                                                                                      12/05/2017
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT JACKSON
                   Assigned on Briefs July 25, 2017, at Knoxville

              MONTERIOUS BELL v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Shelby County
                  No. 11-02524       James C. Beasley, Jr., Judge
                     ___________________________________

                          No. W2016-01709-CCA-R3-PC
                      ___________________________________


The petitioner, Monterious Bell, appeals the dismissal of his post-conviction petition,
arguing the post-conviction court erred in dismissing the petition as time-barred.
Following our review, we conclude the petition was timely filed. The judgment of the
post-conviction court is reversed and the matter remanded for consideration of the post-
conviction petition in accord with the Post-Conviction Procedure Act.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed;
                                  Case Remanded

J. ROSS DYER, J., delivered the opinion of the court, in which ALAN E. GLENN and
ROBERT H. MONTGOMERY, JR., JJ., joined.

Monterious Bell, Henning, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Karen Cook, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                      OPINION

                                       FACTS

       This post-conviction appeal stems from the petitioner’s participation in a home
invasion on November 1, 2010. The petitioner hired trial counsel, and proceeded to trial
where he was convicted of aggravated burglary and sentenced to fifteen years in
confinement. Subsequent to trial, the trial court ordered trial counsel to represent the
petitioner on direct appeal where counsel challenged the sufficiency of the evidence
supporting the petitioner’s conviction for aggravated burglary. This Court summarized
the underlying facts leading to the petitioner’s conviction as follows:

             The State’s proof at trial showed that on the morning of November
      1, 2010, Odella McKinnon was at home preparing to take a bath when she
      heard the doorbell and then “intense beating” on her iron front door. Ms.
      McKinnon immediately began dressing. As she left the bathroom to open
      the front door, she heard someone “beating” on the back door, and she
      noticed a tan Toyota automobile backed into her driveway. Before she
      could react, she heard “cracking and breaking” on the back door. Ms.
      McKinnon then proceeded directly to her bedroom and retrieved her
      handgun. As Ms. McKinnon approached the back door, the door “flew
      open” and two men rushed inside. Ms. McKinnon fired a single gunshot,
      and the two men turned and fled. Ms. McKinnon testified that she got “a
      good quick look” at the two men, and she stated that she had no trouble
      seeing their faces because it was “a sunny day.” At trial, Ms. McKinnon
      described the first man, later identified as the defendant, as having light
      skin and standing between five feet, eight inches, and five feet, ten inches
      in height, and she described the second man as heavier and bald with darker
      skin.

              Ms. McKinnon called 9-1-1, and Memphis Police Department
      (“MPD”) Officer Martrell Boswell arrived at the scene two to three minutes
      after receiving the call from dispatch. Upon his arrival, Officer Boswell
      observed a black male, the defendant, standing by the driver’s door of the
      tan Toyota parked in Ms. McKinnon’s driveway. When the man noticed
      Officer Boswell’s unmarked police vehicle approaching, he “crossed the
      street and attempted to gently knock on the door” of a neighbor’s house.
      Officer Boswell then detained the defendant in the front yard of the
      neighbor’s house. After other officers arrived at Ms. McKinnon’s
      residence, Officer Boswell had the defendant stand outside Ms.
      McKinnon’s house, and Ms. McKinnon positively identified the defendant
      as the first of the two men who had just broken into her home. Ms.
      McKinnon admitted that, at the preliminary hearing, she initially
      misidentified the second male who had broken into her home, but, at trial,
      she was adamant that she had never misidentified the defendant.

             MPD Officer Patricia Turnmire photographed, among other things, a
      footprint on the back door of Ms. McKinnon’s house and the bottoms of the
      shoes the defendant was wearing on November 1. Based on the ridges on
      the defendant’s shoes, Officer Turnmire believed the defendant’s shoes “to
                                         -2-
      be a match” to the footprint on Ms. McKinnon’s back door. Officer
      Boswell, a self-described “shoe connoisseur,” testified that the defendant
      was wearing Nike “Air Force 1” athletic shoes when he was taken into
      custody and that the treads on those shoes matched the footprint left on the
      back door. Officer Boswell testified that, when the defendant’s accomplice,
      Bryant Johnson, was arrested two hours later, he was wearing Nike “Air
      Max” shoes rather than “Air Force 1” shoes and that the treads on the two
      types of shoes were different.

             Mr. Johnson testified that he had known the defendant since
      childhood and that, on November 1, the defendant picked him up in a tan
      Toyota Camry owned by the defendant’s girlfriend. After the two men
      smoked some marijuana, the defendant drove through Ms. McKinnon’s
      neighborhood looking for houses to burglarize. The defendant backed the
      Camry into Ms. McKinnon’s driveway, and the defendant knocked on the
      front door. When he received no answer, the men proceeded to the back
      door and knocked. The defendant then “kicked the door in.” Mr. Johnson
      entered the house just behind the defendant. Mr. Johnson “heard a shot,”
      and both men fled from the house. Mr. Johnson was arrested later that day,
      and he admitted that he was wearing Nike “Air Max” shoes at the time of
      his arrest. He recalled that the defendant was wearing Nike “Air Force 1”
      shoes at the time of the burglary.

