         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs December 16, 2003

                    CONLEY R. FAIR v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Unicoi County
                             No. 5039    Lynn W. Brown, Judge



                                   No. E2003-00807-CCA-R3-PC
                                          March 1, 2004

The petitioner, Conley R. Fair, filed for post-conviction relief, alleging the ineffective assistance of
counsel. The post-conviction court summarily dismissed the petition without an evidentiary hearing
and without the appointment of counsel, finding that the petition was not timely filed. Upon review
of the record and the parties’ briefs, we reverse the judgment of the post-conviction court and
remand for the appointment of counsel and an evidentiary hearing.

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

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JOE G. RILEY and THOMAS
T. WOODALL, JJ., joined.

Conley R. Fair, Mountain City, Tennessee, Pro se.

Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
Joe C. Crumley, Jr., District Attorney General; and Anthony Wade Clark, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                               OPINION

                                       I. Factual Background

        The petitioner was convicted by a Unicoi County jury of one count of first degree murder and
one count of attempted first degree murder. This court affirmed his convictions on direct appeal.
State v. Conley Ross Fair, No. 03C01-9810-CR-00362, 1999 WL 1045074 (Tenn. Crim. App. at
Knoxville, Nov. 19, 1999).

        On June 22, 2002, the petitioner filed a pro se petition for post-conviction relief, alleging that
his counsel had failed to inform him that his convictions had been affirmed on direct appeal, had
failed to properly withdraw pursuant to Rule 14 of the Rules of the Tennessee Supreme Court, and
had failed to file a Rule 11 application for permission to appeal to the Tennessee Supreme Court.1
The petitioner maintained that he was entitled to “limited” relief in the form of a delayed appeal.

         On February 4, 2003, the post-conviction court entered an order denying relief. The post-
conviction court noted that the petitioner’s convictions were affirmed on November 19, 1999, but
the petition for post-conviction relief was not filed until July 19, 2002, more than two years later.
Accordingly, the post-conviction court found that the petition was untimely and dismissed the
petition without appointing counsel or holding an evidentiary hearing. The petitioner now appeals
the decision of the post-conviction court, alleging that the court erred by summarily dismissing his
claim. On appeal, the petitioner maintains that he is “an indigent, incarcerated, uneducated and
illiterate pro se petitioner” who was “kept in the dark through no fault of his own, and through the
misrepresentation of his court-appointed counsel.”

                                                    II. Analysis

       We begin our analysis by noting that post-conviction relief “shall be granted when the
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.” Tenn. Code Ann. § 40-30-203
(1997). However, the Post-Conviction Procedure Act provides that

                  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 consideration of such petition shall be
                  barred. . . . Time is of the essence of the right to file a petition for
                  post-conviction relief . . . and the one-year limitations period is an
                  element of the right to file such an action and is a condition upon its
                  exercise.

Tenn. Code Ann. § 40-30-202(a) (1997).

        The Post-Conviction Procedure Act provides that under certain circumstances, a court may
consider a petition filed outside the one-year limitations period. Under Tennessee Code Annotated
section 40-30-202(b) (1997), no court shall have jurisdiction to consider a petition filed after such
time unless:

                  (1) The claim in the petition is based upon a final ruling of an
                  appellate court establishing a constitutional right that was not

         1
            On October 8, 2003, this court entered an order denying the State’s motion for affirmance of the judgment
of the post-conviction court pursuant to Rule 20 of the Rules of the Court of Criminal Appeals, concluding that “counsel
neither sought permission to withdraw pursuant to Supreme Court Rule 14 nor did he file an application for permission
to appeal our decision to the Tennessee Supreme Court pursuant to Rule 11 [of the Tennessee Rules of Appellate
Procedure].”

                                                          -2-
                  recognized as existing at the time of trial, if retrospective application
                  of that right is required. . . . ;
                  (2) The claim in the petition is based upon new scientific evidence
                  establishing that such petitioner is actually innocent of the offense or
                  offenses for which the petitioner was convicted; or
                  (3) The claim asserted in the petition seeks relief from a sentence that
                  was enhanced because of a previous conviction and such conviction
                  in the case in which the claim is asserted was not a guilty plea with
                  an agreed sentence, and the previous conviction has subsequently
                  been held to be invalid . . . .

