        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                               September 18, 2012 Session

                JONATHAN ADAMS v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Knox County
                          No. 95646 Bob R. McGee, Judge


               No. E2012-00297-CCA-R3-PC-FILED-MARCH 21, 2013


The Petitioner, Jonathan Adams, appeals as of right from the Knox County Criminal Court’s
denial of his petition for post-conviction relief. Following his direct appeal, the Petitioner,
with the assistance of counsel, filed an untimely petition for post-conviction relief
challenging the performance of trial counsel. Although the issue of timeliness was raised by
the parties, the post-conviction court addressed the petition on the merits and denied relief.
On appeal, the Petitioner contends that his petition was timely filed, alleging two alternative
dates as supplying the requisite final action of this court for purposes of the post-conviction
one-year statute of limitations: (1) the date the corrected judgments were filed in accordance
with this court’s order on remand; or (2) the date this court’s mandate was filed. Having
reviewed the record, the briefs of the parties, and the applicable law, we hold that the final
action of this court was the filing date of its opinion on direct appeal, and therefore, the
post-conviction petition was filed outside of the applicable one-year limitations period. The
appeal is dismissed.

               Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and R OBERT W. W EDEMEYER, JJ., joined.

Keith E. Lowe, Knoxville, Tennessee, for the appellant, Jonathan Adams.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;
Randall E. Nichols, District Attorney General; and Philip H. Morton, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                     OPINION
                               FACTUAL BACKGROUND
        This case aries from the March 25, 2003 home invasion at the residence of Rhonda
Robinson, during which Robinson’s twelve-year-old son, Cody Thomas, was shot to death.
The Petitioner was indicted, along with co-defendants Kenneth Daniel Hunter and
Christopher Shawn Stidham, on two counts of first degree felony murder (with the
underlying felonies of burglary and robbery) and one count each of especially aggravated
robbery, aggravated robbery, and especially aggravated burglary. The defendants’ cases were
severed, with the Petitioner being the only defendant of the three who did not plead guilty.
Following a jury trial, the Petitioner was convicted as charged. A full recitation of the facts
at trial may be found in this court’s opinion on direct appeal. See State v. Jonathan Lee
Adams, No. E2008-00400-CCA-R3-CD, 2009 WL 2176577, at *1-4 (Tenn. Crim. App. July
22, 2009). After merging the two felony murder convictions, the trial court sentenced the
Petitioner to consecutive terms of life in prison for the felony murder and twenty years for
the especially aggravated robbery; the trial court imposed concurrent sentences for the other
convictions.

        The Petitioner appealed to this court. On appeal, the Petitioner argued that the trial
court improperly imposed consecutive sentences and that he was improperly convicted of
especially aggravated burglary when the element of serious bodily injury was an element of
both especially aggravated robbery and especially aggravated burglary. In an opinion issued
on July 22, 2009, we agreed with the Petitioner on both claims. Id. at *1. Thus, we reversed
the Petitioner’s conviction for especially aggravated burglary and remanded the case to the
trial court with instructions to impose concurrent sentences for all convictions, to enter a
judgment of conviction for aggravated burglary, and to impose a three-year sentence as to
that offense. Id. Neither party sought permission to appeal to the Tennessee Supreme Court.
See Tenn. R. App. P. 11. This court issued its mandate on September 28, 2009.

       The Petitioner, with the assistance of counsel, filed a petition for post-conviction relief
on September 27, 2010, alleging therein various claims of ineffective assistance of counsel.
In an amended petition, the Petitioner submitted that the petition was timely filed being “filed
within a year of the final action of the Court of Criminal [A]ppeals, and also as it was filed
within one year of the date the [j]udgment became final in docket number 78[3]56.” The
Petitioner alleged that the July 22, 2009 opinion of this court modifying the Petitioner’s
convictions and sentences “became an enforceable mandate and was sent to the Knox County
Criminal Court Clerk after the expiration of the sixty[-]four[-]day stay.” After filing an
answer addressing the Petitioner’s claims, the State filed an amended answer arguing that the
petition was not timely filed because it was not filed within one year of this court’s decision
on direct appeal.

