another nine months to file the petition for post-conviction relief and said that
he did not know why he told the Petitioner that the Petitioner had only one or two weeks.
Clark said that during the meeting, the Petitioner “seemed like he was on medication.”

                                               -2-
       Clark testified that the post-conviction packet included instructions on how to file the
petition for post-conviction relief. He acknowledged that the instructions did not include an
address for where to mail the petition. Instead, the instructions stated that the petition “must
be mailed to the appropriate clerk of court.” Clark said that legal clerks assumed inmates
knew they had to mail the petitions “back to the court they came from” and that he would not
have told the Petitioner to mail the petition to the Tennessee Supreme Court. He stated, “I
always tell them, you will get a receipt from the court once you file it. But to get anything
back as far as a hearing date, it could be a year or more.”

       Clark testified that on June 10, 2008, he responded to a request by the Petitioner for
case law and that he sent the cases to the Petitioner through prison mail. On December 23,
2008, the Petitioner sent Clark “a partially filled out post-conviction packet.” The Petitioner
did not include a request with the packet, so Clark “wrote a reply back and told him that we
didn’t know what he needed.” On January 8, 2009, Clark sent the Petitioner “a USC form,
1983, which is a lawsuit form.” Clark said that on January 23, 2009, he received a request
from the Petitioner “for the address to the Supreme Court” and that he sent the address for
the Tennessee Supreme Court to the Petitioner. Clark’s last interaction with the Petitioner
occurred on October 22, 2010, when the Petitioner requested another post-conviction packet.
Clark sent the packet to him.

        On cross-examination, Clark testified that legal clerks were not allowed to mail
documents for inmates and that inmates had to mail their own legal papers. On redirect
examination, Clark acknowledged that the Petitioner must have told him something on June
5, 2008, that caused him to think the Petitioner had only two weeks in which to file the
petition for post-conviction relief. He said he did not know how inmates “on a max unit”
mailed documents from the prison. Upon being questioned by the post-conviction court,
Clark testified that the Petitioner “seemed a little confused” during their June 5 meeting but
that “they all do.”

        Randale Ganaway testified that he was a correctional counselor at Deberry Special
Needs Facility, that the Petitioner was an inmate in the unit for mental health treatment, and
that he was the Petitioner’s counselor. Ganaway said that when inmates requested something
from him, he prepared a written summary of his discussion with the inmate and entered the
summary into the computer. His computer notes reflected that on December 31, 2008, the
Petitioner requested the address of the federal courthouse in Nashville and that he gave the
address to the Petitioner. The Petitioner also requested the services of a notary and material
from the legal library.

       Ganaway testified that in order to send mail, an inmate had to put the mail in the “pie
flap” of his cell door or give it to a correction officer. Correction officers collected the mail

                                               -3-
and put it in a box for each housing unit. Someone from the mail room then collected the
mail from the boxes at a certain time each day, Monday through Friday. Ganaway said that
“[e]very now and then,” he put mail in a unit box for an inmate and that any employee could
do so. However, employees were “not allowed to fool with . . . mail outside the units.”
Ganaway acknowledged that in January 2009, he may have put mail in the unit box for the
Petitioner. However, he did not specifically remember doing so. He said, though, that he
remembered weighing a package for the Petitioner and telling the Petitioner how many
stamps were needed to mail the package. Ganaway did not put stamps on the package for
the Petitioner.

      On cross-examination, Ganaway testified that he did not read inmates’ mail and did
not know the contents of the Petitioner’s package. Upon being questioned by the post-
conviction court, Ganaway testified that the prison mail room kept a log book in which
employees recorded outgoing legal mail for inmates. Employees did not record outgoing
personal mail.

        Brenda Maxwell testified that she was a clerical officer and notary public at Deberry.
Counsel for the Petitioner showed her a copy of the Petitioner’s January 2009 petition for
post-conviction relief, and she identified her signature on page eight of the document. She
said that the notary seal on the page was “really light” but that she signed the page on January
6, 2009. She stated that the Petitioner’s demeanor was always “normal,” that he was always
cheerful and pleasant, and that he appeared to understand what he was doing. She said
clerical officers never put mail into mailboxes for inmates. On cross-examination, Maxwell
acknowledged that she did not know if an inmate actually mailed a document she notarized.

