                  IN THE SUPREME COURT OF TENNESSEE
                              AT JACKSON
                           October 2, 2012 Session in Nashville

                ARTIS WHITEHEAD v. STATE OF TENNESSEE

               Appeal by Permission from the Court of Criminal Appeals
                          Criminal Court for Shelby County
                    No. 03-04835     James C. Beasley, Jr., Judge


                 No. W2010-00784-SC-R11-PC - Filed March 21, 2013


Tennessee prisoners whose convictions and sentences are upheld on appeal have one year to
file a petition for post-conviction relief to challenge their convictions and sentences. This
appeal involves the narrow circumstances in which fundamental fairness demands the tolling
of this deadline. A prisoner filed his petition for post-conviction relief after the statutory
deadline had passed because his former attorney provided him the wrong deadline date and
failed to give the prisoner his legal files until after the actual deadline had passed. Following
a hearing, the Criminal Court for Shelby County dismissed the petition as untimely. The
Court of Criminal Appeals affirmed. Whitehead v. State, No. W2010-00784-CCA-R3-PC,
2011 WL 3912856 (Tenn. Crim. App. Sept. 7, 2011). We granted the prisoner’s application
for permission to appeal. We find that the facts of this case reflect that the prisoner was
effectively abandoned by his appellate attorney after his petition for writ of certiorari was
filed in the United States Supreme Court. This abandonment impeded the prisoner’s
otherwise diligent efforts to file a timely post-conviction petition. Therefore, the statute of
limitations should be tolled. We reverse the judgment of the Court of Criminal Appeals, and
remand the prisoner’s case to the trial court so the prisoner may pursue his petition for post-
conviction relief.

   Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
                                Appeals Reversed

W ILLIAM C. K OCH, J R., J., delivered the opinion of the Court, in which G ARY R. W ADE, C.J.,
C ORNELIA A. C LARK, and S HARON G. L EE , JJ., joined. J ANICE M. H OLDER, J., filed a
dissenting opinion.

Sean G. Hord, Memphis, Tennessee, for the appellant, Artis Whitehead.
Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;
Aaron E. Winter, and Cameron L. Hyder, Assistant Attorneys General; William L. Gibbons,
District Attorney General; and Anita Spinetta, Assistant District Attorney General, for the
appellee, State of Tennessee.

                                         OPINION

                                              I.

        On May 9, 2002, Artis Whitehead attempted to rob the safe at B.B. King’s Restaurant
and Blues Club in Memphis. He did not succeed. Before he fled the scene, however, he
detained five persons in the restaurant’s basement office where the safe was located, robbed
four of them, and seriously injured two of them. In November 2003, a Shelby County jury
convicted Mr. Whitehead of five counts of especially aggravated kidnapping, two counts of
aggravated assault, two counts of especially aggravated robbery, two counts of aggravated
robbery, and one count of attempted robbery. The trial court sentenced Mr. Whitehead to
consecutive sentences totaling 249 years. These convictions and sentences were upheld on
direct appeal. State v. Whitehead, No. W2004-03058-CCA-R3-CD, 2006 WL 1273749, at
*1 (Tenn. Crim. App. May 10, 2006), perm app. denied (Tenn. Oct. 16, 2006), cert. denied,
549 U.S. 1269 (2007).

        Following his conviction, Mr. Whitehead retained new counsel to represent him
during sentencing and on appeal. As far as this record shows, Mr. Whitehead seems to have
lost contact with his appellate lawyer while his case was pending before the United States
Supreme Court. Even though the United States Supreme Court denied Mr. Whitehead’s
petition for writ of certiorari on March 5, 2007, his appellate lawyer did not communicate
with him about the case until she sent Mr. Whitehead a letter dated August 3, 2007. This
letter stated:

              Dear Mr. Whitehead,

                      I hope that you are doing well and that your family is well
              also. In reviewing our appellate files, I noticed that we have not
              received direction from you regarding your file. Your file
              cannot be provided to anyone other than you unless we have
              your written permission. Therefore, although we are closing
              your file because we no longer represent you, when you advise
              this office in writing as to whom your file can be forwarded we
              will be happy to do so.



                                              -2-
                       I also would like to remind you that the denial by the
              United States Supreme Court of your Writ of Certiorari means
              that if you intend to file a post conviction petition, this must be
              done by March 5, 2008. It has been a pleasure assisting you
              these past years, Mr. Whitehead[,] and we wish you the best.

        This seemingly innocuous letter was actually filled with mischief for Mr. Whitehead
because the March 5, 2008 deadline for filing a petition for post-conviction relief stated in
the letter was incorrect. Under Tenn. Code Ann. § 40-30-102(a) (2012), a petition for post-
conviction relief 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 “final action of the highest state appellate court” occurred on October 16, 2006, when
this Court denied Mr. Whitehead’s appeal. Thus, the actual deadline for filing a petition for
post-conviction relief was October 16, 2007. Mr. Whitehead’s appellate lawyer erroneously
calculated the deadline from the date the United States Supreme Court denied his petition for
writ of certiorari.

        On August 20, 2007, Mr. Whitehead replied to his appellate lawyer in a handwritten
letter. He asked her to ship his files to him at the Hardeman County Correctional Facility.
The lawyer received the letter but did not send Mr. Whitehead the files. On September 21,
2007, Mr. Whitehead sent his appellate lawyer a second letter, “respectfully requesting” that
she send him his case files so he could “perfect [his] Petition for Post-Conviction Relief.”
Again, the lawyer received the letter but did not immediately send the files to Mr. Whitehead.
At a later hearing, Mr. Whitehead testified that his files did not arrive until “the last week or
so of October” or perhaps “the beginning of November.” By this time, unbeknownst to Mr.
Whitehead, the deadline for filing his post-conviction petition had already passed.

       As soon as he received his files, Mr. Whitehead began preparing his petition for post-
conviction relief. On March 3, 2008, he submitted his 32-page petition to prison authorities
for mailing. The petition was filed on March 19, 2008. One week later, on March 26, 2008,
the Criminal Court for Shelby County summarily dismissed the petition as untimely. Even
though Mr. Whitehead filed his petition prior to the erroneous deadline provided by his
appellate lawyer, his petition was actually filed 138 days late.




                                               -3-
       Mr. Whitehead, still representing himself, appealed the dismissal of his petition. The
Court of Criminal Appeals determined that

                while the petition was untimely, further development of the
                record is necessary to determine whether counsel’s advice
                regarding the limitations period constituted “misrepresentation,
                either attributable to deception or other misconduct,” see
                Williams v. State, 44 S.W.3d 464, 469 (Tenn. 2001), that
                necessitated due process-based tolling of the limitations period.

Whitehead v. State, No. W2008-00815-CCA-R3-PC, 2009 WL 723849, at *1 (Tenn. Crim.
App. Mar. 19, 2009), app. dismissed (Tenn. Aug. 31, 2009). On remand, the post-conviction
court appointed counsel to represent Mr. Whitehead.

        The post-conviction court held an evidentiary hearing on March 5, 2010. The lawyer
who represented Mr. Whitehead during his sentencing and on his direct appeal testified first.
She was unable to explain how she had miscalculated the deadline for filing Mr. Whitehead’s
petition for post-conviction relief. “[C]learly that’s my handwriting,” she said, “and the
language in the letter is mine. But why did I say that? I wish I knew so I would never, ever,
ever get close to making that kind of a mistake with somebody’s life again.” The lawyer also
testified that she did not intend to mislead Mr. Whitehead by giving him the wrong deadline
date and that the miscalculation was an accident.

