         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                          Assigned on Briefs September 19, 2001

                BARRY N. WADDELL v. STATE OF TENNESSEE

                 Direct Appeal from the Criminal Court for Davidson County
                         No. 96-C-1372    Cheryl Blackburn, Judge



                    No. M2001-00096-CCA-R3-PC - Filed October 17, 2001


The Appellant, Barry N. Waddell, proceeding pro se, appeals the Davidson County Criminal Court’s
summary dismissal of his petition for post-conviction relief. The post-conviction court found
Waddell’s petition was time-barred. On appeal, Waddell argues that: (1) his petition was timely
filed, and (2) alternatively, if the petition was untimely filed, the statute of limitations was tolled
under the holding of Dexter Williams v. State, 44 S.W.3d 464 (Tenn. 2001). After review, we affirm
the judgment of the post-conviction court dismissing the petition.

              Tenn. R. App. P. 3; Judgment of the Criminal Court is Affirmed.

DAVID G. HAYES, J., delivered the opinion of the court, in which GARY R. WADE, P.J. and JERRY L.
SMITH, J., joined.

Barry N. Waddell, Pro Se, Tiptonville, Tennessee.

Paul G. Summers, Attorney General and Reporter; Michael Moore, Solicitor General; Kim R.
Helper, Assistant Attorney General; Victor S. Johnson III, District Attorney General; and Roger
Moore, Assistant District Attorney General, for the Appellee, State of Tennessee.


                                             OPINION

                                       Factual Background

        On March 13, 1997, the Appellant, after a trial by jury, was convicted of two (2) counts
of rape of a child and two (2) counts of aggravated sexual battery. He was sentenced to seventy
(70) years in the Department of Correction. The Appellant filed a direct appeal challenging his
convictions and sentence. On June 1, 1999, this court reduced the Appellant’s sentence to sixty-
six (66) years. See State v. Waddell, No. 01C01-9801-CR-00016 (Tenn. Crim. App. at
Nashville, June 1, 1999). The case was not remanded to the trial court because the sentence, as
modified, was imposed by this court after de novo review; therefore, additional proceedings were
not necessary. On August 17, 1999, the trial court entered the amended judgment form to reflect
the action of the Court of Criminal Appeals.

        On December 13, 1999, the Appellant’s attorney informed the Appellant by letter that his
direct appeal to the Court of Criminal Appeals had been denied, except for the sentence
modification. Appellant’s counsel further opined that a Rule 11 application for permission to
appeal to the Tennessee Supreme Court would be futile and for this reason, advised the Appellant
that he was terminating further representation. On August 4, 2000, the Appellant, incarcerated
and proceeding pro se, mailed his petition for post-conviction relief seeking a delayed appeal of a
Rule 11 application. The petition was received by the Davidson County Court Clerk’s Office and
filed on August 11, 2000. On December 12, 2000, the post-conviction court summarily
dismissed the Appellant’s petition for post-conviction relief as untimely filed in violation of the
one (1) year statute of limitations.

                                                        ANALYSIS

        The Appellant argues that his post-conviction petition seeking a delayed appeal was
timely filed.1 In order for the Appellant’s petition to be timely, it must have been filed within
one (1) year of the date of the final action of the highest appellate court to which an appeal was
taken. Tenn. Code Ann. § 40-30-202(a) (1997).2 The Appellant’s conviction became final on
June 1, 1999, when the Court of Criminal Appeals affirmed the Appellant’s convictions and
modified his sentence, as this was the final action of the highest state appellate court to which an
appeal was taken. Thus, under the Post-Conviction Act, the Appellant had until June 1, 2000, to
file a petition for post-conviction relief. The Appellant did not file the instant petition until
August 4, 2000, outside the applicable limitations period. Therefore, the Appellant’s petition is
time-barred.

        In the alternative, the Appellant, citing Williams v. State, 44 S.W.3d 464 (Tenn. 2001),
argues that assuming the petition was untimely, due process considerations should toll the statute
of limitations because he may have been deprived by trial counsel of a reasonable opportunity to
seek post-conviction relief. Specifically, the Appellant points to the following facts: (1) counsel
unilaterally terminated the Appellant’s right to file a Rule 11 appeal to the Tennessee Supreme

         1
           The Appellant incorrectly points to Gibson v . State, 7 S.W.3d 47 (Tenn. Crim. App. 1998), asserting that “the
Court of Criminal A ppeals, sitting in N ashville, held tha t for (sic) a perso n in the App ellant’s predic ament, shou ld first
seek to file the delayed appeal and if then the Rule 11 [a ]pplication was denied , at that point in time , the one year sta tute
of limitations would then begin to run for the filing of a [p]etition [f]or [p]ost-conviction [r]elief to allege any
constitutional violations involving the original conviction.” Not only does the Appellant misstate the hold ing of Gibson,
but Gibson involved a d issimilar factual sce nario bec ause, here, the Appellan t never pursu ed a Rule 1 1 appea l.

         2
           “A person in custody under a sentence of a court of this state m ust petition for p ost-convictio n relief under th is
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.” Tenn. Code Ann. § 40-30-202(a) (1997 ).