        Brenda Lyons testified that she was one of two employees in the mail room at Deberry
and was working there in January 2009. She acknowledged that inmate mail was deposited
into a box on the unit floor and that one of the mail room employees picked up the mail from
the box. If an inmate was sending mail to an attorney or a court, the inmate was supposed
to write “legal mail” or “privileged mail” on the envelope. One of the mail room employees
then would write the envelope’s destination and date into a log book. If the inmate did not
write “legal mail” or “privileged mail” on the envelope, the mail generally would not get
logged into the book. However, if Lyons recognized that the envelope was addressed to a
court, she would still log the mail into the book because “common sense would say going to
a court is legal.” Lyons stated that according to the Deberry log book, the Petitioner sent
letters to the United States District Court in Nashville on February 11, 2009, and March 10,
2009. She did not find any other entries for the Petitioner for outgoing mail.

       On cross-examination, Lyons testified that an inmate’s incoming mail, including
returned mail, also was logged into the book. The Petitioner and the State stipulated that

                                              -4-
according to the log book, the Petitioner received two pieces of mail from the United States
District Court in Nashville on February 26, 2009.

        Rebecca Reding testified that she began working in the Deberry mail room in April
2011 and that legal mail had to be marked as “legal” or “privileged” in order for an employee
to log it into the log book. If mail was unmarked, then it was not logged “even if it’s to an
attorney or a court.” She said she did not know if that was the mail room policy in 2009.
Upon being questioned by the post-conviction court, Reding stated that if the postal service
returned mail to an inmate, “we would open it in front of them and give it back to them.”

        The Petitioner testified at the second hearing in May 2013 that he was taking
Risperdal Consta D for his mental health issues and acknowledged that he had “a clear head.”
In 2008, he was an inmate at the Deberry Special Needs Facility. In late April 2008, his trial
attorney notified him that this court had “denied” his direct appeal, that he had sixty days to
appeal to the supreme court, and that she was withdrawing from his case. The Petitioner
requested that the prison legal clerk help him file an appeal. About one month later, Anthony
Clark visited the Petitioner and told him that he had only two weeks remaining in which to
file the appeal. Clark told the Petitioner that the appeal could not be filed in that amount of
time and that his only remedy was to file a petition for post-conviction relief. Clark gave the
paperwork for the petition to the Petitioner, told him to fill it out, and told him to send it to
“the Supreme Court.” Clark also told the Petitioner that it would take one year or one and
one-half years to hear anything about the petition. The Petitioner said that when Clark told
him to send the petition to the supreme court, he thought Clark meant “the Federal Supreme
Court.”

       The Petitioner testified that in August or September 2008, he sent the petition to Clark
because he needed help filling it out. Clark did not respond to the Petitioner’s request, so the
Petitioner asked another inmate for help. The inmate filled out the petition for the Petitioner
in September or October 2008. In December 2008, possibly December 31, the Petitioner
asked counselor Randale Ganaway for the address of the federal supreme court. Ganaway
gave him one address but gave him a second address the next day. On January 6, 2009,
Brenda Maxwell notarized the petition. That same day or the next day, the Petitioner had a
nurse make copies of the petition, and he put the petition into an envelope. The Petitioner
asked Ganaway to weigh the envelope for him. Ganaway told the Petitioner the cost of the
postage, the Petitioner gave the appropriate number of stamps to Ganaway, and Ganaway put
the stamps on the envelope. The Petitioner asked Ganaway to take the envelope to the mail
room because the mail had already been picked up for the day. The Petitioner said that
Ganaway “left out [of] the unit with it like he was going to take it down . . . to the mail room
and give it to them so they can mail it for me.”



                                               -5-
        The Petitioner testified that he did not write “legal mail” or privileged mail” on the
envelope and that he gave the envelope to Ganaway for mailing on January 9 or shortly
thereafter. One and one-half years later, the Petitioner asked his conservator to check on the
status of the petition and learned that he had mailed it to the wrong court. His conservator
helped him fill out a second petition, which he filed in January 2011. The Petitioner stated
that on February 11, 2009, he mailed a civil lawsuit to the United States District Court in
Nashville. He mailed a letter to the district court in March 2009 that could have been related
to that lawsuit. The Petitioner acknowledged that on January 19, 2009, he requested the
address for “the supreme court” from Clark. He said he made the request “to see if I was
gonna get the same information that Ganaway gave me.”

