        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                Assigned on Briefs September 15, 2015 at Knoxville

            SHELLEY DENISE BLAIR v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Williamson County
                    No. CR108328     Michael W. Binkley, Judge


              No. M2014-02506-CCA-R3-PC – Filed December 17, 2015



The petitioner, Shelley Denise Blair, appeals the summary dismissal of her petition for
post-conviction relief, arguing that the post-conviction court erred by relying solely on
her pro se petition, and not considering the allegations of fact in the amended petition
prepared by post-conviction counsel, in concluding that she failed to make out a prima
facie case of mental incompetence to toll the statute of limitations. Following our review,
we affirm the summary dismissal of the petition as time-barred.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ALAN E. GLENN, J., delivered the opinion of the court, in which NORMA MCGEE OGLE
and D. KELLY THOMAS, JR., JJ., joined.

Matthew J. Crigger, Brentwood, Tennessee, for the appellant, Shelley Denise Blair.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;
Kim R. Helper, District Attorney General; and Mary K. White, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                       OPINION

                       FACTS and PROCEDURAL HISTORY

        On October 11, 2011, the petitioner pled guilty in the Criminal Count of
Williamson County to two counts of aggravated assault, one count of attempted
especially aggravated kidnapping, and one count of kidnapping, for which she received a
total effective sentence of sixteen years in the Department of Correction. On October 1,
2014, the petitioner filed an untimely pro se petition for post-conviction relief in which
she raised claims of ineffective assistance of counsel and unknowing and involuntary
guilty pleas. As the basis for the statute of limitations to be tolled, the petitioner alleged
only “[m]ental instability -- on suicide watch.”

       On October 9, 2014, the post-conviction court entered a preliminary order finding
that the petitioner presented a colorable claim and appointing post-conviction counsel
with instructions to file within thirty days either an amended petition, if necessary, or a
notice stating that no amended petition would be filed. On October 20, 2014, the court
entered an amended preliminary order which corrected the docket numbers and provided
that the amended order be served on the correct trial counsel. On October 24, 2014, the
State filed a motion to dismiss on the basis that the petition was barred by the one-year
statute of limitations and the petitioner failed to meet the threshold burden of
demonstrating that the limitations period should be tolled.

       On October 29, 2014, the court entered an order setting a December 2, 2014
hearing on the State’s motion to dismiss. On November 6, 2014, post-conviction counsel
filed motions “to Construe Amended Preliminary Order” to allow more time for filing the
amended petition, for an “Extension of Time to File Amended Petition,” and “to
Continue State’s Motion to Dismiss,” stating, among other things, that he had not yet
received requested medical records from the Tennessee Prison for Women and would
need time to review the records once received. In an order entered on November 19,
2014, the court continued the petitioner’s motions until December 2, 2014, to “be heard
along with the State’s Motion to dismiss that [was] set for that date.” The court also
ordered that post-conviction counsel prepare as complete as possible an amended petition
and to serve, but not file, the petition upon the State’s attorney prior to the December 2
hearing.

       At the December 2 hearing, post-conviction counsel conceded that the pro se
petition failed to allege sufficient facts for the petitioner to make out a prima facie
showing of mental incompetence to toll the statute. He argued, however, that he alleged
sufficient facts for a prima facie showing in his amended petition, which

       set forth that [the petitioner] was on suicide watch when she was admitted
       into the Tennessee Prison for Woman, and that she was not removed from
       suicide watch until her mood was stabilized, and that since she had been in
       the Tennessee Prison for Women she’s been diagnosed with posttraumatic
       stress disorder and been placed on heighten [sic] level of care which the
       Tennessee Prison for Women or TDOC denotes is level of care two, which
       we have averred constitutes medication and supervision.




                                              2
       Post-conviction counsel attached the petitioner’s prison medical records to the
petition.1

        At the conclusion of the hearing, the post-conviction court found that, had the
petitioner “made those types of allegations [contained in the amended petition] in the
original petition,” she would have met the minimum threshold of establishing a prima
facie case in order to be afforded a full hearing on the issue. The court concluded,
however, that the petitioner’s pro se petition failed to allege sufficient facts to make out a
prima facie case of mental incompetence to justify the tolling of the statute of limitations.
The court noted that it had appointed post-conviction counsel and found that the pro se
petition presented a colorable claim for relief without any consideration of the statute of
limitations issue and that Rule 29 of the Rules of the Supreme Court, cited by post-
conviction counsel as providing authority for his amended petition to be considered, was
not applicable in cases in which the petition was untimely. Thereafter, the petitioner filed
a timely notice of appeal to this court.

