         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                                  November 2, 2004 Session

                 DERRICK McCLURE v. STATE OF TENNESSEE

                  Direct Appeal from the Criminal Court for Shelby County
                     No. P-26083    John P. Colton, Jr., Presiding Judge



                  No. W2004-00519-CCA-R3-PC - Filed February 15, 2005


The petitioner, Derrick McClure, appeals from the post-conviction court’s dismissal of his petition
for post-conviction relief. He contends that the post-conviction court erred in concluding that his
petition was untimely filed without conducting an evidentiary hearing to determine whether due
process considerations tolled the statute of limitations. On appeal, we reverse the decision of the
post-conviction court and remand the case for an evidentiary hearing consistent with this opinion.

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

J.C. MCLIN , J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT W.
WEDEMEYER, JJ., joined.

Paul J. Springer, Memphis, Tennessee, for the appellant, Derrick McClure.

Paul G. Summers, Attorney General and Reporter; Rachel E. Willis, Assistant Attorney General;
William L. Gibbons, District Attorney General; and Steve Crossnoe, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                             OPINION

        The petitioner was convicted of first degree murder, attempted first degree murder, and two
counts of especially aggravated robbery on September 26, 1996, and received a life sentence plus
twenty-five (25) years. The petitioner’s convictions were affirmed on appeal on March 31, 1998.
State v. Derrick McClure, No. 02C01-9705-CR-00192, 1998 WL 148322 (Tenn. Crim. App., at
Jackson, March 31, 1998), perm. app. denied (Tenn. Dec. 7, 1998). The Tennessee Supreme Court
denied the petitioner’s application for permission to appeal on December 7, 1998. On January 15,
2002, the petitioner filed his pro se petition for post-conviction relief, claiming that he received
ineffective assistance of counsel. In the petition, the petitioner alleged that, despite his continued
requests for information, he received no communication from his attorney informing him of the
status of his Rule 11 application for permission to appeal to the Tennessee Supreme Court; therefore,
he did not file for post-conviction relief until after the expiration of the statute of limitations. The
petitioner argued that his untimely filing was the result of his attorney’s abandonment of the case
without notifying the petitioner of his right to proceed further. The trial court dismissed the petition
without conducting an evidentiary hearing, finding that the petitioner filed his petition outside the
one-year statute of limitations and no statutory exceptions or due process considerations existed to
toll the statute of limitations. The petitioner now appeals the dismissal of his post-conviction
petition.

        On appeal, the petitioner argues that the trial court erred in dismissing his petition for
post-conviction relief as untimely without conducting an evidentiary hearing to determine whether
due process considerations tolled the statute of limitations for filing a petition for post-conviction
relief. The State argues that the trial court properly dismissed the petition for post-conviction relief
because the one-year statute of limitations had expired, and the petitioner’s case does not present the
appropriate circumstances for tolling the statute of limitations under due process.

       Initially, we note that the Post-Conviction Procedure Act unambiguously mandates the
following:

       [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 petition shall 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.
       Time is of the essence . . . . Except as specifically provided in subsections (b) and (c),
       the right to file a petition for post-conviction relief or a motion to reopen under this
       chapter shall be extinguished upon the expiration of the limitations period.

Tenn. Code Ann. § 40-30-102(a) (2003).

        However, The Post-Conviction Procedure Act does permit the extension of the one-year
statute of limitations period for: (1) claims based on a final appellate court ruling establishing a
constitutional right not recognized at the time of trial, but given retroactive effect by the appellate
court; (2) claims based upon new scientific evidence establishing that the petitioner is actually
innocent; and (3) claims seeking relief from an enhanced sentence that was based upon convictions
later determined to be invalid. Tenn. Code Ann. § 40-30-102(b). Additionally, due process requires,
in certain circumstances, that the statute of limitation be tolled. See Williams v. State, 44 S.W.3d
464 (Tenn. 2001); Seals v. State, 23 S.W.3d 272 (Tenn. 2000); Buford v. State, 845 S.W.2d 204
(Tenn. 1992).

        In this case, the petitioner filed his pro se petition for post-conviction relief more than four
(4) years after our supreme court denied his Rule 11 application to appeal. Also, the petitioner does
not articulate facts which prove the existence of any of the exceptions listed in Tennessee Code


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Annotated section 40-30-102(b). Instead, the petitioner contends that he should be allowed to
maintain an untimely post-conviction action because dismissal would deny him due process. In
making his argument, the petitioner primarily relies on Williams for authority.