       On cross-examination, the Petitioner acknowledged that he had “a very good memory”
and that he knew he had until April 22, 2009, to file his petition for post-conviction relief.
However, when he mailed his original petition, he did not know there were two different
supreme courts: the Tennessee Supreme Court and the United States Supreme Court.
Therefore, he asked Ganaway only for the federal supreme court address. Ganaway gave him
the address for the federal district court in Nashville. The Petitioner did not see Ganaway
mail the envelope containing the petition for post-conviction relief and never asked Ganaway
if Ganaway mailed it. The Petitioner acknowledged that on January 19, 2009, he requested
“the supreme court” address from Clark. He also acknowledged that according to Clark’s
testimony, Clark sent the address to him on January 23, 2009. However, the Petitioner said
he never received it. The Petitioner acknowledged that in November 2007, he filed a federal
“1983 complaint,” suing the State of Tennessee. He said he mailed the complaint to the
federal district court in Nashville and that he filed a second federal complaint in 2009.
However, he did not know that he was supposed to write “privileged” or “legal mail” on the
envelopes.

        The Petitioner testified that he thought former United States President Bush did not
want him to get a new trial because “the things that happened in my case, you know will open
a lot of doors to a lot of things and to a lot of people.” Regarding whether he actually mailed
his January 2009 petition, he stated that “why would I go through the process of [notarizing
it] and not send it off.” He acknowledged that the federal district court sent some mail to him
in February 2009 but said that the court did not return his post-conviction petition. He
acknowledged that every other time he mailed something to the federal district court, he
received a response from the court. When he mailed his post-conviction petition, though, he
did not receive a response. Nevertheless, he assumed the court received his petition.

       On redirect examination, post-conviction counsel noted that according to Ganaway’s
notes, he gave the Petitioner the district court address with a zip code of 37015, the zip code
for Ashland City, Tennessee, not Nashville. The Petitioner acknowledged that the incorrect

                                              -6-
zip code may have resulted in his petition having never been delivered to the federal
courthouse in Nashville.

         Upon being questioned by the post-conviction court, the Petitioner acknowledged that
in trial counsel’s April 2008 letter, she advised him that he could appeal his conviction to the
Tennessee Supreme Court. He said that despite the letter, he did not know there was a
Tennessee Supreme Court. The post-conviction court responded, “So, I’m supposed to
believe that?” The Petitioner acknowledged that prior to his conviction in this case, he had
a drug conviction and a conviction for aggravated assault. He said that he gave a false name
when he was arrested for the drug charge, said that he served “time” for the convictions, and
acknowledged that he was not a “stranger” to the criminal justice system. He said he had
been taking Risperdal for his mental health issues for fifteen or sixteen years.

        Dr. Renee Glenn, a psychiatrist, testified at the third hearing in September 2013 that
she worked at Deberry from 2007 to 2010 and that Deberry inmates were “either homicidal,
suicidal, or dangerous by means of their thinking.” When the Petitioner arrived at Deberry
in 2007, he was very agitated, anxious, suspicious, and paranoid. He thought the staff was
poisoning him and trying to destroy him. Dr. Glenn said that he was “preoccupied with the
Bush administration, . . . and he was writing copious letters regarding the Bush
administration and how he felt that they were out to destroy him.” She said that the
Petitioner was “acutely psychotic” and that she diagnosed him with anti-social personality
disorder and paranoid schizophrenia. The Petitioner did not think he needed medication and
would refuse to take it, so he was forcefully injected with tranquilizers. The medication was
“significantly helpful” in that it made him less agitated and paranoid and restored his ability
to eat and sleep. In May 2007, Dr. Glenn recommended that a conservator be appointed to
make decisions about the Petitioner’s medical treatment.

       Dr. Glenn testified that in 2007 and 2008, the Petitioner “was probably delusional
everyday.” However, by being on medication, he was able to refrain from making his
delusions known. In January 2008, the Petitioner thought that a security officer was
poisoning his food and lost weight because he stopped eating for a while. He also thought
that “the offspring of Bush” were trying to harm him. In June 2008, a conservator was
appointed to manage his medical treatment. Dr. Glenn acknowledged that by January 2009,
the Petitioner had been stabilized and that prison officials decided to discharge him from
Deberry. The Petitioner was transferred to Riverbend Maximum Security Institution in April
2009 but continued to have a conservator. In the fall of 2009, the Petitioner’s conservator
decided to stop his medications due to his improvement. Dr. Glenn said the Petitioner
“began to slowly decompensate again to becoming very delusional, very paranoid. He started
hearing voices again.”



