         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                             Assigned on Briefs October 7, 2003

            ANTONIO L. SAULSBERRY v. STATE OF TENNESSEE

                      Appeal from the Criminal Court for Shelby County
                           No. P-23305    Joseph B. Dailey, Judge



                   No. W2002-02538-CCA-R3-PC - Filed February 9, 2004


Antonio L. Saulsberry appeals from the Shelby County Criminal Court’s denial of his petition for
post-conviction relief, in which he alleged that he received the ineffective assistance of counsel. In
this appeal, he raises two challenges to the lower court’s ruling on the ineffectiveness claim. Having
reviewed the record, the briefs of the parties, and the applicable law, we hold that the petitioner’s
post-conviction petition was untimely and therefore dismiss the appeal.

                             Tenn. R. App. P. 3; Appeal Dismissed.

JAMES CURWOOD WITT , JR., J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, J., joined. NORMA MCGEE OGLE, J., concurred in results.

Charles W. Gilchrist, Jr., Memphis, Tennessee, for the Appellant, Antonio L. Saulsberry.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Robert Carter and Terry Harris, Assistant
District Attorneys General, for the Appellee, State of Tennessee.

                                             OPINION

               The petitioner was convicted by a jury of first degree murder, especially aggravated
robbery, and conspiracy to commit aggravated robbery. State v. Antonio L. Saulsberry, No. 02C01-
9710-CR-00406, slip op. at 3 (Tenn. Crim. App., Jackson, Dec. 21, 1998). On direct appeal, this
court reversed and dismissed the first degree murder conviction based upon insufficiency of proof,
affirmed the remaining two convictions, and remanded for further proceedings. See id., slip op. at
8, 34. The petitioner did not seek supreme court review of the convictions that this court affirmed.

                He then filed the present post-conviction petition attacking the robbery and conspiracy
convictions. He alleged in his petition that he was deprived of the effective assistance of counsel
in the conviction proceedings and that he was denied the right to second-tier review. The lower court
conducted a hearing, at which it received the testimonial evidence of the petitioner and his former
counsel. The lower court ruled that the petitioner had been afforded the effective assistance of
counsel and that he had been adequately informed of his right to seek supreme court review of his
convictions. Thus, the court denied post-conviction relief.

                Our review of this case begins with a matter not raised by the parties, that being the
question of timeliness of the petition. The petition represents that the petitioner signed the
verification on April 6, 2000. The file stamp is not entirely legible on the copy of the post-
conviction petition that is in the appellate record. The file stamp reveals that the petition was filed
on the ninth day of a month in the year 2000; the month is not legible. This court’s opinion in the
petitioner’s direct appeal was filed on December 21, 1998. Accordingly, any date in the year 2000
would be outside the applicable one year statute of limitations for post-conviction relief. See
generally Tenn. Code Ann. § 40-30-102(a) (2003). The petitioner alleged in his pro se petition that
he had not complied with the statute of limitations because his trial counsel had not advised him of
the limitations period for seeking post-conviction relief. Surprisingly, however, neither the state nor
the lower court addressed the issue of timeliness in the proceedings below.

               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 claims may properly occur. See id. § 40-30-102(b)
(2003); John Parker Roe v. State, No. W2000-02788-CCA-R3-PC (Tenn. Crim. App., Jackson, Nov.
20, 2002), perm. app. denied (Tenn. 2003).

               If a petition is not filed within the one year statute of limitations, it nevertheless may
be considered if its allegations fall within three rather narrow exceptions:

        (1)     The claim in the petition is based upon a final ruling of an appellate court
                establishing a constitutional right that was not recognized as existing at the
                time of trial, if retrospective application of that right is required. Such
                petition must be filed within one (1) year of the ruling of the highest state
                appellate court or the United States supreme court establishing a
                constitutional right that was not recognized as existing at the time of trial;
        (2)     The claim in the petition is based upon new scientific evidence establishing
                that such petitioner is actually innocent of the offense or offenses for which
                the petitioner was convicted; or
        (3)     The claim asserted in the petition seeks relief from a sentence that was
                enhanced because of a previous conviction and such conviction in the case
                in which the claim is asserted was not a guilty plea with an agreed sentence,
                and the previous conviction has subsequently been held to be invalid, in
                which case the petition must be filed within one (1) year of the finality of the
                ruling holding the previous conviction to be invalid.

Tenn. Code Ann. § 40-30-102(b)(1)-(3) (2003). Additionally, due process may, in very limited
circumstances, require tolling of the post-conviction statute of limitations. See generally Seals v.


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State, 23 S.W.3d 272 (Tenn. 2000); Burford v. State, 845 S.W.2d 204 (Tenn. 1992). The petitioner
acknowledges in this petition that his filing was outside the one year statute of limitations. His
excuse for late filing, that he was unaware of the limitations period, neither fits within any of the
three statutory exceptions nor calls for a due process-based waiver of the limitations bar. See,
e.g.,Williams v. State, 44 S.W.3d 464 (Tenn. 2001); State v. Phillips, 904 S.W.2d 123 (Tenn. Crim.
App. 1995) (ignorance of post-conviction statute of limitations, even when based upon attorney’s
failure to render advice, does not constitute grounds for avoiding limitations bar). Thus, his petition
should have been dismissed as untimely, insamuch as the lower court was without jurisdiction to
entertain it. See Tenn. Code Ann. § 40-30-102(a), (b) (2003).

