            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                             AT NASHVILLE
                               Assigned on Briefs April 18, 2012

                DAVID EASTON JONES v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Davidson County
                     No. 2000-C-1550    J. Randall Wyatt, Jr., Judge


                    No. M2011-01450-CCA-R3-PC- Filed June 12, 2012



R OGER A. P AGE, J., dissenting.

        I respectfully dissent from the majority’s conclusion that due process considerations
could toll the statute of limitations in this case. While there are instances when due process
could toll the statute of limitations, this is not one of them. Accordingly, I would affirm the
judgment of the post-conviction court summarily dismissing the petition for post-conviction
relief.

        The petitioner pled guilty on January 30, 2003.1 He did not file this petition for post-
conviction relief until May 2, 2011, more than eight years later. The majority holds that “in
light of [the petitioner’s] assertion that he believed counsel was filing a direct appeal on his
behalf and the relevant precedent, [they] are constrained to remand the case to the post-
conviction court for an evidentiary hearing . . . .”

        While post-conviction petitioners must be afforded “a reasonable opportunity” to
present their claims, Sands v. State, 903 S.W.2d 297, 300 (Tenn. 1995), the State also “has
a legitimate interest in preventing the litigation of stale or fraudulent claims.” Burford v.
State, 845 S.W.2d 204, 208 (Tenn. 1992) (citing Jimenez v. Weinberger, 417 U.S. 628, 636
(1974)). “A [petitioner] ‘who fails to assert an existing claim . . . in a timely fashion may not
expect due process relief under Burford.’” Cox v. State, No. M1999-00447-CCA-R3-PC,
2001 WL 208503, at *3 (Tenn. Crim. App. Mar. 2, 2001) (quoting Seals v. State, 23 S.W.3d
272, 278 (Tenn. 2000)). “Our supreme court has emphasized, however, that ‘[i]n every case
in which we have held the statute of limitations is tolled, the pervasive theme is that


        1
         As set forth in the majority opinion, petitioner had already exercised his post-conviction rights
and prevailed. A post-conviction court set aside his earlier guilty plea, and petitioner pled guilty for a
second time to the same charges.
circumstances beyond a petitioner’s control prevented the petitioner from filing a petition for
post-conviction relief within the statute of limitations.’” James Wesley Osborne v. State,
No. E2010-01548-CCA-R3-PC, 2012 WL 953102, at * 4 (Tenn. Crim. App. Mar. 20, 2012)
(quoting Smith v. State, 357 S.W.3d 322, 358 (Tenn. 2011)). However, “a petitioner’s
interest in attacking a conviction is not a fundamental right that deserves heightened due
process protection.” Seals, 23 S.W.3d at 277.

        The record does not show that circumstances beyond the petitioner’s control prevented
him from filing his petition for post-conviction relief within the statute of limitations.
Likewise, the record does not indicate that trial counsel’s advice regarding the direct appeal
might have denied the petitioner the opportunity to file a petition for post-conviction relief
in a timely manner “through no fault of his own but because of the possible misrepresentation
of his counsel.” Williams v. State, 44 S.W.3d 464, 468 (Tenn. 2001).

        In his petition for post-conviction relief, the petitioner claims that his counsel advised
him that his case had been appealed. The petitioner apparently wanted to appeal a sentencing
issue; however, the petitioner pled guilty to the underlying charges, and his plea agreement
almost certainly included an agreed-upon sentence and a waiver of the right to appeal. Thus,
the petitioner waived his right to a direct appeal of his sentence. See Tenn. R. App. P. 3
(allowing an appeal as of right on a plea of guilty or nolo contendere if the defendant seeks
review of the sentence and there was no plea agreement concerning the sentence). This
sparse record does not include a transcript of the guilty plea hearing for either his first or
second guilty plea proceeding. It also fails to include the guilty plea form for the second plea
agreement. The petitioner claims that he was not brought to court for the second plea
proceeding. Circumstances such as this case demonstrate the reason for statutes of limitation.
After more than eight years have elapsed, it is difficult to prove or disprove the petitioner’s
claims. Moreover, it is the petitioner’s duty to prepare a record that conveys a “fair, accurate
and complete account of what transpired with respect to those issues that are the bases of
appeal.” Tenn. R. App P. 24(b).

        In addition, even if the petitioner did not waive his appeal as of right, the petitioner
did not file his petition for post-conviction relief within one year of counsel allegedly
advising him that this court had affirmed his case on direct appeal. The petitioner asserts that
trial counsel “abandoned” him immediately following re-sentencing. He also stated in his
petition that “counsel also advised that he had appealed the case, but it was affirmed.” While
the petitioner claims to have “found out later” that counsel did not file an appeal, he has not
offered a satisfactory explanation as to why he waited more than eight years after the alleged
abandonment and alleged notification of affirmation on direct appeal to file a petition for
post-conviction relief. Even under the petitioner’s version of the facts, he should have filed
his petition for post-conviction relief one year from when trial counsel allegedly informed

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him that trial counsel filed an appeal and this court affirmed the conviction. Instead, the
petitioner waited to file for post-conviction relief until he allegedly learned that counsel had
not filed an appeal, which was more than seven years after the limitations period had expired.

        I acknowledge that this court and our supreme court have appropriately reversed
summary dismissals of post-conviction petitions on many occasions based on due process
grounds. However, I have concluded that under the circumstances of this case, a petitioner
who waits more than seven years after his claim is time-barred has not demonstrated that his
failure to timely file his petition for post-conviction relief was due to circumstances beyond
his control. I have determined that “the time period [of the applicable statute of limitations]
provided [the petitioner] a reasonable opportunity to have the claimed issue heard and
determined.” Seals, 23 S.W.3d at 278.

        The State has a legitimate interest in limiting due process rights for appropriate
reasons. See Burford v. State, 845 S.W.2d at 208. The transportation of prisoners to a trial
court is a time-consuming and expensive endeavor. Older claims become stale and difficult
to defend. Witnesses disappear or pass away, and memories fade when eight years have
elapsed since a guilty plea. Transcripts and other records become difficult to procure. Seven
years after the expiration of the statute of limitations is just too long to wait to file a post-
conviction petition under these circumstances.

        “Due process is not offended by objectively applying a procedural bar to a fully
competent prisoner who simply failed to assert his rights in a timely manner.” Williams, 44
S.W.3d at 474 (Drowota, J., dissenting). Accordingly, I would hold that the petitioner has
not alleged sufficient facts that suggest due process considerations require tolling of the post-
conviction statute of limitations in this case and would affirm the summary dismissal by the
post-conviction court.


                                                     _________________________________
                                                     ROGER A. PAGE, JUDGE




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