                                              -7-
       Dr. Glenn testified that the Petitioner was transferred back to Deberry in March 2010,
stayed there one month, and was returned to Riverbend without his medication. In
September 2010, he returned to Deberry because he was “rubbing feces on the wall and the
floors and talking about Bush again - just really having lots of delusions.” In November
2010, the Petitioner returned to Riverbend. Dr. Glenn said that his going back and forth
between the two institutions demonstrated that paranoid schizophrenia was a “chronic
relapsing life-long illness that sometimes allows for remissions, and it waxes and [wanes]
throughout a person’s lifetime.” When Dr. Glenn last saw the Petitioner in September 2010,
he was still paranoid and anxious. In October 2010, he told someone that he was the brother
of Jesus and that the prison staff was trying to kill him.

         Dr. Glenn testified that in December 2008 and January 2009, the Petitioner was
housed in Deberry’s “acute unit,” meaning that he was either on suicide watch or in mental
health seclusion. She said that the Petitioner was always preoccupied with his case and that
“I’m sure there were times when he was in fairly good remission. He might have been able
to do some [legal work].” However, when the Petitioner was “acutely psychotic and really
sick . . . , it’s hard to imagine that [he] would be able to concentrate to carry out one or two
step kinds of processes.” She said that she never tested the Petitioner’s IQ but that “we felt
like he was . . . of possibly lower average intellect.” The Petitioner spent a lot of time writing
letters. Although his letters contained spelling and grammatical errors, “he was pretty much
getting his message across.”

        Dr. Glenn testified that the Petitioner suffered from a mental disease or defect,
paranoid schizophrenia. Post-conviction counsel asked if the paranoid schizophrenia
prevented the Petitioner from understanding his legal position and the options available to
him. Dr. Glenn answered, “Possibly, but not necessarily is the best way I can answer it.”
She explained that his ability to understand his legal position depended on his delusional
state at the time. Defense counsel also asked if the Petitioner’s paranoid schizophrenia
prevented him from making a rational choice among his options. Dr. Glenn said yes, and
cited as an example the Petitioner’s inability to choose to take medication that would help
him.

      Dr. Glenn testified that one time, she thought the Petitioner was malingering by
exaggerating the side effects of his medication. However, she never thought he was
malingering with regard to his schizophrenia symptoms.

         On cross-examination, Dr. Glenn testified that the Petitioner “did have lucid moments
. . . [w]hen he was on medication.” At those times, he could communicate with prison staff
“pretty well.” The Petitioner had a “low average IQ” but could read and write and was
“streetwise.” She said that he was “able to articulate what his needs and desires were very

                                               -8-
well” and that it was “possible but not probable” that he could exaggerate his psychosis. She
acknowledged that in January 2009, she thought the Petitioner was well enough to leave
Deberry. The Petitioner was still delusional but appeared to be doing very well and kept his
underlying paranoid thoughts to himself. At that time, he may have been able to make
rational decisions. Dr. Glenn acknowledged that the Petitioner’s requesting legal documents
and filing those documents were rational behaviors and demonstrated that he was exercising
his legal options. The Petitioner’s asking for legal papers and where to file them showed that
he “certainly is processing some of that information.” On redirect examination, Dr. Glenn
testified that “I have to say just because someone is mentally ill, doesn’t mean that they can’t
make a good decision about some things; but, generally, the illness interferes in every aspect
of their lives.”

       The Petitioner was recalled by post-conviction counsel and acknowledged that he filed
“some federal 1983 lawsuits” from 2007 to 2009, while he was in Deberry. Counsel asked
how he got the idea to file the lawsuits, and the Petitioner stated that “the guy [who]
witnessed the incident” told him that he could file “a 1983 civil suit.” On cross-examination,
the Petitioner acknowledged that he decided to file the lawsuit and that he understood he
could receive money for having been mistreated. The Petitioner filed the lawsuit on February
12, 2009, and no one forced him to do so. He acknowledged that he understood the
difference between a federal 1983 lawsuit and a post-conviction petition but said that he
“thought the post conviction was for federal too.”