         In Williams, the petitioner filed his post-conviction petition nine (9) months after the statute
of limitations had expired, alleging that no notification was given by his appointed counsel regarding
the status of his direct appeal, counsel’s intent to withdraw, and counsel’s untimely application for
permission to appeal to the supreme court. Williams, 44 S.W.3d at 466. The Tennessee Supreme
Court stated that "[i]f a defendant erroneously believes that counsel is continuing to represent him
or her, then the defendant is essentially precluded from pursuing certain remedies independently."
Id. at 469. Our supreme court explained further, stating that:

        judicial economy dictates that only one appeal should be considered at one time; if
        a Rule 11 application is granted and this Court finds in favor of the appellant, the
        post conviction petition would most likely be dismissed or continuously amended to
        reflect the on-going litigation. [Also], the issues raised in a post-conviction petition
        cannot be ripe for review if a Rule 11 application is pending a decision by this Court.
        And finally, the issues in the post-conviction petition would be rendered moot if the
        Court reversed the conviction and remanded for a new trial.

Id. at 469-70 (citations omitted). After reviewing the record, our supreme court noted 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 his counsel." Id. at 468.
Our supreme court determined that if such misrepresentation existed, then due process required the
tolling of the statute of limitations. Id. at 471. Consequently, the case was remanded to the trial
court for 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." Id. In so holding, our supreme court declined "to arbitrarily determine
what length of time constitutes ‘enough time’ for a [petitioner] to pursue post-conviction appellate
review." Id. Rather, our supreme court stated that "this is a question of fact for the trial court." Id.

        Although not quite the procedural quagmire, the facts of this case are somewhat similar to
Williams. Here, the petitioner attributes his failure to file a timely petition to his attorney. The
petitioner alleges that he did not receive any communication from his attorney regarding the
Tennessee Supreme Court’s denial of his Rule 11 application or notice of whether his attorney
intended to continue to represent him post-conviction. From the record, we determine that on June
4, 1998, the petitioner’s attorney sent a letter to the petitioner informing him that his Rule 11
application had been filed. However, the record does not indicate whether the petitioner’s attorney
communicated further with the petitioner. Instead, the record indicates that the petitioner wrote his
attorney on April 28, 2000, asking for information concerning the status of his case. In the letter,
the petitioner wrote, "[I]t is to my knowledge, that my appeal to the Supreme Court and the Post


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Conviction that you’re suppose to file, has been going on for about two (2) years. I haven’t as of yet,
received any type of notice of what’s the outcome on my case nor any progress that you have been
making." The record also shows that the petitioner’s attorney did not withdraw from representation
until October 3, 2002, well after the petitioner filed his untimely petition for post-conviction relief.

        In order to ascertain whether the misconduct of the petitioner’s attorney constitutes a due
process violation that would toll the statute of limitations, certain facts must be determined. In
Williams, our supreme court surmised that "[i]f [the petitioner] was under the impression that a Rule
11 application was pending during this time, then he was precluded from acting pro se to pursue post
conviction relief while presumably being represented by counsel." Id. Our supreme court then stated
that the question to consider "is whether the [petitioner] in this case was, in fact, misled to believe
that counsel was continuing the appeals process." Id. In this case, it is necessary to determine
whether counsel’s failure to inform the petitioner of the denial of the Rule 11 application caused the
petitioner to erroneously believe that his counsel was continuing representation. In addition, it is
necessary to determine why counsel did not file for post-conviction relief, or, in the alternative,
inform the petitioner of his intent to withdraw from representation. Finally, the questions of how
and when the petitioner received notice of the denial of his Rule 11 application need to be
determined. Therefore, we remand to the post-conviction court for an evidentiary hearing to
determine (1) whether due process tolled the statute of limitations so as to afford the petitioner a
reasonable opportunity after the expiration of the limitations period to present his claim in a
meaningful time and manner; and if so, (2) whether the petitioner’s filing of his post-conviction
petition on January 15, 2002, was within the reasonable opportunity afforded by the due process
tolling. See Williams, 44 S.W.3d at 471. If the post-conviction court determines that due process
considerations tolled the statute of limitations and the petitioner filed his petition within a reasonable
time after the expiration of the statute of limitations, then the court shall grant the petitioner the
opportunity to seek a post-conviction hearing on the merits. If the post-conviction court determines
otherwise, the court shall dismiss the petition as untimely.

                                           CONCLUSION

        We reverse the judgment of the post-conviction court and remand for an evidentiary hearing.



                                                         ___________________________________
                                                         J.C. McLIN, JUDGE




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