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Court by failing to notify the Appellant of the decision of the Criminal Court of Appeals until
December 13, 1999, more than six months after the decision was issued; (2) counsel failed to
formally withdraw as the attorney of record within fourteen (14) days after the final decision of
the Court of Criminal Appeals as required by Tennessee Supreme Court Rule 14;3 (3) and as
further required by Rule 14, counsel failed to notify the Appellant in writing that the Appellant
could file a pro se Rule 11 application for permission to appeal to the Tennessee Supreme Court.

        In Williams, the Tennessee Supreme Court held that due process may require tolling of the
statute of limitations for filing a post-conviction petition where the inmate/petitioner may have
been deprived by his counsel of a reasonable opportunity to seek post-conviction relief. Id. at
467. Williams 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 [inmate/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 [inmate/petitioner’s] filing of the post-
conviction . . . was within the reasonable opportunity afforded by the due process tolling.” Id. at
471.

        In Williams, the inmate/petitioner was convicted of first degree murder and sentenced to
life imprisonment in 1993. Id. at 465. On January 9, 1995, his conviction was affirmed by the
Court of Criminal Appeals. Id. Thereafter, trial counsel terminated representation. “The
[inmate/petitioner] averred that his trial counsel failed to notify him of counsel’s withdrawal from
the case, or to explain to him his rights for filing a pro se petition to” the Tennessee Supreme
Court. Id. Trial counsel filed a formal motion to withdraw on October 18, 1995, in which trial
counsel sought permission for the [inmate/petitioner] to proceed with a delayed appeal to the
Tennessee Supreme Court. Id. at 465-66. The trial court denied the request. Id. at 466. On
November 8, 1999, trial counsel filed an application for permission to appeal to the Tennessee
Supreme Court, which was denied as untimely. Id. Thereafter, on October 24, 1996, the
inmate/petitioner, proceeding pro se, filed a petition for post-conviction relief. Id. The petition
was dismissed by the post-conviction court without a full evidentiary hearing because the
inmate/petitioner was unprepared to present evidence. Id. at 465.



         3
          Tennessee Supreme Co urt Rule 14 governs w ithdrawal of counsel for indigent defend ants. In this case,
appellate counsel on direct appeal was retained. Tenn. R. Crim. P. 37(e), de fines the duties o f counsel rega rding app eal:

         Retained counsel filing a notice of appeal, whether counsel be fully paid or not, shall represent the
         defendant on appeal, fully complying with all of the rules of the appellate court as to timely filing and
         appearances therein, and shall be allowed to withdraw as such counsel of re cord on ly for good cause
         and if application is made whe n such attorney is not delinquent in his or her duties.

See also, Tenn. Su p. Ct. R. 8, D R 2-110 (Withdr awal from E mployme nt), Tenn. C t. Crim. App . R. 12.

Although the Appe llant acknow ledges that he was advised by letter of De cember 1 3, 1999 , of his retained c ounsel’s
termination of further representation, the case history of the direct appeal reflects that no withdrawal as counsel of record
was ever entered as requ ired by the above cited rules.

                                                             -3-
         In the instant case, the Appellant argues that his case is exactly on point with Williams,
and we should remand to the post-conviction court “for the [a]ppointment of [c]ounsel to
represent the Appellant and for an [e]videntiary hearing to be [h]eld in [o]rder to determine if the
facts as so alleged [warrant] the tolling of the one (1) year statute of limitations for filing the
[p]etition. . . .” We disagree. In Williams, the inmate/petitioner averred that he believed trial
counsel was continuing to represent him through the appeals process. The court remanded for an
evidentiary hearing on grounds that the inmate/petitioner might “have been denied the opportunity
to challenge his conviction in a timely manner through no fault of his own but because of the
possible misrepresentation of counsel.” Id. at 468.

        The Appellant in the present case was not under the mistaken belief that he continued to
be represented by trial counsel. The Appellant acknowledges on appeal he was aware on
December 13, 1999, that his attorney was terminating any further representation. Although a Rule
11 application to the Tennessee Supreme Court was time-barred at the time trial counsel notified
the Appellant of his withdrawal, the Appellant had a reasonable opportunity, six (6) months, in
which to file a petition for post-conviction relief. His failure to file such a petition did not result
from the misrepresentation of counsel. Rather, this failure resulted from the advice of a prison
paralegal. The Appellant, based upon the advice of the prison paralegal, believed the date the trial
court entered the amended judgment form, August 17, 1999, to be the date of final action
triggering the one (1) year statute of limitations. However, as previously discussed, under Tenn.
Code. Ann. §40-30-202(a) this is not the correct date of final action. The lack of knowledge of
statute of limitations provisions does not excuse late filings. Skinner v. State, No. 02C01-9403-
CC-0039 (Tenn. Crim. App. at Jackson, July 13, 1994), perm. to appeal denied (Tenn. 1994).
Therefore, summary dismissal of the Appellant’s petition was proper.


                                           CONCLUSION

         Based upon the foregoing reasons, we find that the Appellant’s petition for post-conviction
relief is time-barred. Accordingly, the judgment of the post-conviction court summarily
dismissing the petition is affirmed.




                                                        ___________________________________
                                                        DAVID G. HAYES, JUDGE




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