       Although the lawyer could not specifically remember talking to Mr. Whitehead about
his post-conviction rights, she testified that her standard practice was to explain post-
conviction procedures to her clients. She testified that she generally informed her clients
about the timetable for filing for post-conviction relief and that she generally told them that
her firm would not be filing a post-conviction petition due to the apparent conflict of
interest.1


        1
        See Frazier v. State, 303 S.W.3d 674, 682 (Tenn. 2010) (“[A]n attorney in a post-conviction
proceeding who has represented the same petitioner on direct appeal has a clear conflict of interest.”).
Nevertheless, the American Bar Association encourages criminal defense attorneys to provide a bit of parting
post-conviction advice to their clients.

        After a conviction is affirmed on appeal, appellate counsel should determine whether there
        is any ground for relief under other post-conviction remedies. If there is a reasonable
        prospect of a favorable result, counsel should explain to the defendant the advantages and
        disadvantages of taking such action. Appellate counsel is not obligated to represent the
        defendant in a post-conviction proceeding unless counsel has agreed to do so. In other
                                                                                             (continued...)

                                                    -4-
        The lawyer’s testimony reflected her understanding that she was not representing Mr.
Whitehead when she sent him the August 3, 2007 letter containing the wrong deadline. She
said that when she wrote the letter, “there probably wasn’t a contractual agreement at that
point in time because we had only been retained for appeal and the [direct] appeal was over.”
She agreed that she “technically” stopped representing Mr. Whitehead on March 5, 2007,
when the United States Supreme Court denied Mr. Whitehead’s petition for certiorari.

       Mr. Whitehead testified that he did not recall any conversation with his lawyers about
post-conviction relief. When he received his appellate lawyer’s August 3, 2007 letter, he
went to the prison’s law library to “find out what [post-conviction] was.” Although Mr.
Whitehead “kept reading and reading and reading and reading and asking a lot of questions”
about post-conviction relief, he testified that he trusted the erroneous deadline in the
attorney’s letter because “she was my lawyer.” Although he had prior criminal convictions,
Mr. Whitehead testified that he had never filed for post-conviction relief before.

        The post-conviction court ruled from the bench at the close of the proof. The court
decided that there was no longer an attorney-client relationship between Mr. Whitehead and
his former lawyer as of March 5, 2007, when the United States Supreme Court denied the
petition for writ of certiorari. The court also decided that Mr. Whitehead was not entitled to
relief from the post-conviction statute of limitations under Williams v. State, 44 S.W.3d 464
(Tenn. 2001) for two reasons. First, the court concluded that the incorrect filing deadline Mr.
Whitehead received from his former lawyer was not the result of “intentional misconduct.”
Second, the court noted that Mr. Whitehead was aware by the time he received the August
3, 2007 letter that he was no longer represented and that he could have filed a petition for
post-conviction relief on his own before the actual October 16, 2007 deadline. Even though
the post-conviction court found that Mr. Whitehead was not entitled to relief from the filing
deadline, the court “encourage[d]” Mr. Whitehead to appeal because the case involved “some
law that needs to be looked at.”

       Mr. Whitehead appealed again. The Court of Criminal Appeals, relying on our
decision in Williams v. State, found that accidental attorney error is not a circumstance
beyond the petitioner’s control that would trigger due process tolling. The appellate court
also pointed out that “[t]he record does not show anything that would have impeded the

       1
        (...continued)
       respects, the responsibility of a lawyer in a post-conviction proceeding should be guided
       generally by the standards governing the conduct of lawyers in criminal cases.

ABA Criminal Justice Standard 4-8.5, available at http://www.americanbar.org/publications/criminal_
justice_section_archive/crimjust_standards_dfunc_blkold.html. When a lawyer elects to provide such
advice, of course, the lawyer should strive to do no harm.

                                                 -5-
petitioner’s ability to begin preparing for post-conviction proceedings before he received the
August 3 letter from counsel, i.e. nothing prevented him from researching the law or
requesting that counsel send him his file.” Whitehead v. State, No. W2010-00784-CCA-R3-
PC, 2011 WL 3912856, at *5 (Tenn. Crim. App. Sept. 7, 2011). We granted Mr.
Whitehead’s application for permission to appeal.

                                              II.

       Appellate courts review a post-conviction court’s conclusions of law, decisions
involving mixed questions of law and fact, and its application of law to its factual findings
de novo without a presumption of correctness. Felts v. State, 354 S.W.3d 266, 276 (Tenn.
2011); Calvert v. State, 342 S.W.3d 477, 485 (Tenn. 2011). Issues regarding whether due
process required the tolling of the post-conviction statute of limitations are mixed questions
of law and fact and are, therefore, subject to de novo review. Smith v. State, 357 S.W.3d 322,
355 (Tenn. 2011) (quoting Harris v. State, 301 S.W.3d 141, 145 (Tenn. 2010)).

        However, appellate courts are bound by the post-conviction court’s underlying
findings of fact unless the evidence preponderates against them. Smith v. State, 357 S.W.3d
at 336; Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009). Accordingly, appellate courts
are not free to re-weigh or re-evaluate the evidence, nor are they free to substitute their own
inferences for those drawn by the post-conviction court. State v. Honeycutt, 54 S.W.3d 762,
766 (Tenn. 2001). As a general matter, appellate courts must defer to a post-conviction
court’s findings with regard to witness credibility, the weight and value of witness testimony,
and the resolution of factual issues presented by the evidence. Momon v. State, 18 S.W.3d
152, 156 (Tenn. 1999).

       In this case, the post-conviction court found (1) that the contractual relationship
between Mr. Whitehead and his appellate lawyer ended on March 5, 2007; (2) that Mr.
Whitehead knew that his appellate lawyer was no longer his attorney after that point; and (3)
that the appellate lawyer’s error in calculating the filing deadline was negligent, not
intentional. These factual findings are entitled to deference. See Smith v. State, 357 S.W.3d
at 335-36.

        However, the post-conviction court’s ultimate conclusion – that due process did not
require tolling the statute of limitations under these circumstances – is a question of law. In
reviewing that legal conclusion de novo, we find it necessary to add another important fact
that the courts below failed to emphasize. The incorrect deadline in the August 3, 2007 letter
was not the only thing that undermined Mr. Whitehead’s ability to file a timely petition for
post-conviction relief. Even if Mr. Whitehead had been provided the correct deadline, his
ability to prepare and file a timely petition for post-conviction relief was further impeded by

                                              -6-
his appellate lawyer’s failure to send his case file to him until after the deadline had actually
passed.

                                                     III.

