        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs May 7, 2013

       SANDRA HENDRICKS FRANKLIN v. STATE OF TENNESSEE

                Direct Appeal from the Circuit Court for Tipton County
                         No. 5975    Joseph H. Walker, Judge




               No. W2012-01445-CCA-R3-PC - Filed September 26, 2013


N ORMA M CG EE O GLE, J., dissenting.

       I respectfully disagree with the majority’s upholding the trial court’s summary
dismissal of the petitioner’s pro se post-conviction petition. I acknowledge that the petition
was filed beyond the one-year statute of limitations for filing a post-conviction petition. See
Tenn. Code Ann. § 40-30-102(a). However, our supreme court has held that due process
may require the statute of limitations to be tolled in cases where its strict application would
deny the petitioner “‘a reasonable opportunity to assert a claim in a meaningful time and
manner.’” Williams v. State, 44 S.W.3d 464, 468 (Tenn. 2001) (quoting Seals v. State, 23
S.W.3d 272, 279 (Tenn. 2000)). Notably, “a post-conviction petitioner should not be denied
a reasonable opportunity to raise a claim due to another’s misconduct.” Sample v. State, 82
S.W.3d 267, 277 (Tenn. 2002); see also Williams, 44 S.W.3d at 468.

        The majority concludes that “other than a bare allegation that Petitioner did not know
of the November 10, 2010 date of the supreme court’s action, Petitioner fails to allege any
circumstances that prevented her from filing the petition in a timely fashion or any situation
that would require tolling of the statute of limitations.” The petitioner alleged in her petition
that she did not “receive[] any notification concerning the Supreme Court’s ruling” and that
she “wait[ed] for correspondence from [c]ounsel, but never received a response.” She filed
her petition approximately six months after the statute of limitations expired. Previously, this
court has concluded that a petitioner who alleged that he was afforded no notice of the denial
of his application for permission to appeal to the supreme court was entitled to an evidentiary
hearing “‘to determine (1) whether due process tolled the statute of limitations so as to give
the [petitioner] a reasonable opportunity after the expiration of the limitations period to
present his claim in a meaningful time and manner; and (2) if so, whether the [petitioner’s]
filing of the post-conviction petition . . . was within the reasonable opportunity afforded by
the due process tolling.’” Michael Braxton v. State, No. M2004-00791-CCA-R3-PC, 2005
WL 1303121, at *3 (Tenn. Crim. App. at Nashville, May 31, 2005) (quoting Williams, 44
S.W.3d at 471). In my view, the instant case warrants a hearing to determine if due process
concerns require the tolling of the statute of limitations. Therefore, I would reverse the post-
conviction court’s decision and remand for a hearing.


                                                    ___________________________________
                                                    NORMA MCGEE OGLE, JUDGE




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