       A hearing was held in the post-conviction court on January 4, 2012. At the outset
hearing of the hearing, the post-conviction court acknowledged the State’s answer seeking

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dismissal of the petition as untimely.           Defense counsel responded that his statute of
limitations argument was two-fold:

        First, a judgment is a conviction and a sentence. The judgment in this case
        didn’t become final, it’s my contention, until January 28, 2010[,]1 when we
        entered the mandate with the Court of Criminal Appeals . . . .

                I can understand perhaps there’s an argument that because an appeal
        was taken that I can’t count that final judgment, but in theory, your Honor, the
        way the statute is written if, for some reason, the [c]ourt had not acted in
        accordance with what I thought the mandate said, I could have again appealed.
        . . . The judgment in this case didn’t really become final until January 28th,
        2010, when the mandate from the Court of Criminal Appeals altering the
        sentence, because the judgment by definition is both a conviction and sentence.

                Additionally, even if that’s not the case, while the General is correct
        that the signed issued opinion came down July the 22nd, 2009, the final action
        . . . is the issuing of the mandate that orders the trial court to act as the
        appellate court orders.

              There’s a 64[-]day stay on all Court of Criminal Appeals opinions in
        which either side has the opportunity to apply to the Supreme Court in which
        the mandate, if neither side applies, the mandate is then issued.2

        The post-conviction court, in an effort “to save time[,]” reserved ruling on the
timeliness issue, stating that the parties could later brief the issue if they so desired, and then
heard proof on the merits of the petition. Only the Petitioner and trial counsel testified.
After hearing the evidence presented, the post-conviction court denied the Petitioner’s claims
on the merits, noting that its decision “render[ed] moot the issue of the timeliness of the
filing of the appeal.” The prosecutor noted that he was not waiving the statute of limitations
issue for the purposes of appeal and provided the post-conviction court with case law in
support of his contention that the limitations period ran from the filing of the direct appeal
opinion, not the mandate of this court. The post-conviction court asked the prosecutor if he
desired to have a further hearing on the issue, to which the prosecutor replied that he did not.


1
 Counsel is presumably referring to when the trial court entered the corrected judgment forms as instructed
by this court. However, those forms are not a part of the record on appeal.
2
 See Tennessee Rule of Appellate Procedure 42, governing issuance, stay, and recall of mandates from the
appellate courts.

                                                   -3-
The post-conviction court observed that both sides would have the opportunity to brief the
issue further on appeal, stating that a written response was no longer necessary for the post-
conviction court. This timely appeal followed.

                                         ANALYSIS

         On appeal, the Petitioner contends that trial counsel failed to provide the effective
assistance of counsel guaranteed him by the United States and Tennessee constitutions at trial
and that the post-conviction court erred by excluding evidence of the co-defendants’ plea
agreements. Contrary to the post-conviction court’s decision that the statute of limitations
issue was “moot,” we must address the timeliness of the petition as an initial matter. It is
undisputed that “[n]o court shall have jurisdiction” to consider a time-barred petition unless
it falls within one of the enumerated statutory exceptions, see Tennessee Code Annotated
section 40-30-102(b), or is mandated by due process, see Williams v. State, 44 S.W.3d 464,
468 (Tenn. 2001). “Given the post-conviction statute’s language conferring jurisdictional
import to the timely filing of a petition, it is essential that the question of timeliness be
resolved before any adjudication on the merits of the petitioner’s claim may properly occur.”
David Lackey v. State, No. M2004-00558-CCA-R3-PC, 2005 WL 1303124, at *2 (Tenn.
Crim. App. May 31, 2005) (quoting Antonio L. Saulsberry v. State, No.
W2002-02538-CCA-R3-PC, 2004 WL 239767, at *1 (Tenn. Crim. App. Feb. 9, 2004), perm.
app. denied, (Tenn. June 1, 2004)); see also Jason Earl Hill v. State, No. E2005-00968-CCA-
R3-PC, 2006 WL 389667, at *4 (Tenn. Crim. App. Feb. 16, 2006), perm. app. denied, (Tenn.
Sept. 5, 2006).