        Our supreme court has stated that the language of the Post-Conviction Procedure Act is
unambiguous, noting that the Act clearly mandates that post-conviction claims be filed within one
year from 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 year of the date on which the judgment became final. Williams
v. State, 44 S.W.3d 464, 468 (Tenn. 2001). However, the court has concluded that, “in certain
circumstances, strict application of the statute of limitations would deny a defendant a reasonable
opportunity to bring a post-conviction claim and thus, would violate due process.” Id.

         Our supreme court has previously held that due process concerns may require that the statute
of limitations be tolled if a petitioner establishes that his attorney’s misrepresentations deprived him
of a reasonable opportunity to seek post-conviction relief. Id. at 471. In Williams, the petitioner
filed a petition for post-conviction relief nine months after the statute of limitations had expired,
alleging that counsel failed to notify him of his intent to withdraw after the petitioner’s convictions
were affirmed on direct appeal by the court of criminal appeals and failed to file an application for
permission to appeal to the Tennessee Supreme Court. Id. at 466 n.4. Our supreme court noted that
“the record indicates 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. The court stated, “If 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. The court concluded that if the petitioner was,
in fact, misled to believe that counsel was continuing the appeals process, due process required the
tolling of the statute of limitations. Id. at 471. Thus, the supreme court remanded the matter to the
post-conviction 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 [nine months after the expiration of the statute of
limitations] was within the reasonable opportunity afforded by the due process tolling.” Id.2



         2
            In so holding, the supreme court stated, “W e decline to arbitrarily determine what length of time constitutes
‘enough time’ for a defendant to pursue post-conviction appellate review. Indeed, this is a question of fact for the trial
court.” Id.

                                                           -3-
        In the instant case, we are unable to determine whether the petitioner’s due process rights
were violated by counsel’s failure to withdraw or file an application for permission to appeal. As
we have noted, the petitioner maintains that because counsel failed to file a Rule 11 application for
permission to appeal to our Supreme Court, he was denied the right to second-tier review of his
convictions. He further alleges that counsel refused to communicate with him regarding the status
of his appeal and failed to properly withdraw. Thus, the petitioner alleges that “counsel kept
petitioner in complete and total darkness until it was too late to seek Supreme Court review.” The
petitioner alleges that he learned this court had affirmed his conviction only after he contacted the
appellate court clerk in August 2000.3

        In order to determine whether the petitioner’s due process rights were violated, certain facts
must be determined. We are unaware of how and when the petitioner learned that no application for
permission to appeal had been filed, or if counsel did indeed misrepresent the status of the
petitioner’s claim. Further, we are unaware of why counsel did not file a motion to withdraw from
his representation of the petitioner. In addition, we are unaware of what, if anything, the petitioner
did after receiving notification from our clerk in August 2000 until the filing of his petition in July
2002. Accordingly, we remand to the post-conviction court for the appointment of counsel and 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 manner; and (2) if so, whether the [petitioner’s] filing of the post-
conviction petition in [July, 2002] was within the reasonable opportunity afforded by the due process
tolling.” Williams, 44 S.W.3d at 471. If the post-conviction court determines that the petitioner,
through no fault of his own, was denied his right to seek second-tier review and filed his petition
within a reasonable time, the court shall grant him the opportunity to seek a delayed appeal to our
supreme court.

                                                     III. Conclusion

       We remand to the post-conviction court for appointment of counsel and for an evidentiary
hearing.




                                                                     ___________________________________
                                                                     NORMA McGEE OGLE, JUDGE

         3
             The petitioner attached to his appellate brief a copy of the letter from the appellate court clerk dated August
4, 2000, notifying the petitioner of the status of his appeal. In the letter, the appellate court clerk stated that “[a]n opinion
and judgment affirming the decision of the trial court was filed on November 19, 1999, [and a] mandate was issued to
the trial court on February 8, 2000.” The petitioner also attached a letter from his attorney dated September 14, 1999,
notifying the petitioner of his intent to file a motion to withdraw as counsel and that the petitioner’s direct appeal was
still before the Court of Criminal Appeals. However, no motion to withdraw was filed in this court.

                                                              -4-