             With this evidence, the State rested. Following the trial court’s
      denial of the defendant’s motion for judgment of acquittal and
      a Momon colloquy, the defendant elected not to testify but did choose to
      present proof. MPD Officer Joshua Leslie testified that he interviewed Mr.
      Johnson following his arrest and that Mr. Johnson had stated, among other
      things, that his accomplice had “kicked in the door” at Ms. McKinnon’s
      residence. Officer Leslie also testified that Mr. Johnson’s shoes did not
      match the shoe print on Ms. McKinnon’s door.

             Based on this evidence, the jury convicted the defendant as charged
      of aggravated burglary. Following a sentencing hearing, the trial court
      sentenced the defendant as a career offender and imposed a sentence of 15
      years’ incarceration, to be served consecutively to his sentences in a
      number of other cases.

State v. Monterious Bell, No. W2013-01592-CCA-R3-CD, 2015 WL 513591, at *1-2
(Tenn. Crim. App. Feb. 5, 2015), perm. app. denied (Mar. 23, 2016) (internal footnotes

                                         -3-
omitted). After our review, this Court upheld the rulings of the trial court, noting the
evidence produced at trial was sufficient to support the petitioner’s conviction. Id. at *3.

       The petitioner then made several procedural missteps after this Court affirmed his
conviction on February 5, 2015. First, the petitioner failed to timely file an application
for permission to appeal to the Tennessee Supreme Court. Absent an application to our
supreme court, this Court issued the mandate on April 27, 2015. After the mandate
issued, the petitioner filed a pro se application for permission to appeal and a motion for
appointment of counsel on December 14, 2015. At the time, trial counsel was still the
petitioner’s counsel of record, as he failed to withdraw from the petitioner’s case after
this Court affirmed the petitioner’s conviction on direct appeal. On January 25, 2016, our
Supreme Court ordered trial counsel to show cause as to why the petitioner’s application
for permission to appeal should not be dismissed as untimely.1 According to trial
counsel, the petitioner did not have any meritorious claims to pursue on which to support
an application for permission to appeal and, therefore, he and the petitioner agreed not to
seek further review.2 After the show cause hearing and despite its untimeliness, our
Supreme Court reviewed the petitioner’s application and denied the same on March 23,
2016.3 Specifically, the Court’s order stated:

               The application for permission to appeal filed by the defendant,
        Monterious Bell, is untimely. However, in the interest of justice, the timely
        filing requirements of Tenn. R. App. P 11(b) are waived. Upon
        consideration of the application for permission to appeal of Monterious Bell
        and the record before us, the application is denied. Counsel for Mr. Bell,
        Paul Springer, has filed a motion to withdraw as counsel. That motion is
        denied as moot.

The Court, however, failed to issue a mandate ordering the same.

       Subsequently, the petitioner filed a pro se petition for post-conviction relief on
June 31, 2016.4 In his petition, the petitioner alleged trial counsel was ineffective in that
he: (1) failed to adequately prepare for trial; (2) failed to “pursue any constitutional

        1
         In the order, the Supreme Court stated the petitioner’s Rule 11 application was due no later than
April 6, 2015. See Tenn. R. App. P. 11(b). The Court also denied the petitioner’s motion for
appointment of counsel, noting the petitioner was still being represented by trial counsel.
        2
         A transcript from the show cause hearing is absent from record before this Court.
        3
         At the show cause hearing, trial counsel also moved to be dismissed from the petitioner’s case.
The Supreme Court, however, denied trial counsel’s motion as moot.
        4
         Though we recognize no such date exists, the petition is file stamped “June 31, 2016.”
According to the certificate of service, the petitioner gave the petition to prison officials on June 27, 2016.
See Tenn. R. Crim. P. 49(d).
                                                    -4-
violations;” (3) failed to file “requested” motions and subpoenas on behalf of the
petitioner; (4) failed to properly notify the petitioner that counsel would not file a Rule 11
application or provide the petitioner with records in order for the petitioner to do the
same; (5) failed to properly advise the petitioner of an initial offer made by the State and
failed to advise the petitioner of the sentence the petitioner faced at trial if rejected; (6)
failed to adequately represent the petitioner at the sentencing hearing; and (7) failed to
preserve for appeal the trial court’s error of “placing undue weight on the [p]etitioner’s
enhancement factors and totally disregard[ing] [the] [p]etitioner’s mitigating factors.”
The petitioner also alleged he was abandoned by trial counsel, thus tolling his post-
conviction statute of limitations. The petitioner asserted trial counsel did not properly
withdraw from his case and did not notify the petitioner of his intent not to file a Rule 11
application on the petitioner’s behalf. The petitioner also asserted trial counsel “impeded
[the] [p]etitioner’s diligent efforts to file a timely petition.” Finally, the petitioner asserts
because of prison “lock downs,” he “has been denied access to the prison library, legal
materials.” In support of his post-conviction claims, the petitioner attached two
documents indicating the South Central Correction Center, where he was housed, was on
lock down on January 27, 2016 and March 17, 2016. The post-conviction court
summarily dismissed the petition as untimely, and this pro se appeal followed.

