         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                               Assigned on Briefs July 21, 2004

             DEMETRIUS LANCASTER v. STATE OF TENNESSEE

                         Appeal from the Circuit Court for Giles County
                           No. 10179     Robert L. Holloway, Judge



                   No. M2002-02432-CCA-R3-PC - Filed September 15, 2004


The petitioner, Demetrius Lancaster, appeals as of right from the order of the Giles County Circuit
Court holding that his petition for post-conviction relief was barred by the statute of limitations. The
petitioner contends that the trial court erred in dismissing his petition for being filed outside the one-
year statute of limitations for filing post-conviction relief. We affirm the trial court.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which ROBERT W. WEDEMEYER , J., and
JOE G. RILEY , SP . J., joined.

Lucy D. Henson, Pulaski, Tennessee, for the appellant, Demetrius Lancaster.

Paul G. Summers, Attorney General and Reporter; J. Ross Dyer, Assistant Attorney General; T.
Michel Bottoms, District Attorney General; and Patrick S. Butler, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                               OPINION

        On September 15, 1997, the petitioner pled guilty to one count of attempted murder, one
count of aggravated robbery, nine counts of aggravated assault, one count of reckless endangerment,
one count of possession of a deadly weapon, three counts of possession of cocaine, and five counts
of forgery. The trial court sentenced him to fifteen years in prison. On September 26, 2001, the
petitioner filed a petition for post-conviction relief alleging that his plea was not voluntary and
knowing, that the trial court did not properly accept his guilty plea and that he received the
ineffective assistance of counsel. On motion by the state, the trial court summarily dismissed the
petition finding it was barred by the one-year statute of limitations.

        On appeal, the petitioner contends that the one-year statute of limitations for the filing of a
post-conviction petition should have been tolled because during his guilty plea hearing, he was
taking Thorazine, Haldol, Zoloft and “Coldgent.” He argues these medications prevented him from
understanding his rights and rendered him mentally incompetent. The state argues that the petitioner
has failed to allege that he was mentally incompetent during the entire four-year period from the
entry of judgment until the filing of the petition for post-conviction relief, and therefore, the trial
court properly dismissed the petition. We agree with the state.

        The Tennessee Post-Conviction Procedure Act specifies that

                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
                such a petition will be barred. The statute of limitations shall not be
                tolled for any reason, including any tolling or saving provision
                otherwise available at law or equity.

T.C.A. § 40-30-202(a).

         If a petitioner files a petition for post-conviction relief outside the one-year statute of
limitations, a court may still consider it if (1) a new constitutional right has been recognized; (2) the
petitioner’s innocence has been established by new scientific evidence; or (3) a previous conviction
that enhanced the petitioner’s sentence has been held to be invalid. Id. at § 40-30-102(b)(1)-(3). A
court may also consider an untimely petition for post-conviction relief if applying the statute of
limitations would deny the petitioner due process. Burford v. State, 845 S.W.2d 204, 208 (Tenn.
1992); see, e.g., Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000) (holding that due process mandates
the tolling of the statute of limitations during periods of a petitioner’s mental incompetence in order
not to deny the petitioner “an opportunity to raise a claim in a meaningful manner”). In this regard,
our supreme court has provided certain pleading requirements for a petitioner seeking a tolling of
the statute because of mental incompetence:

                [T]o make a prima facie showing of incompetence requiring tolling
                the limitations period, a post-conviction petition must include specific
                factual allegations that demonstrate the petitioner’s inability to
                manage his personal affairs or understand his legal rights and
                liabilities. Unsupported, conclusory, or general allegations of mental
                illness will not be sufficient to require tolling and prevent summary
                dismissal under Tenn. Code Ann. § 40-30-206(b) & (f). The required
                prima facie showing may be satisfied by attaching to the petition
                affidavits, depositions, medical reports, or other credible evidence
                that contain specific factual allegations showing the petitioner’s
                incompetence. While affidavits and depositions of mental health
                professionals may be utilized, they are not essential, and a petitioner
                may rely upon affidavits and depositions from family members,


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                prison officials, attorneys, or any other person who has knowledge of
                facts that demonstrate either the petitioner’s inability to manage his
                personal affairs or the petitioner’s inability to understand his legal
                rights and liabilities.

State v. Nix, 40 S.W.3d 459, 462-64 (Tenn. 2001) (citations omitted).

        In the present case, the petitioner has not alleged sufficient facts that, taken as true, warrant
a legal conclusion that he was mentally incompetent to file a post-conviction claim at all times
material to the statute of limitations. The petition states that the petitioner was under the influence
of various medications during the plea hearing, but it does not allege that he was under the influence
of these medications during the entire four-year period from his conviction to the filing of his
petition. The petition also fails to allege that the petitioner’s taking the medications rendered him
unable to understand his legal rights and liabilities. Finally, the petition does not include affidavits
from mental health professionals or family members attesting to the petitioner’s mental
incompetence during the entire limitations period. Unsupported and conclusory claims such as these
are insufficient to make a prima facie showing that the one-year statute of limitations should be
tolled. See Nix, 40 S.W.3d at 464. We hold that the trial court’s dismissal of the petition was proper
because it was filed outside the one-year statute of limitations and we affirm the judgment of the trial
court.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




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