        The United States Constitution does not require states to provide post-conviction relief
to prisoners who have exhausted their direct appeals. Pennsylvania v. Finley, 481 U.S. 551,
556-57 (1987). However, the Tennessee General Assembly has appropriately provided
prisoners statutory post-conviction remedies since 1967.2 The General Assembly reformed
these post-conviction procedures when it enacted the Post-Conviction Procedure Act of
1995.3

       Currently, Tenn. Code Ann. § 40-30-103 directs Tennessee’s courts to grant prisoners
post-conviction relief when their “conviction or sentence is void or voidable because of the
abridgement of any right guaranteed by the Constitution of Tennessee or the Constitution of
the United States.” As previously noted, Tenn. Code Ann. § 40-30-102(a) provides that a
petition for post-conviction relief 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 taken4 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.5

(footnotes added)



        2
        See Act of May 25, 1967, ch. 310, 1967 Tenn. Pub. Acts 801 (codified as amended at Tenn. Code
Ann. §§ 40-30-101 to -122 (2012)); see also Gary L. Anderson, Post-Conviction Relief in Tennessee –
Fourteen Years of Judicial Administration Under the Postconviction Procedure Act, 48 Tenn. L. Rev. 605,
608 (1981).
        3
            See Act of April 26, 1995, ch. 207, 1995 Tenn. Pub. Acts 305.
        4
         Mr. Whitehead suggests Tennessee should adopt a rule similar to the one found in 725 Ill. Comp.
Stat. Ann. 5/122-1(c) (West 2010), which extends the deadline for filing for post-conviction relief when the
prisoner also petitions for a writ of certiorari from the United States Supreme Court, as Mr. Whitehead did,
and allows for tolling based on non-culpable negligence. See People v. Rissley, 795 N.E.2d 174, 182-84 (Ill.
2003). Post-conviction relief is a statutory remedy. Adopting such a rule in Tennessee would be within the
General Assembly’s bailiwick, not ours.
        5
         Prior to May 10, 1995, the period for filing a petition for post-conviction relief was three years. See
Smith v. State, 357 S.W.3d at 355.

                                                      -7-
In addition, Tenn. Code Ann. § 40-30-102(b) states that “[n]o court shall have jurisdiction
to consider a petition [for post-conviction relief] filed after the expiration of the limitations
period” except in one of three narrow circumstances. These three exceptions include: (1)
claims based on a newly recognized constitutional right that applies retroactively, and that
are filed within one year of the ruling recognizing that right; (2) claims based on new
scientific evidence that proves that the prisoner is innocent of the offense; and (3) claims
seeking relief from a sentence that was enhanced because of a previous conviction that was
subsequently held to be invalid.6 Mr. Whitehead does not claim that any of these three
statutory exceptional circumstances apply to his case.

        In 1996, the General Assembly again amended Tenn. Code Ann. § 40-30-102(a) to
ensure that the courts would construe the statute of limitations for post-conviction petitions
strictly.7 Thus, Tenn. Code Ann. § 40-30-102(a) currently provides, in part:

                   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 of the right to file a
                   petition for post-conviction relief or motion to reopen
                   established by this chapter, and the one-year limitations period
                   is an element of the right to file the action and is a condition
                   upon its exercise.

       On its face, the plain language of Tenn. Code Ann. § 40-30-102(a) would bar
Tennessee courts from considering any petition for post-conviction relief that was untimely
for any reason other than those listed in Tenn. Code Ann. § 40-30-102(b). However, the
General Assembly may not enact laws that conflict with the Constitution of Tennessee or the
Constitution of the United States. Both this Court and the United States Supreme Court have
recognized that fundamental due process8 requires that, once the legislature provides
prisoners with a method for obtaining post-conviction relief, prisoners must be afforded an


        6
         Tenn. Code Ann. § 40-30-102(c) also provides that previously denied petitions for post-conviction
relief may be reopened if one of the three circumstances is found to exist.
        7
            See Act of Apr. 25, 1996, ch. 995, 1996 Tenn. Pub. Acts 753.
        8
          See U.S. Const. amend. XIV, § 1 (“No State shall make or enforce any law which shall . . . deprive
any person of life, liberty, or property, without due process of law . . . .”); Tenn. Const. art. I, § 8 (“[N]o man
shall be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or
in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his peers or the
law of the land.”); U.S. Const. amend. V (“No person shall be . . . deprived of life, liberty, or property,
without due process of law . . . .”).

                                                       -8-
opportunity to seek this relief “at a meaningful time and in a meaningful manner.” Burford
v. State, 845 S.W.2d 204, 208 (Tenn. 1992) (citing Logan v. Zimmerman Brush Co., 455 U.S.
422, 437 (1982)).

       With regard to due process, this Court has recognized that

              “Due process is flexible and calls for such procedural
              protections as the particular situation demands.” The flexible
              nature of procedural due process requires an imprecise
              definition because due process embodies the concept of
              fundamental fairness.        In determining what procedural
              protections a particular situation demands, three factors must be
              considered: (1) the private interest at stake; (2) the risk of
              erroneous deprivation of the interest through 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 v. State, 23 S.W.3d 272, 277 (Tenn. 2000) (citations omitted); cf. United States v.
Lovasco, 431 U.S. 783, 790 (1997) (explaining that due process embodies “fundamental
conceptions of justice” and “the community’s sense of fair play and decency” (quoting
Rochin v. California, 342 U.S. 165, 173 (1952))).

         In the post-conviction context, this Court has explained that the private interest at
stake is “a prisoner’s opportunity to attack his conviction and incarceration on the grounds
that he was deprived of a constitutional right during the conviction process.” The
government’s interest is “the interest in preventing the litigation of stale and groundless
claims,” coupled with concerns about “the costs to the State of continually allowing prisoners
to file usually fruitless post-conviction petitions.” Burford v. State, 845 S.W.2d at 207. The
remainder of the analysis focuses on “the risk of erroneous deprivation” of the prisoner’s
interest, and safeguards that may be necessary to protect that interest.

        To date, this Court has identified three circumstances in which due process requires
tolling the post-conviction statute of limitations. The first circumstance involves claims for
relief that arise after the statute of limitations has expired. In Burford v. State, this Court
established that, although the statute of limitations in the Post-Conviction Procedure Act was
“not unconstitutional on its face,” under certain circumstances, the statute of limitations
could deny prisoners “due process under the state and federal constitutions.” Burford v.

                                              -9-
State, 845 S.W.2d at 205. In Burford, the prisoner “found himself caught in a procedural
trap.” Burford v. State, 845 S.W.2d at 208. The prisoner’s sentence was lengthened on
account of several prior convictions that were later declared invalid. Because these
convictions had not been overturned until after the statute of limitations had expired, the
statutory filing deadline would have unfairly denied the prisoner relief. Burford v. State, 845
S.W.2d at 210.

        In Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995), we revisited Burford and
established a three-step test for determining whether a petitioner’s grounds for relief are
“later-arising,” and whether those later-arising claims warrant tolling the statute of
limitations. The 1995 version of the Post-Conviction Procedure Act now contains explicit
exceptions to the one-year filing deadline that apply to some, but not all, forms of later-
arising claims. Tenn. Code Ann. §§ 40-30-117(a)(1)-(3), -102(b)(1)-(3).

        The second due process basis for tolling the statute of limitations involves prisoners
whose mental incompetence prevents them from complying with the statute’s deadline. In
Seals v. State, we held that “a petitioner who is mentally incompetent is denied an
opportunity to raise a claim in a meaningful manner unless the statute of limitations is tolled
during the period of mental incompetence.” Seals v. State, 23 S.W.3d at 279; see also Reid
v. State, ___ S.W.3d ___, 2013 WL 265981 at *9 (Tenn. Jan. 24, 2013); State v. Nix, 40
S.W.3d 459, 462 (Tenn. 2001).