                                         ANALYSIS

        On appeal, the petitioner asserts his lack of knowledge of post-conviction
procedure and due process concerns tolled the one-year statute of limitations for his post-
conviction claims. The petitioner states as “a poorly educated layman,” he failed to
understand the one-year statute of limitations applicable to his post-conviction claims and
“depended solely on counsel’s instruction.” Further, the petitioner states during the time
period in which he had to file his post-conviction petition, he believed he was still
represented by counsel, and as such, could not proceed with a pro se petition.
Additionally, the petitioner complains that various inconveniences while he was
incarcerated also led to his untimely post-conviction petition. The State argues the
petition for post-conviction relief was untimely under Williams v. State and that no facts
exist to support due process tolling of the one-year statute of limitations. 44 S.W.3d 464,
470-71 (Tenn. 2001). Upon our review of the record, we conclude the petitioner filed a
timely petition for post-conviction relief. However, because the post-conviction court
summarily dismissed the petition, we remand this matter to the trial court for proceedings
consistent with this opinion.

       A post-conviction petitioner has one year from “the date of the final action of the
highest state appellate court to which an appeal is taken” to file a petition for relief.
Tenn. Code Ann. § 40-30-102(a). “Time is of the essence of the right to file a petition for
post-conviction relief.” Id. Untimely filing of a post-conviction petition extinguishes a
                                              -5-
petitioner’s post-conviction claims unless a petitioner can establish he is entitled to due
process tolling of the statute of limitations. Id. The Tennessee Supreme Court has
outlined limited circumstances which call for due process tolling of untimely post-
conviction petitions. One such circumstance allows a petitioner to prove his post-
conviction petition was untimely due to attorney misrepresentation. Williams, 44 S.W.3d
at 470-71. In order to succeed, a petitioner must provide sufficient facts which prove
attorney misrepresentation affected the filing of his post-conviction petition. Tenn. Code
Ann. § 40-30-104. Absent sufficient facts establishing a petitioner is entitled to due
process tolling, an untimely petition must be dismissed. Eddie Williams v. State, No.
W2011-00202-CCA-R3-PC, 2011 WL 2410364, at *1-2 (Tenn. Crim. App. June 9,
2011), perm. app. denied, (Tenn. Oct. 18, 2011).

        On appeal, the State argues the petitioner’s post-conviction petition was correctly
dismissed by the post-conviction court as it was untimely filed pursuant to Williams v.
State. 44 S.W.3d at 470-71. Upon our review of the record and applicable law, however,
we disagree. In Williams, the petitioner filed an untimely post-conviction petition after
his Rule 11 petition was dismissed as time-barred. Id. at 465. In the context of a Rule 11
dismissal, the Williams court “emphasize[d] that under no circumstance are we allowing
a petitioner to file an untimely application for permission to appeal with the belief that the
one-year post-conviction statute would commence upon this Court’s dismissal of that
untimely application.” Id. at 471 (emphasis added). Further, the Williams court stated
the untimely filing of an application for permission to appeal to the Tennessee 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.” Id.

       In this case, however, the record shows, “[u]pon consideration of the [Rule 11]
application,” our Supreme Court denied the petitioner’s application for permission to
appeal. Rather than simply dismissing the petitioner’s Rule 11 application as in
Williams, here, our Supreme Court reviewed the petitioner’s Rule 11 application and
denied it upon consideration of the merits. As such, we conclude the present facts differ
from Williams and therefore, a different result is warranted. Because our Supreme Court
considered and ruled on the petitioner’s Rule 11 application, albeit a denial, the Court’s
order of March 23, 2016 constituted “the date of the final action of the highest state
appellate court to which an appeal [was] taken.” Tenn. Code Ann. § 40-30-102(a).
Accordingly, the petitioner had until March 23, 2017, to file his petition for post-
conviction relief. Id. The petitioner’s June 31, 2016 petition for post-conviction relief
was, therefore, timely filed.5 Accordingly, because the post-conviction court summarily


       5
       See footnote 4.
                                            -6-
dismissed the petition, we remand the case to the post-conviction court for consideration
of the petition in accord with the Post-Conviction Procedure Act.

                                    CONCLUSION

      Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is reversed and remanded.



                                            ____________________________________
                                            J. ROSS DYER, JUDGE




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