        In a written order filed in November 2013, the post-conviction court dismissed the
petition for post-conviction relief as untimely. First, the court concluded that the Petitioner
failed to show that he delivered the original petition to the appropriate individual at the
prison for mailing because the prison log book did not show any mail as having been mailed
by or returned to the Petitioner in January 2009. The court noted that the Petitioner had
successfully filed other lawsuits and that the proof showed he knew the prison’s procedure
for mailing legal documents. The court also noted the Petitioner’s testimony that he
delivered the petition to Ganaway for filing. However, the court found that the Petitioner’s
credibility was “quite weak” and “clouded by dishonesty.” The court also found the
Petitioner’s claim that he did not know about the existence of the Tennessee Supreme Court
to be “incredulous.” In sum, the court concluded that the log book’s failure to show that the
Petitioner mailed the petition in January 2009 was “highly persuasive that no such event
actually occurred.”

        Regarding whether the Petitioner’s mental incompetence tolled the statute of
limitations, the court found that the Petitioner was competent during the one-year period for
filing the petition. The court acknowledged that the Petitioner suffered from a mental disease
or defect, paranoid schizophrenia, during that period. However, the court concluded that the

                                              -9-
Petitioner was well-aware of the legal options available to him at that time, noting that the
Petitioner filed lawsuits against the state, asked the prison legal clerk for documents, and
testified that he knew he had until April 22, 2009, to file the petition for post-conviction
relief. Finally, the post-conviction court concluded that, despite the Petitioner’s mental
disease, he was “undeniably” capable of making a rational decision about the legal options
available to him. The post-conviction court stated that according to the Petitioner’s own
testimony, he understood there was a one-year deadline in which to file the petition, knew
the deadline was April 22, 2009, and “knew who in the prison complex to ask to obtain
instructions about the post-conviction petition or other legal needs (the library clerk), and he
did so frequently.” In short, the court concluded that the Petitioner knew that filing the post-
conviction petition was an option, that the prison legal clerk provided him with the
“necessary tools” to file the petition, and that the Petitioner “did not follow through before
the statute of limitations ran.”

                                         II. Analysis

        The Petitioner contends that the post-conviction court erred by dismissing the petition
because his testimony established that he timely delivered the January 2009 petition to
Ganaway for filing. In support of this claim, the Petitioner cites to Clark’s testimony that
Clark provided the Petitioner with a blank petition on June 5, 2008, that Clark received a
partially completed petition from the Petitioner on December 23, 2008, and that the Petitioner
requested the address of “the supreme court” on January 19, 2009. The Petitioner also cites
Brenda Maxwell’s testimony that she notarized the petition on January 6, 2009, and Randale
Ganaway’s testimony that he weighed an envelope for the Petitioner and placed the envelope
in the unit mailbox sometime in January 2009. The Petitioner contends that from the
witnesses’ testimony, it is logical to conclude that he mailed the petition, albeit to the wrong
court. In the alternative, the Petitioner contends that his mental incompetence tolled the one-
year statute of limitations. The State argues that the post-conviction court properly dismissed
the petition as untimely. We agree with the State.

       “Relief under [the Post-Conviction Procedure Act] shall be granted when the
conviction or sentence is void or voidable because of the abridgment of any right guaranteed
by the Constitution of Tennessee or the Constitution of the United States.” Tenn. Code Ann.
§ 40-30-103. However, to obtain relief

              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

                                              -10-
              consideration of such petition shall be barred.

Tenn. Code Ann. § 40-30-102(a); see also Williams v. State, 44 S.W.3d 464, 468 (Tenn.
2001). The statute emphasizes that 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 such an action and is a condition upon its
exercise. Tenn. Code Ann. § 40-30-102(a). Moreover, “if papers required or permitted to
be filed . . . are prepared by or on behalf of a pro se petitioner incarcerated in a correctional
facility. . . , filing shall be 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).

        The Petitioner contends that his petition for post-conviction relief was timely because
he delivered it to Ganaway for mailing in January 2009. However, although the petition
reflects that the Petitioner signed it in the presence of a notary on January 6, 2009, and
Ganaway said he may have put an envelope in the outgoing mailbox for the Petitioner,
nothing demonstrates that the envelope in question contained the petition. Moreover, the
post-conviction court discredited the Petitioner’s testimony that he gave the petition to
Ganaway and concluded that the Petitioner never mailed the petition. Issues regarding the
credibility of witnesses, the weight and value to be accorded their testimony, and the factual
questions raised by the evidence adduced at trial are to be resolved by the post-conviction
court as the trier of fact. See Henley v. State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore,
the post-conviction court’s findings of fact are entitled to substantial deference on appeal
unless the evidence preponderates against those findings. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001). Given that the prison log book shows no outgoing mail for the Petitioner
in January 2009, the evidence does not preponderate against the findings of the post-
conviction court.