        Under Tennessee Code Annotated section 40-30-102(a), a post-conviction petition
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.” The
statute provides that the limitations period “shall not be tolled for any reason, including
tolling or saving provision otherwise available at law or equity.” Tenn. Code Ann. § 40-30-
102(a). Failure to file within the limitations period removes the case from the court’s
jurisdiction. Tenn. Code Ann. § 40-30-102(b).

       The limitations period has three statutory exceptions for certain claims involving new
constitutional rights, certain claims involving new scientific evidence, and for sentences
enhanced by subsequently overturned convictions. Tenn. Code Ann. § 40-30-102(b). None
of those exceptions are raised by the Petitioner, and none were found by this court in its
review of the record.




                                               -4-
        In addition to the statutory exceptions, our courts have recognized that due process
requires that the statute of limitations be tolled in certain factual situations. Williams, 44
S.W.3d at 468. “[A] reasonable opportunity to have the claimed issue heard and determined”
is inherent in due process. Sands v. State, 903 S.W.2d 297, 300 (Tenn. 1995) (quoting
Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992)). Consequently, the statutory language
cited above notwithstanding, due process may require tolling when circumstances beyond the
petitioner’s control preclude timely raising the post-conviction claims. Williams, 44 S.W.3d
at 469. For example, due process may toll the statute of limitations when the petitioner is
caught in a procedural trap, Burford, 945 S.W.2d at 208 (concluding due process tolled the
limitations period when a petitioner’s sentence was enhanced by a prior conviction which had
been overturned); when the petitioner is the victim of his counsel’s misrepresentation,
Williams, 44 S.W.3d at 471 (remanding for a determination of misconduct); or when mental
incompetence prevents timely filing, Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000).

        In evaluating whether the statute of limitations should be tolled in the post-conviction
setting based on due process concerns, we utilize the Sands three-step process:

       (1) determine when the limitations period would normally have begun to run;
       (2) determine whether the grounds for relief actually arose after the limitations
       period would normally have commenced; and (3) if the grounds are
       “later-arising,” determine if, under the facts of the case, a strict application of
       the limitations period would effectively deny the petitioner a reasonable
       opportunity to present the claim.

Sands, 903 S.W.2d at 301. Determining whether due process requires an opportunity to
present a claim involves considering:

       (1) the private interest at stake; (2) the risk of erroneous deprivation of the
       interest though the procedures used and the probable value, if any, of
       additional or substitute safeguards; and finally, (3) the government’s interest,
       including the function involved and the fiscal and administrative burdens that
       the additional or substitute procedural requirement would entail.

Seals, 23 S.W.3d at 277.

        In accordance with the three-step process outlined above, we first address when the
limitations period would normally have begun to run. Here, the Petitioner, at different stages
in these proceedings, has espoused two different bases for when the statute of limitations
began to run in this case: (1) when the trial court entered the amended judgments on January
28, 2010, in accordance with this court’s opinion following remand; or (2) when the mandate

                                               -5-
of this court was entered, September 28, 2009. The post-conviction petition was filed within
one year from either of these dates, having been filed on September 27, 2010; however,
neither basis asserted by the Petitioner provides him with relief from the statute of
limitations.