        The third exception is the one at issue in this case. In Williams v. State, 44 S.W.3d
464 (Tenn. 2001), we recognized that attorney misconduct might also necessitate tolling the
statute of limitations. The prisoner in Williams v. State had appointed counsel who appealed
his case to the Court of Criminal Appeals. After the Court of Criminal Appeals upheld Mr.
Williams’s murder conviction and life sentence, Mr. Williams’s counsel withdrew.
However, Mr. Williams’s counsel did not file a timely Tenn. Sup. Ct. R. 14 motion
requesting permission from this Court to withdraw. Mr. Williams also alleged that his
counsel did not tell him that he was withdrawing. In fact, Mr. Williams claimed that his
counsel led him to believe that he was appealing his case to this Court. While Mr. Williams
waited for his counsel to act, the deadlines for filing a Tenn. R. App. P. 11 appeal and for
filing a petition for post-conviction relief both passed. Williams v. State, 44 S.W.3d at 470-
71.

       We held that if Mr. Williams “was, in fact, misled to believe that counsel was
continuing the appeals process,” this would require tolling the statute of limitations. Mr.
Williams would have found himself trapped because a prisoner is forbidden from seeking
post-conviction relief while his counsel pursues direct review under Tenn. R. App. P. 11.
Williams v. State, 44 S.W.3d at 471 (citing Gibson v. State, 7 S.W.3d 47, 49 (Tenn. Crim.

                                             -10-
App. 1998); Laney v. State, 826 S.W.2d 117, 118 (Tenn. 1992); State v. Burkhart, 541
S.W.2d 365, 371 (Tenn. 1976)). Like the “procedural trap” in Burford v. State and the
petitioner’s mental incompetence in Seals v. State, “an attorney’s misrepresentation, either
attributable to deception or other misconduct, would also be beyond a defendant’s control.”
Williams v. State, 44 S.W.3d at 469. We found that “further development of the record” was
needed and affirmed the Court of Criminal Appeals’ decision to remand the case for an
evidentiary hearing. Williams v. State, 44 S.W.3d at 467.9

        In his dissent in Williams v. State, Justice Drowota, joined by Justice Holder, made
three points. First, he observed that the Court’s recognition of due process tolling “wholly
disregard[ed]” the “clearly expressed legislative intent” that the statute of limitations be
strictly construed. Williams v. State, 44 S.W.3d at 474, 476 (Drowota, J., dissenting).
Second, he stated that there was no meaningful distinction between “mere attorney
negligence” and “alleged [attorney] misconduct.” Williams v. State, 44 S.W.3d at 476
(Drowota, J., dissenting) (alteration in original). Third, he observed that the conduct of Mr.
Williams’s trial attorney was “textbook negligence” and that the “effect of the majority
opinion” would remain the same whether the attorney’s alleged deficiency was “intentional,
reckless, or negligent.” Williams v. State, 44 S.W.3d at 477 (Drowota, J., dissenting). In
response to these concerns, the majority included a footnote, stating:

                Contrary to the dissent’s assertion, we are not holding that a
                petitioner may be excused from filing an untimely
                post-conviction petition as a result of counsel’s negligence.
                Instead, the focus here is only upon trial and appellate counsel’s
                alleged misrepresentation in failing to properly withdraw from
                representation and in failing to notify the petitioner that no
                application for permission to appeal would be filed in this Court.

Williams v. State, 44 S.W.3d at 468 n.7.10


        9
          Following an evidentiary hearing, the post-conviction court found that Mr. Williams had not been
misled by his trial counsel regarding the filing of the Court of Criminal Appeals’ opinion and denied the
petition for post-conviction relief. The Court of Criminal Appeals affirmed this decision. Williams v. State,
No. E2004-01267-CCA-R3-PC, 2005 WL 2148626 (Tenn. Crim. App. Sept. 7, 2005), perm. app. denied
(Tenn. Dec. 19, 2005).
        10
         The prisoner in Stokes v. State faced a situation similar to that of Mr. Williams. However, the
attorney who failed to withdraw or file an appeal in Stokes v. State was the prisoner’s post-
conviction counsel. Because “there is no right to effective assistance of counsel in post-conviction
proceedings,” this Court unanimously held that due process did not require tolling the statute of limitations.
                                                                                                (continued...)

                                                    -11-
       We again invoked the distinction between attorney negligence and attorney
misconduct in Smith v. State, 357 S.W.3d at 358. Mr. Smith petitioned for relief almost
twelve years after his conviction became final and alleged that his attorney had failed to
inform him of the availability of post-conviction relief. The same attorney was
simultaneously representing Mr. Smith in another case that was still pending on direct appeal.
Smith v. State, 357 S.W.3d at 355, 359.

        In affirming the lower courts’ conclusions that Mr. Smith was not entitled to due
process tolling, we emphasized that Mr. Smith, unlike Mr. Williams, had not claimed “any
willful misrepresentation on the part of his trial or appellate counsel” and that there was “no
evidence . . . that [Mr. Smith] was misled regarding the time to file a post-conviction
petition,” especially when Mr. Smith had previously filed several post-conviction petitions
in other unrelated cases. Smith v. State, 357 S.W.3d at 359.

       Significantly, we stated in Smith v. State that “[i]n every case in which we have held
the statute of limitations is tolled, the pervasive theme is that circumstances beyond a
petitioner’s control prevented the petitioner from filing a petition for post-conviction relief
within the statute of limitations.” Smith v. State, 357 S.W.3d at 358. Because Mr. Smith did
not argue that he was unaware of the status of his case or that he was misled about the filing
deadline, we could not find that he was denied a “reasonable opportunity” to have his claims
heard. Smith v. State, 357 S.W.3d at 359 (quoting Burford v. State, 845 S.W.2d at 208).

        On at least three occasions, the Court of Criminal Appeals has relied on Williams v.
State to toll the statute of limitations for a post-conviction petitioner.11 Mr. Whitehead relies
heavily on these cases. On other occasions, however, the Court of Criminal Appeals has
relied on Williams v. State to support its conclusion that a prisoner’s failure to meet the post-
conviction filing deadline did not warrant due process tolling.12 We cite the opinions simply


        10
          (...continued)
Stokes v. State, 146 S.W.3d 56, 57, 60-61 (Tenn. 2004); accord Pennsylvania v. Finley, 481 U.S. at 554-55,
559; House v. State, 911 S.W.2d 705, 712 (Tenn. 1995).
        11
          See Nunn v. State, No. M2007-00974-CCA-R3-PC, 2008 WL 3843906, at *9-11 (Tenn. Crim. App.
Aug. 18, 2008) (No Tenn. R. App. P. 11 application filed); Alderson v. State, No. M2010-00896-CCA-R3-
PC, 2010 WL 4888137, at *3 (Tenn. Crim. App. Nov. 30, 2010) (No Tenn. R. App. P. 11 application filed);
Oliver v. State, No. W2009-02113-CCA-R3-PC, 2011 WL 4432884, at *1-5 (Tenn. Crim. App. Sept. 23,
2011) (No Tenn. R. App. P. 11 application filed).
        12
          See, e.g., Jacobs v. State, No. M2009-02265-CCA-R3-PC, 2010 WL 3582493, at *3 (Tenn. Crim.
App. Sept. 15, 2010), perm. app. denied (Tenn. Jan. 20, 2011) (declining to toll the statute of limitations for
attorney abandonment because “a petitioner’s personal ignorance of post-conviction procedures, ‘even when
                                                                                                 (continued...)