       Next, the Petitioner contends that the post-conviction court should have held that due
process required tolling the statute of limitations for his mental incompetence. Our supreme
court has held that due process may require tolling the statute of limitations. Whitehead v.
State, 402 S.W.3d 615, 622-23 (Tenn. 2013). Specifically, the court has identified the
following three circumstances in which due process requires tolling the statute of limitations:
(1) when the claim for relief arises after the statute of limitations has expired; (2) when the
petitioner’s mental incompetence prevents compliance with the statute of limitations; and (3)
when the petitioner’s attorney has committed misconduct. Id. at 623-24. The second
exception is at issue in this case.

       The standard for determining a petitioner’s competency is

              whether the petitioner possesses the present capacity to

                                              -11-
              appreciate the petitioner’s position and make a rational choice
              with respect to continuing or abandoning further litigation or on
              the other hand whether the petitioner is suffering from a mental
              disease, disorder, or defect which may substantially affect the
              petitioner’s capacity.

Tenn. Sup. Ct. R. 28 § 11(B)(1); Reid ex rel. Martiniano v. State, 396 S.W.3d 478, 512
(Tenn. 2013) (holding that the standards and procedures in Tenn. Sup. Ct. R. 28 § 11 should
be used when a petitioner seeks to toll the statute of limitations based on mental
incompetence). The petitioner has the burden of proving mental incompetence by clear and
convincing evidence. Reid ex rel. Martiniano, 396 S.W.3d at 513.

        “The trial court should begin with a presumption that the petitioner is competent.”
Id. at 512. The court then should use the following three step test:

                     (1) Is the person suffering from a mental disease
                     or defect?

                     (2) If the person is suffering from a mental
                     disease or defect, does that disease or defect
                     prevent him from understanding his legal position
                     and the options available to him?

                     (3) If the person is suffering from a mental
                     disease or defect which does not prevent him
                     from understanding his legal position and the
                     options available to him, does that disease or
                     defect, nevertheless, prevent him from making a
                     rational choice among his options?

                     If the answer to the first question is no[;] the court
                     need go no further, the person is competent. If
                     both the first and second questions are answered
                     in the affirmative, the person is incompetent and
                     the third question need not be addressed. If the
                     first question is answered yes and the second is
                     answered no, the third question is determinative;
                     if yes, the person is incompetent, if no, the person
                     is competent.



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Id. at 513 (quoting Rumbaugh v. Procunier, 753 F.2d 395, 398-99 (5th Cir. 1985)).
Furthermore,

              [t]he third step asks whether a prisoner, despite his or her mental
              disease or defect, is capable of making a rational choice from
              among the available post-conviction options. A decision may be
              rational even when it is not one that the majority would consider
              acceptable, sensible, or reasonable. A decision is rational when
              it is based on a process of reasoning. [In re Conservatorship of
              Groves, 109 S.W.3d 317, 336 (Tenn. Ct. App. 2003)]. A
              person’s decision-making process is rational when that person
              can (1) take in and understand information; (2) process the
              information in accordance with his or her personal values and
              goals; (3) make a decision based on the information; and (4)
              communicate the decision. Groves, 109 S.W.3d at 335.

Id.

        In this case, the post-conviction court properly considered the three-step Rumbaugh
test and answered the first question in the Petitioner’s favor. However, the post-conviction
court answered the second question as to whether the disease or defect prevented the
Petitioner from understanding his legal position and the options available to him in the
negative. The post-conviction court then recognized that the issue turned on the third
question as to whether the disease or defect nevertheless prevented the Petitioner from
making a rational choice among his options. The court again answered in the negative.
Given, as the court noted, the Petitioner’s testimony that he understood he had a right to file
a post-conviction petition, that he knew he had until April 22, 2009, to do so, that he chose
to file the petition, and that he took the appropriate steps toward filing, we agree with the
post-conviction court that he failed to establish his mental incompetence by clear and
convincing evidence. Thus, the post-conviction court properly determined that the statute
of limitations should not be tolled and dismissed the petition as untimely.

                                      III. Conclusion

      Based upon the oral arguments, the record, and the parties’ briefs, we affirm the post-
conviction court’s dismissal of the petition for post-conviction relief.


                                                    _________________________________
                                                    NORMA MCGEE OGLE, JUDGE

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