        First, the Petitioner’s argument that the statute began to run when the amended
judgments were filed is without merit. Following oral argument in this case, the State
provided supplemental case law, including the case of Barry N. Waddell v. State, No.
M2001-00096-CCA-R3-CD, 2001 WL 1246393 (Tenn. Crim. App. Oct. 17, 2001), perm.
app. denied, (Tenn. Apr. 8, 2002), to counter the Petitioner’s proposition. Waddell filed a
direct appeal to this court challenging his convictions for rape and aggravated sexual battery
and his effective seventy-year sentence. On June 1, 1999, this court filed its opinion,
reducing Waddell’s sentence to sixty-six years. See State v. Barry Waddell, No.
01C01-9801-CR-00016, 1999 WL 343913, at *8 (Tenn. Crim. App. June 1, 1999).
Thereafter, on August 17, 1999, the trial court entered the amended judgment form to reflect
the action of the Court of Criminal Appeals. Waddell, incarcerated and proceeding pro se,
mailed his petition for post-conviction relief on August 4, 2000, seeking a delayed appeal of
a Rule 11 application. The post-conviction court summarily dismissed the petition as time-
barred. On appeal to this court, Waddell argued that his petition was timely filed, but we
disagreed. See Waddell, 2001 WL 1246393, at *1. We held that “the final action of the
highest state appellate court to which an appeal was taken” was when this court filed its
direct appeal opinion on June 1, 1999; thus, under the Post-Conviction Act, Waddell had one
year from that date to file a petition for post-conviction relief. Id.

        The Petitioner herein argues that his case differs from Waddell because in the
Petitioner’s direct appeal “this [c]ourt not only modified his sentence, but also modified one
of his convictions and remanded [] his case to the trial court. In [Waddell,] this [c]ourt did
not remand to the trial court, and therefore the entering of the amended judgment in that case
was purely ministerial.” This court’s opinion in Waddell’s post-conviction proceedings
makes it clear that an amended judgment form was entered following remand. See Waddell,
2001 WL 1246393, at *1. The case was not remanded for any “additional proceedings” as
such were unnecessary, simply the correction of the judgment. See id. Here, the entry of the
amended judgments was also purely ministerial as this court remanded the case to the trial
court with instructions to impose concurrent sentences for all convictions, to enter a
judgment of conviction for aggravated burglary, and to impose a three-year sentence as to
that offense; there was nothing left for the trial court’s determination. We are not persuaded
by the Petitioner’s distinction.

       Next, we turn to the Petitioner’s allegation that the final action of this court was the
issuance of its mandate. In the State’s brief, the State cites to the case of David Lackey v.

                                              -6-
State, No. M2004-00558-CCA-R3-CD, 2005 WL 1303124 (Tenn. Crim. App. May 31,
2005), to refute the Petitioner’s assertion. Again, the State’s argument is persuasive. In
Lackey, our opinion affirming Lackey’s convictions on direct appeal was filed on September
6, 2002, and no Rule 11 application for permission to appeal to the supreme court was filed.
 The mandate of this court, issued on November 12, 2002. We held that mandate of this
court was not the final action of this court for purposes of the Post-Conviction Act. Lackey,
2005 WL 1303124, at *2 (citing Edward Pinchon v. State, No. M2003-00816-CCA-R3-PC,
2004 WL 193055, at *4 (Tenn. Crim. App. Jan. 28, 2004), perm. app. denied, (Tenn. May
10, 2004); Kenneth P. Bondurant v. State,3 No. M2000-02287-CCA-R3-PC, 2002 WL
31487529, at *5 (Tenn. Crim. App. Oct. 30, 2002)); see also Tenn. R. App. P. 42. Therefore,
according to the Lackey court, “the post-conviction statute of limitations began to run at the
date of the final action of the ‘highest state appellate court to which an appeal [was] taken,’
which was the date our direct appeal opinion was filed, or September 6, 2002.” Lackey,
2005 WL 1303124, at *2 (quoting Tenn. Code Ann. § 40-30-102(a)). This case present
almost an identical factual scenario as in Lackey. The reasoning of the Lackey court is
sound; it is the filing of this court’s opinion on direct appeal, not the issuance of its mandate,
that is the final action of this court.

       We see no reason to depart from these holdings. We conclude that the “final action”
of this court was the filing of its July 22, 2009 opinion, thus, triggering the one-year
post-conviction statute of limitations. By September of the following year, when the
Petitioner filed his petition, the limitations period had expired.