                                                     -12-
as examples. None present the same factual scenario as Mr. Whitehead’s case (i.e., a
prisoner being misled by his former attorney who also retained possession of the prisoner’s
case files through the duration of the limitations period). We have, however, found cases
from other jurisdictions that have considered a prisoner’s similar claims under the analogous
doctrine of “equitable tolling.”

                                                     IV.

       Tennessee’s doctrine of due process tolling in the context of petitions for post-
conviction relief is essentially the same as the doctrine of equitable tolling recognized in the
federal courts and the courts of other states. Like due process tolling, “[e]quitable tolling is
a remedy that must be used sparingly, that is, in extreme cases where failure to invoke the
principles of equity would lead to unacceptably unjust outcomes.” Downs v. McNeil, 520
F.3d 1311, 1318 (11th Cir. 2008) (internal citations omitted). Equitable tolling is likewise
triggered when circumstances beyond a prisoner’s control prevent the prisoner from filing
his or her petition on time. Compare Smith v. State, 357 S.W.3d at 358, with Holland v.
Florida, 560 U.S. ___, ___, 130 S. Ct. 2549, 2562 (2010). Under both doctrines, while
attorney error generally does not warrant tolling post-conviction filing deadlines, some
attorney errors are so severe that they obstruct a prisoner’s diligent attempts to file on time.
See Holland v. Florida, 130 S. Ct. at 2563-64; Williams v. State, 44 S.W.3d at 469.

        While we have recognized the doctrine of due process tolling with regard to post-
conviction petitions, we have consistently declined to recognize the doctrine of equitable
tolling in civil proceedings. See, e.g., Redwing v. Catholic Bishop for Diocese of Memphis,
363 S.W.3d 436, 460 (Tenn. 2012). Even though post-conviction proceedings are deemed
to be “civil” proceedings for some purposes,13 they necessarily implicate the liberty interests
of an incarcerated criminal defendant. As such, post-conviction proceedings, unlike other
ordinary civil proceedings, warrant heightened due process protections. State v. Nix, 40
S.W.3d at 462-63 (noting the combination of civil and criminal procedural elements in tolling


        12
           (...continued)
alleged to stem from an attorney’s negligent failure to render advice to the petitioner,’” does not toll the
statute); Williams v. State, No. M2007-00386-CCA-R3-PC, 2008 WL 544636, at *2 (Tenn. Crim. App. Feb.
21, 2008), perm. app. denied (Tenn. June 23, 2008) (declining to toll the statute of limitations for reasons
of attorney abandonment when the petitioner did not allege “that counsel ever misrepresented anything to
him”); Jarrett v. State, No. W2006-02033-CCA-R3-PC, 2007 WL 2120182, at*2 (Tenn. Crim. App. July 24,
2007), perm. app. denied (Tenn. Oct. 22, 2007) (declining to toll the statute of limitations when a petitioner
missed the post-conviction deadline due to attorney abandonment because the petitioner “has not alleged that
his attorney misrepresented anything to him”).
        13
             See Carter v. Bell, 279 S.W.3d 560, 565 (Tenn. 2009).

                                                    -13-
the Post-Conviction Procedure Act’s statute of limitations); cf. Watkins v. State, 903 S.W.2d
302, 305 (Tenn. 1995) (describing post-conviction proceedings as “a hybrid affair”
combining elements of criminal law and civil procedure); State v. Scales, 767 S.W.2d 157,
157 (Tenn. 1989) (quoting with approval now-Chief Justice Wade’s observation that
“[l]abels of civil and criminal have little application when constitutional rights hang in the
balance”).

       Although our doctrine of due process tolling derives from the state and federal
constitutions rather than the common law, we are unable to discern any substantive
difference between our application of due process tolling in the context of post-conviction
petitions and the federal courts’ application of the doctrine of equitable tolling for habeas
corpus petitions under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Most other states’ versions of equitable tolling in the context of petitions for
post-conviction relief also appear to be identical in substance.14 Accordingly, we will
consider how other jurisdictions have dealt with post-conviction scenarios similar to Mr.
Whitehead’s.

       The United States Supreme Court recently solidified the federal courts’ doctrine of
equitable tolling for untimely habeas corpus petitions in Holland v. Florida. Mr. Holland,
a death row prisoner, filed a pro se federal habeas petition five weeks after the AEDPA’s
one-year deadline. He argued that the deadline should have been tolled because his court-
appointed attorney failed to file a petition, despite Mr. Holland’s repeated requests for him
to do so. The attorney had also failed to inform Mr. Holland that the Florida Supreme Court
had decided his case, despite Mr. Holland’s requests for that information, and had even
miscalculated the date upon which Mr. Holland’s habeas petition would be due. Holland v.
Florida, 130 S. Ct. at 2554-59, 2564.

       The district court dismissed Mr. Holland’s petition, and the United States Court of
Appeals for the Eleventh Circuit affirmed. Holland v. Florida, 130 S. Ct. at 2559-60. The
federal appeals panel reasoned that an attorney’s merely negligent behavior can never
constitute an “extraordinary circumstance,” such that it would warrant equitable tolling.
“[I]n our view,” the court said, “no allegation of lawyer negligence or of failure to meet a
lawyer’s standard of care – in the absence of an allegation and proof of bad faith, dishonesty,
divided loyalty, mental impairment or so forth on the lawyer’s part – can rise to the level of
egregious attorney misconduct” that would trigger equitable tolling. Holland v. Florida, 539
F.3d 1334, 1339 (11th Cir. 2008) (per curiam), rev’d, 560 U.S. ___, ___, 130 S. Ct. 2549
(2010).


        14
          In fact, two members of this Court have described due process tolling under the Burford line of
cases as “equitable tolling.” Harris v. State, 301 S.W.3d at 148-49, 153 (Koch, J., concurring in part).

                                                  -14-
        The United States Supreme Court found the Eleventh Circuit’s tolling standard “too
rigid,” and reversed. Holland v. Florida, 130 S. Ct. at 2563. The Court said it had
“previously made clear” that a petitioner is entitled to equitable tolling upon a showing “‘(1)
that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance
stood in his way’ and prevented timely filing.” Holland v. Florida, 130 S. Ct. at 2562
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). The Court determined that,
contrary to the intermediate appellate court’s holding, “at least sometimes, professional
misconduct that fails to meet the Eleventh Circuit’s standard could nonetheless amount to
egregious behavior and create an extraordinary circumstance that warrants equitable tolling.”
Holland v. Florida, 130 S. Ct. at 2563.