                In many cases that have come before the appellate courts in which the petitioner’s
compliance with the statute of limitations is an issue, the appellate courts have remanded for
evidentiary hearings. See, e.g., Butler v. State, 92 S.W.3d 387, 390 (Tenn. 2002). Unlike the typical
case in which there is a question whether the petitioner has actually complied with the statute of
limitations or has conformed to the prison mailbox rules, the petitioner in this case admits that his
filing is untimely. See John Parker Roe, slip op. at 4-5 n.2 (question of fact whether petition has
been timely filed); see generally Butler, 92 S.W.3d at 390. Moreover, the petitioner has not
articulated facts which, if proven, would afford him any relief from the limitations bar. See Tenn.
Code Ann. § 40-30-102(b)(1)-(3) (2003). Likewise, there is no factual indication that due process
concerns are implicated. See Williams, 44 S.W.3d 464 (attorney misrepresentation, as opposed to
negligence, about continuing representation may toll statute of limitations on due process grounds).
As such, his petition was subject to summary dismissal. See Tenn. Code Ann. § 40-30-106(b)
(2003); State v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001) (compliance with statute of limitations is
element of right to file petition for post-conviction relief; incumbent upon petitioner to allege either
compliance with or tolling of limitations period). The fact that the lower court did not take that
action does not allow the petitioner, at this juncture, to avoid operation of the statute of limitations.
As such, his appeal must be dismissed due to the untimeliness of the underlying petition. This court
lacks jurisdiction to adjudicate the case.

               Paradoxically, we must address the issue raised by the petitioner due to the possibility
of further appeal of our dismissal of the case. See State v. Pendergrass, 13 S.W.3d 389, 395 (Tenn.
Crim. App. 1999).

                The petitioner claims error in the lower court’s ruling that he was provided with the
effective assistance of counsel at trial. In the lower court, the petitioner had the burden of proving
the claims raised by clear and convincing evidence. See Tenn. Code Ann. § 40-30-110(f) (2003).
On appeal, the post-conviction court’s factual findings are reviewed de novo with a presumption of
correctness unless the evidence preponderates otherwise; however, that court’s conclusions of law
receive purely de novo review with no presumption of correctness. Fields v. State, 40 S.W.3d 450,
457-58 (Tenn. 2001).

               When a petitioner challenges the effective assistance of counsel, he has the burden
of establishing (1) deficient representation and (2) prejudice resulting from that deficiency.


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Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064 (1984); Baxter v. Rose, 523
S.W.2d 930, 936 (Tenn. 1975). Deficient representation occurs when counsel provides assistance
that falls below the range of competence demanded of attorneys in criminal cases. Bankston v. State,
815 S.W.2d 213, 215 (Tenn. Crim. App. 1991). Prejudice is the reasonable likelihood that, but for
deficient representation, the outcome of the proceedings would have been different. Overton v.
State, 874 S.W.2d 6, 11 (Tenn. 1994). On review, there is a strong presumption of satisfactory
representation. Barr v. State, 910 S.W.2d 462, 464 (Tenn. Crim. App. 1995). Because a petitioner
must establish both deficient representation and prejudice therefrom, relief may be denied when
proof of either is deficient. Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

                 The petitioner first claims in his post-conviction appeal that trial counsel was
ineffective in failing to pursue vigorous cross-examination of a key state’s witness. The lower court
found that trial counsel made a sound strategic decision not to pursue an aggressive cross-
examination of the witness in question. Indeed, trial counsel testified that based upon the substance
of the witness’s testimony, much of which had been admitted by the petitioner in an inculpatory
statement, he believed the better course did not entail vigorously attacking this witness’s credibility.
Upon appellate review, we cannot say that the evidence preponderates against the trial court’s
determination that counsel’s strategy was sound. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2065
(post-conviction petitioner must overcome presumption that course chosen by counsel was sound
trial strategy).

                 The petitioner also claims that trial counsel was ineffective in failing to seek
permission to appeal to the supreme court the court of criminal appeals’ affirmance of his especially
aggravated robbery and conspiracy convictions. Counsel testified that although he advised the
petitioner of his right to seek permissive appeal to the supreme court, counsel did not give this advice
in writing, nor did counsel file a motion to withdraw from the petitioner’s case. Counsel testified,
however, that he did not think there was a valid basis for seeking further review of the defendant’s
convictions. The lower court found that the petitioner was adequately advised of his appeal rights
and denied post-conviction relief. We disagree that counsel adequately discharged his obligations.
Had we not determined that the petition in this case was not timely filed, the facts presented would
warrant post-conviction relief in the form of a delayed appeal. See Tenn. R. Sup. Ct. 28, § 9(D);
Gibson v. State, 7 S.W.3d 47, 48-49 (Tenn. Crim. App. 1998).

               In summary, we dismiss the petitioner’s appeal because we, like the trial court, lack
jurisdiction due to the petitioner’s untimely filing of his petition for post-conviction relief.




                                                        ___________________________________
                                                        JAMES CURWOOD WITT, JR., JUDGE




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