        Reviewing the second factor of the Sands due process analysis, this court finds no
later-arising ground to trigger due process concerns. The Petitioner’s only ground for relief
was ineffective assistance of counsel. This ground for relief existed at the time of the
Petitioner’s conviction and was known to him at that time. We must conclude that no claim
now exists that could not have been raised during the one-year limitations period.

       Additionally, addressing the third factor of Sands, whether due process considerations
should toll the statute of limitations because the Petitioner may have been deprived by
counsel of a reasonable opportunity to seek post-conviction relief, Williams provides
guidance. See Williams, 44 S.W.3d at 471 (remanding for a determination of misconduct).
In Williams, the petitioner averred that he believed trial counsel was continuing to represent
him through the appeals process. Our supreme court remanded for an evidentiary hearing


3
  At oral argument, Petitioner’s counsel attempted to assail the reasoning of the Lackey court, stating that
in both Pinchon and Bondurant, the petitioner’s sought permission to appeal to the Tennessee Supreme
Court, which, according to Petitioner’s counsel, provided distinguishable sets of facts. However, contrary
to the assertion of counsel, no permission to appeal was filed in the Bondurant case.

                                                    -7-
on grounds that the petitioner might “have been denied the opportunity to challenge his
conviction in a timely manner through no fault of his own but because of the possible
misrepresentation of counsel.” Id. at 468.

       Unlike Williams, this is not a case of attorney misconduct but simply one of an
attorney’s lack of knowledge of statute of limitations provisions. Petitioner’s counsel at oral
argument acknowledged that the Petitioner had notice of this court’s July 22, 2009 opinion
when it was mailed to the Petitioner by the court clerk. No Rule 11 application to the
Tennessee Supreme Court was filed. According to counsel, amended judgments were
entered on January 28, 2010, leaving still over six months from that date in which to file a
petition for post-conviction relief. The Petitioner here had a reasonable opportunity to
present his claims. The lack of knowledge of statute of limitations provisions does not
excuse late filings. See Kenneth Smith v. State, No. W2003-01618-CCA-R3-PC, 2004 WL
989827, at *2 (Tenn. Crim. App. May 6, 2004) (citing Waddell, 2001 WL 1246393, at *3);
Alex Skinner v. State, No. 02C01-9403-CC-0039, 1994 WL 369564, at *1 (Tenn. Crim. App.
July 13, 1994), perm. app. denied, (Tenn. 1994).4

        To accept any tolling argument in this case would effectively eviscerate our holding
that the final action of this court is when its direct appeal opinion is filed, not when the
mandate is issued or when amended judgment forms are filed in accordance with our order.
Moreover, because none of the typical disputes regarding due process concerns are present
here, a remand of this matter to the post-conviction court is unnecessary. In summary, we
dismiss the Petitioner’s appeal because we, like the post-conviction court did, lack
jurisdiction due to the Petitioner’s untimely filing of his petition for post-conviction relief.

                                             CONCLUSION

       Based upon the foregoing, we conclude that the petition was untimely filed and,
therefore, lack jurisdiction to entertain the petition on the merits. The appeal is dismissed.


                                                           ________________________________
                                                           D. KELLY THOMAS, JR., JUDGE

4
  At this juncture, we feel compelled to note that “there is no constitutional duty to provide post-conviction
relief procedures.” Serrano v. State, 133 S.W.3d 599, 604 (Tenn. 2004) (citing Burford v. State, 845 S.W.2d
204, 207 (Tenn. 1992)). Post-conviction relief is a statutory creation and, therefore, subject to the
discretionary limitations of the legislature. Id. Furthermore, a post-conviction petitioner has no right to
effective representation at post-conviction proceedings. House v. State, 911 S.W.2d 705, 712 (Tenn. 1995)
(“[T]he scope of the right to counsel is limited and applies only through the first appeal as of right. It does
not apply to post-conviction relief.”) (citing Pennsylvania v. Finley, 481 U.S. 551, 554-55 (1987)).

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