        The Court cited examples from “several lower courts,” which “specifically held that
unprofessional attorney conduct may, in certain circumstances, prove ‘egregious’ and can be
‘extraordinary.’” Holland v. Florida, 130 S. Ct. at 2563-64. One of these was Calderon v.
United States District Court, 128 F.3d 1283, 1289 (9th Cir. 1997), overruled on other
grounds by Calderon v. United States District Court, 163 F.3d 530, 540 (9th Cir. 1998) (en
banc). In Calderon v. United States District Court, the petitioner’s lead counsel “withdrew
after accepting employment in another state,” and the work product the attorney left behind
was “not useable by replacement counsel – a turn of events over which [the petitioner] had
no control.” Calderon v. United States Dist. Court, 128 F.3d at 1289. A similar result was
reached in Nara v. Frank, 264 F.3d 310, 320 (3d Cir. 2001), in which a petitioner’s lawyer
“effectively abandoned him” and in “multiple ways” prevented him from filing his petition
on time. Among other shortcomings, Mr. Nara’s attorney failed to inform him when the state
supreme court denied his appeal, led Mr. Nara to believe that she was going to file a habeas
petition on his behalf, and told him there were no time constraints in filing his petition. Nara
v. Frank, 264 F.3d at 320.

        A third example cited by the United States Supreme Court in Holland v. Florida was
Baldayaque v. United States, 338 F.3d 145 (2d Cir. 2003). By failing to file a petition
despite being directed to do so, Mr. Baldayaque’s attorney “violated a basic duty of an
attorney to his client,” namely the “duty of loyalty,” which “encompasses an obligation to
defer to the client’s wishes on major litigation decisions.” Baldayaque v. United States, 338
F.3d at 152 (quoting In re “Agent Orange” Prod. Liab. Litig., 800 F.2d 14, 17 (2d Cir.
1986)). This omission, combined with the attorney’s failure to contact Mr. Baldayaque or
research his case, fell so far outside the range of behavior a client should reasonably expect
from an attorney, it constituted an extraordinary circumstance. Baldayaque v. United States,
338 F.3d at 152-53.

       The Court also cited Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003), which is
particularly relevant to Mr. Whitehead’s case. Along with poor communication and failure

                                              -15-
to file a petition, the key misconduct attributed to Mr. Spitsyn’s attorney was that “despite
a request that he return Spitsyn’s file, [the attorney] retained it for the duration of the
limitations period and more than two months beyond. That conduct was so deficient as to
distinguish it from . . . merely negligent performance.” Spitsyn v. Moore, 345 F.3d at 801.
Furthermore, the United States Court of Appeals for the Ninth Circuit noted:

              It has been argued that Spitsyn could have satisfied the deadline
              despite [the attorney’s] misconduct by filing a petition pro se.
              But without the file, which [the attorney] still possessed, it
              seems unrealistic to expect Spitsyn to prepare and file a
              meaningful petition on his own within the limitations period.
              We have previously held that equitable tolling may be
              appropriate when a prisoner had been denied access to his legal
              files. Lott v. Mueller, 304 F.3d 918, 924 (9th Cir. 2002). That
              logic would apply to Spitsyn’s situation as well.

Spitsyn v. Moore, 345 F.3d at 801.

        In addition, the United States Supreme Court cited United States v. Martin, 408 F.3d
1089 (8th Cir. 2005), which contained facts similar to Spitsyn v. Moore. While “a majority
of the circuits have held that basic attorney errors such as miscalculation of a filing deadline
are generally insufficient to support equitable tolling,” the Eighth Circuit had previously
joined “other circuits” in holding that “serious attorney misconduct” or “misdeeds” could
equitably toll the statute of limitations. United States v. Martin, 408 F.3d at 1093-94 (citing
Spitsyn v. Moore, Baldayaque v. United States, Nara v. Frank, and other cases).

       The attorney in United States v. Martin had actively lied to the client and otherwise
avoided communication. The attorney told the client that “there was no deadline, and that
those who told him otherwise were wrong.” The court declined to fault Mr. Martin “for
relying on his attorney” in that circumstance. The attorney also kept Mr. Martin’s original
documents and failed to return them, even when the client asked for them. United States v.
Martin, 408 F.3d at 1094-95. Based on these facts, the United States Court of Appeals for
the Eighth Circuit found that Mr. Martin’s case was not one “where a petitioner has himself
to blame for an untimely filing” or one “dealing with attorney negligence, simple error, or
even abandonment.” Because Mr. Martin’s attorney “misrepresented the law, misrepresented
the status of Martin’s case, and retained possession of documents that were crucial to
Martin’s claim,” the Eighth Circuit found that equitable tolling was appropriate. United
States v. Martin, 408 F.3d at 1096.




                                              -16-
        Justice Alito filed a separate opinion in Holland v. Florida to express his
understanding of the types of attorney misconduct that would qualify as “extraordinary
circumstances.” First, Justice Alito noted that “our prior cases make it abundantly clear that
attorney negligence is not an extraordinary circumstance warranting equitable tolling.”
Holland v. Florida, 130 S. Ct. at 2566 (Alito, J., concurring). For example, an attorney’s
mistake in miscalculating the limitations period “is simply not sufficient to warrant equitable
tolling, particularly in the postconviction context where prisoners have no constitutional
right to counsel.” Holland v. Florida, 130 S. Ct. at 2566 (Alito, J., concurring) (quoting
Lawrence v. Florida, 549 U.S. 327, 336-37 (2007)). Justice Alito explained that, under
principles of agency law, “the mistakes of counsel are constructively attributable to the client,
at least in the postconviction context.” Holland v. Florida, 130 S. Ct. at 2566 (Alito, J.,
concurring).15

         Second, Justice Alito said the same rationale applied to even “gross negligence,”
which is simply “ordinary negligence with a vituperative epithet added.” Holland v. Florida,
130 S. Ct. at 2567 (Alito, J., concurring). He observed that the “highly artificial distinction
between gross and ordinary negligence” was irrelevant because, as Coleman v. Thompson
noted, “it is not the gravity of the attorney’s error that matters, but that it constitutes a
violation of petitioner’s right to counsel, so that the error must be seen as an external factor,
i.e., ‘imputed to the state.’” Holland v. Florida, 130 S. Ct. at 2567 (Alito, J., concurring)
(quoting Coleman v. Thompson, 501 U.S. 722, 754 (1991)).

        On the other hand, Justice Alito reasoned that “the AEDPA statute of limitations may
be tolled if the missed deadline results from attorney misconduct that is not constructively
attributable to the petitioner.” Holland v. Florida, 130 S. Ct. at 2568 (Alito, J., concurring).
“Common sense,” he said, “dictates that a litigant cannot be held constructively responsible
for the conduct of an attorney who is not operating as his agent in any meaningful sense of
that word.” Holland v. Florida, 130 S. Ct. at 2568 (Alito, J., concurring); cf. Baldayaque v.
United States, 338 F.3d at 154 (Jacobs, J., concurring) (“[W]hen an ‘agent acts in a manner
completely adverse to the principal’s interest,’ the ‘principal is not charged with [the] agent’s
misdeeds.’” (quoting National Union Fire Ins. Co. of Pittsburgh v. Bonnanzio, 91 F.3d 296,
303 (2d Cir. 1996))).

       The majority of the United States Supreme Court later adopted Justice Alito’s
reasoning in the procedural default case of Maples v. Thomas, 565 U.S. ___, ___, 132 S. Ct.
912, 922-24 (2012). The Court found that Justice Alito’s concurring opinion “homed in on


        15
          As one court explained, “[e]ven if a prisoner diligently checks an attorney’s references and
disciplinary records, he still cannot prevent the attorney from bungling his case. Nonetheless, we hold the
prisoner responsible for his attorney’s bungling.” Modrowski v. Mote, 322 F.3d 965, 968 (7th Cir. 2003).

                                                   -17-
the essential difference between a claim of attorney error, however egregious, and a claim
that an attorney had essentially abandoned his client.” Mr. Holland alleged that he had been
abandoned, “evidenced by counsel’s near-total failure to communicate” with Mr. Holland or
to respond to his repeated inquiries and requests. These allegations, if true, “would suffice
to establish extraordinary circumstances beyond his control.” Maples v. Thomas, 132 S. Ct.
at 923 (internal citations omitted). The Court agreed with Justice Alito that

              under agency principles, a client cannot be charged with the acts
              or omissions of an attorney who has abandoned him. Nor can a
              client be faulted for failing to act on his own behalf when he
              lacks reason to believe his attorneys of record, in fact, are not
              representing him. We therefore inquire whether Maples has
              shown that his attorneys of record abandoned him, thereby
              supplying the “extraordinary circumstances beyond his control”
              necessary to lift the state procedural bar to his federal petition.

Maples v. Thomas, 132 S. Ct. at 924 (internal citations omitted).

       The United States Supreme Court’s persuasive analysis of equitable tolling in light
of agency law prompts us to clarify one of our previous distinctions. In Smith v. State, we
observed:

              In Williams, 44 S.W.3d at 468, we held that misrepresentation
              concerning the status of the direct appeal could constitute
              ineffective assistance of counsel.            Short of active
              misrepresentation, however, we have never held that trial or
              appellate counsel’s inadvertent or negligent failure to inform his
              or her client of the right to file a post-conviction petition
              constitutes ineffective assistance of counsel.

Smith v. State, 357 S.W.3d at 358. While this is a correct statement of the law, the distinction
we drew between attorney negligence and attorney misrepresentation in footnote seven of
Williams v. State has become the focal point of cases such as this one. However, this focus
on the attorney’s mental state is somewhat misplaced. To the prisoner who is prevented from
filing a petition for post-conviction relief on time, it makes no difference whether the
attorney’s misbehavior was negligent, grossly negligent, or intentional. See Williams v. State,
44 S.W.3d at 476-77 (Drowota, J., dissenting); Holland v. Florida, 130 S. Ct. at 2567-68
(Alito, J., concurring). Due process principles of fundamental fairness more properly focus
our attention on whether the result of that negligent, reckless, or intentional attorney



                                              -18-
misbehavior amounted to an extraordinary circumstance beyond the petitioner’s control that
thwarted timely filing.

        Rather than perpetuate an artificial and unhelpful distinction between attorney
negligence and attorney misrepresentation, we conclude that the better course is to adopt the
rule of Holland and Maples for determining when due process necessitates tolling the Post-
Conviction Procedure Act’s one-year statute of limitations. While the elements of the
Holland rule have been present in this state’s due process tolling jurisprudence for some
time,16 our courts have tended to focus on whether particular cases fit one of the three ad hoc
due process exceptions we have identified in the past, i.e., later-arising claims, petitioner
mental incompetence, and attorney misrepresentation significantly more egregious than
negligence.

        Henceforth, when a post-conviction petitioner argues that due process requires tolling
the Post-Conviction Procedure Act’s statute of limitations based on the conduct of his or her
lawyer, the two-prong inquiry of Holland and Maples should guide the analysis. A petitioner
is entitled to due process tolling upon a showing (1) that he or she has been pursuing his or
her rights diligently, and (2) that some extraordinary circumstance stood in his or her way and
prevented timely filing. Holland v. Florida, 130 S. Ct. at 2562. Specifically, the second
prong is met when the prisoner’s attorney of record abandons the prisoner or acts in a way
directly adverse to the prisoner’s interests, such as by actively lying or otherwise misleading
the prisoner to believe things about his or her case that are not true. See Maples v. Thomas,
132 S. Ct. at 923; Holland v. Florida, 130 S. Ct. at 2564-65; Dillon v. Conway, 642 F.3d 358,
363-64 (2d Cir. 2011); Downs v. McNeil, 520 F.3d at 1320-21 (discussing these two “well-
recognized exceptions” to the “your lawyer, your fault” rule).

       In terms of diligence, courts have recognized that due diligence “does not require a
prisoner to undertake repeated exercises in futility or to exhaust every imaginable option, but
rather to make reasonable efforts. . . . Moreover, the due diligence inquiry is an
individualized one that must take into account the conditions of confinement and the reality
of the prison system.” Downs v. McNeil, 520 F.3d at 1323 (quoting Aron v. United States,
291 F.3d 708, 712 (11th Cir. 2002)).




        16
          See, e.g., Smith v. State, 357 S.W.3d at 358 (“In every case in which we have held the statute of
limitations is tolled, the pervasive theme is that circumstances beyond a petitioner’s control prevented the
petitioner from filing a petition for post-conviction relief within the statute of limitations.”); Williams v.
State, 44 S.W.3d at 469 (describing mental incompetence and attorney misrepresentation as circumstances
“beyond a defendant’s control” that “essentially preclude[]” a defendant from pursuing his legal remedies
independently).

                                                    -19-
       We do not expect this slight adjustment in our jurisprudence to open the floodgates
of due process tolling. Other jurisdictions have recognized the Holland equitable tolling
exception for years, yet its invocation remains rare. As one court explains, “any resort to
[equitable tolling] must be reserved for those rare instances where – due to circumstances
external to the party’s own conduct – it would be unconscionable to enforce the limitation
period against the party and gross injustice would result.” Harris v. Hutchinson, 209 F.3d
325, 330 (4th Cir. 2000). The Alabama Supreme Court has also noted that “the threshold
necessary to trigger equitable tolling is very high, lest the exceptions swallow the rule.” Ex
parte Ward, 46 So. 3d 888, 897 (Ala. 2007) (quoting United States v. Marcello, 212 F.3d
1005, 1010 (7th Cir. 2000)). This is especially true in Tennessee, where our General
Assembly has expressed its clear intention that the post-conviction filing deadline be
construed as strictly as possible. See also Sanchez v. State, 816 N.W.2d 550, 561 n.10 (Minn.
2012) (collecting cases from states that recognize equitable tolling in post-conviction actions
and concluding that “[w]e have not found any state that applies a test less stringent than the
federal Holland test in the context of postconviction relief”).

                                              V.

       Based on the egregious combination of facts of this case, we conclude that Mr.
Whitehead was pursuing his rights diligently and that the conduct of his appellate attorney
amounted to abandonment that prevented him from filing his post-conviction petition before
the deadline. Therefore, the statute of limitations should be tolled, and Mr. Whitehead
should be permitted to proceed on the petition he filed in March 2008.

        We find first that Mr. Whitehead was pursuing his rights diligently. Nothing in the
record indicates that Mr. Whitehead was aware that the United States Supreme Court had
denied his petition for certiorari until he received the misleading letter from his appellate
lawyer in August 2007 – approximately five months after the fact. This letter also belatedly
alerted Mr. Whitehead to the possibility of post-conviction relief. As soon as he received the
letter, the record shows that Mr. Whitehead began researching the law and asking his
appellate lawyer to send him his case files. Although his files were slow in coming, Mr.
Whitehead apparently began working as soon as he received them, and ultimately produced
a 32-page petition within the time frame indicated in his appellate lawyer’s letter. These
facts satisfy the first prong of the Holland test.

       Mr. Whitehead also faced an extraordinary combination of circumstances that
prevented him from filing his post-conviction petition on time – circumstances that were
tantamount to attorney abandonment. We emphasize that the sockdolager in this case is the
combination of Mr. Whitehead’s appellate lawyer’s failures, including the misleading
deadline and the retention of Mr. Whitehead’s files. None of the failures, standing alone,

                                             -20-
would be sufficient. Specifically, Mr. Whitehead’s appellate lawyer failed to timely inform
Mr. Whitehead that the United States Supreme Court had denied his petition for certiorari.
Coupled with this omission was the lawyer’s failure to timely notify Mr. Whitehead that their
attorney-client relationship had ended. Mr. Whitehead was not informed of either of these
facts for five months – costing him valuable time he could have applied to his post-
conviction petition. When the lawyer finally got around to informing Mr. Whitehead that his
petition for certiorari had been denied, the effectiveness of the communication was
undermined by the presence of the erroneous filing deadline. Furthermore, the lawyer
ignored Mr. Whitehead’s first request to return his files, and responded sluggishly to his
second request. We find these failures – failures that worked against the client’s interest –
to be equivalent to the types of attorney abandonment described in the majority and
concurring opinions in United States v. Holland and in Maples v. Thomas.

        The record indicates that Mr. Whitehead did not already possess the files he needed
and that the files held by his appellate lawyer contained critical information for his post
conviction petition. In his final letter to his former lawyer, Mr. Whitehead asked for his files
so he could “perfect [his] Petition for Post-Conviction Relief.” Mr. Whitehead testified at
his post-conviction hearing that he “could not possibly do any type work” on his post-
conviction case because he “didn’t have any files to . . . reference.” Mr. Whitehead also
testified that he had been communicating with the Innocence Project, who had asked him to
forward a copy of his file – something Mr. Whitehead could not do because he did not
possess the relevant files.

        Other courts have found equitable tolling appropriate when a lawyer’s compound
errors included retaining a client’s files. In Puckett v. State, 2000-DR-01077-SCT, 834 So.
2d 676 (Miss. 2002), the Mississippi Supreme Court found that, “[d]ue to circumstances
completely beyond his control,” a capital prisoner was “unable to timely file an application
for leave to seek post-conviction relief” within the one-year deadline set by state law. For
a time, Mr. Puckett had been represented by an attorney, who took Mr. Puckett’s “important
files and documents” to his offices in Oklahoma. When new counsel was appointed, Mr.
Puckett’s previous attorney ignored the new counsel’s requests to send the files. Relying,
in part, on our decision in Williams v. State, the Mississippi Supreme Court found that, by
failing to return Mr. Puckett’s files, Mr. Puckett’s former attorney “affirmatively frustrated
his efforts” to pursue post-conviction relief. The court therefore granted Mr. Puckett an
additional 180 days to file his application. Puckett v. State, 2000-DR-01077-SCT (¶¶ 15-17),
834 So. 2d at 680-81.

       In Lott v. Mueller, 304 F.3d 918 (9th Cir. 2002), the petitioner “was denied access to
the legal files related to his federal habeas petition for eighty-two days” while he was
transferred to another prison. When Mr. Lott regained access to his documents, he had only

                                              -21-
six days before the filing deadline. The court found that “[s]uch a fleeting period could have
made a timely filing by a pro se prisoner literally impossible.” Lott v. Mueller, 304 F.3d at
922-23. Mr. Lott’s case was remanded to determine whether “the confluence of numerous
factors beyond the prisoner’s control” warranted equitable tolling. Lott v. Mueller, 304 F.3d
at 924-25.

        In Spitsyn v. Moore, the United States Court of Appeals for the Ninth Circuit found
that an attorney’s misconduct was “sufficiently egregious to justify equitable tolling” when,
“despite a request that he return [the petitioner’s] file, [the attorney] retained it for the
duration of the limitations period and more than two months beyond.” Without the file, the
court found it “unrealistic to expect [the petitioner] to prepare and file a meaningful petition
on his own within the limitations period.” Spitsyn v. Moore, 345 F.3d at 801.

        In United States v. Martin, the United States Court of Appeals for the Eighth Circuit
found equitable tolling warranted when the attorney “misrepresented the law, misrepresented
the status of [his client’s] case, and retained possession of documents that were crucial to [the
petitioner’s] claim.” United States v. Martin, 408 F.3d at 1096. The attorney “failed to
return any of [the petitioner’s] paperwork to him despite repeated requests and then
demands.” United States v. Martin, 408 F.3d at 1095.

       Federal courts in New York observe the following rule: “Equitable tolling is
warranted when some event effectively prohibits the petitioner from pursuing habeas, such
as the misplacement of files, or being denied access to materials necessary to file a habeas
petition.” Corrigan v. Barbery, 371 F. Supp. 2d 325, 331 (W.D.N.Y. 2005); Raynor v.
Dufrain, 28 F. Supp. 2d 896, 900 (S.D.N.Y. 1998).

        The same principles apply to due process tolling under Tennessee’s Post-Conviction
Procedure Act. The lawyer’s unreasonable delay in sending Mr. Whitehead his files,
exacerbated by the lawyer’s erroneous deadline and the delay in notifying Mr. Whitehead that
his direct appeals were exhausted and that the attorney-client relationship had ended,
constitute an “objective factor,” an impediment that “cannot be fairly attributed” to Mr.
Whitehead. Coleman v. Thompson, 501 U.S. at 753; cf. Maples v. Thomas, 132 S. Ct. at 923
(“Common sense dictates that a litigant cannot be held constructively responsible for the
conduct of an attorney who is not operating as his agent in any meaningful sense of that
word.” (quoting Holland v. Florida, 130 S. Ct. at 2568 (Alito, J., concurring))); see also
Spitsyn v. Moore, 345 F.3d at 801 (noting that retaining a client’s legal files “for the duration
of the limitations period” goes beyond “merely negligent performance,” and that it would be
“unrealistic” to expect a petitioner to file a petition within the deadline without his legal
files); United States v. Martin, 408 F.3d at 1095-96 (tolling the deadline when an attorney



                                              -22-
“misrepresented” the law and retained possession of the prisoner’s files, despite “repeated
requests” to return them).

        As we recently noted, “[i]n every case in which we have held the statute of limitations
is tolled, the pervasive theme is that circumstances beyond a petitioner’s control prevented
the petitioner from filing a petition for post-conviction relief within the statute of
limitations.” Smith v. State, 357 S.W.3d at 358. This observation holds true today.

                                             VI.

       Because Mr. Whitehead pursued his post-conviction rights diligently but was thwarted
from filing a timely petition due to extraordinary circumstances beyond his control, the
principles of due process and fundamental fairness require that the statute of limitations
under Tenn. Code Ann. § 40-30-102 be tolled. The decision of the Court of Criminal
Appeals is reversed, and the case is remanded to the trial court to proceed with Mr.
Whitehead’s petition for post-conviction relief filed in March 2008. The costs of this appeal
are taxed to the State of Tennessee.




                                                    _________________________________
                                                    WILLIAM C. KOCH, JR., JUSTICE




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