                                               ANALYSIS

        On appeal, the petitioner asserts that “[a] dismissal under the statute of limitations
should not be considered a dismissal on the merits” such as to bar her from filing a
second petition for post-conviction relief. With that as a premise, she argues that,
“[i]nstead of summarily dismissing the [p]etition, the [post-conviction] court should have
allowed [the petitioner] leave to file an amended petition as it initially did in its
preliminary orders[,]” which would have “prevented the needless filing of a subsequent
petition” and “conserved judicial resources.” The petitioner further argues that this court
should “encourage [post-conviction] courts to appoint counsel, where appropriate, and
grant leave to amend in post-conviction cases in which the petition is untimely but there
is at least some attempt to allege facts sufficient to toll the statute of limitations for
mental incompetence.” The State responds by arguing that the court properly dismissed
the petition as time-barred based on the petitioner’s pro se petition. We agree with the
State.

       Under the Post-Conviction Procedure Act, a claim 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.”
Tenn. Code Ann. § 40-30-102(a) (2012).


        1
         The amended petition and its attachments were filed on December 2, 2014, and are in the record
before this court. According to the petitioner’s brief, the petition should have been part of Exhibit 1 to the
hearing but was instead mistakenly filed by the court clerk.
                                                      3
       The post-conviction statute contains a specific anti-tolling provision:

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

Id.

        Subsection (b) of the statute sets forth the three narrow exceptions under which an
untimely petition may be considered, none of which is applicable in this case. However,
in addition to the statutory exceptions, our supreme court “has identified three
circumstances in which due process requires tolling the post-conviction statute of
limitations”: (1) when a claim for relief arises after the statute of limitations has expired;
(2) when a petitioner is prevented by his or her mental incompetence from complying
with the statute’s deadline; and (3) when attorney misconduct necessitates the tolling of
the statute. Whitehead v. State, 402 S.W.3d 615, 622-23 (Tenn. 2013).

       Our supreme court has addressed the showing required to make out a prima facie
case of mental incompetence for tolling the statute of limitations:

              In the interest of uniformity and simplicity, we have determined that
       the standards and procedures in Tenn. Sup. Ct. R. 28, § 11 should
       henceforth be used in all post-conviction proceedings . . . in which the issue
       of the petitioner’s competency is properly raised. Thus, Tenn. Sup. Ct. R.
       28, § 11 will apply not only when a petitioner seeks to withdraw a
       previously-filed petition for post-conviction relief, but also when a
       petitioner seeks to toll the statute of limitations in Tenn. Code Ann. § 40-
       30-102(a) due to incompetency, and when a “next friend” seeks to have the
       prisoner declared incompetent.

              In light of the importance our society ascribes to personal autonomy,
       the inquiry should begin with a presumption that the petitioner or prisoner
       is competent. . . . [The petitioner] must make a prima facie showing that
       [the petitioner] is incompetent by submitting affidavits, depositions,
       medical reports, or other credible evidence that contain specific factual
       allegations showing the petitioner’s incompetence. . . .
                                              4
               The competency standard applicable to these proceedings is whether
        the prisoner possesses “the present capacity to appreciate [his or her]
        position and make a rational choice with respect to continuing or
        abandoning further litigation or on the other hand whether the petitioner is
        suffering from a mental disease, disorder, or defect which may substantially
        affect the petitioner’s capacity.” Tenn. Sup. Ct. R. 28, § 11(B)(1). The
        question is not whether the prisoner is able to care for himself or herself,
        but whether the prisoner is able to make rational decisions concerning the
        management of his or her post-conviction appeals.

Reid ex rel. Martiniano v. State, 396 S.W.3d 478, 512-13 (Tenn. 2013) (footnotes,
internal quotations, and citations omitted). If a prima facie showing is made, the post-
conviction court will then “schedule a hearing to determine whether the [petitioner] is
competent to manage his [or her] petition.” Id. at 512. At the hearing, the burden is on
the petitioner to prove “that he or she is mentally incompetent by clear and convincing
evidence.” Id. at 494 (citing Tenn. Code Ann. § 40-30-110(f)).

        The Post-Conviction Procedure Act provides in pertinent part:

                This part contemplates the filing of only one (1) petition for post-
        conviction relief. In no event may more than one (1) petition for post-
        conviction relief be filed attacking a single judgment. If a prior petition has
        been filed which was resolved on the merits by a court of competent
        jurisdiction, any second or subsequent petition shall be summarily
        dismissed.

Tenn. Code. Ann. § 40-30-102(c). We agree with the State that, while the Act provides
that a petitioner may file a successive petition if the first petition has not been resolved on
the merits, the Act contemplates that the original petition was timely filed. Here, the
petition was untimely, and the petitioner failed to allege facts to meet her burden of
making out a prima facie case of mental incompetence. The court could have summarily
dismissed the petition on the basis of the statute of limitations without appointing
counsel. See Tenn. Code Ann. § 40-30-106(b). The fact that the post-conviction court
entered a preliminary order appointing post-conviction counsel before it received the
response of the State, which asserted the statute of limitations, did not bar the court from
summarily dismissing the petition as time-barred based on the allegations in the original
pro se petition, without consideration of the amended petition.2 See Tenn. Code Ann. §
        2
           We disagree with the determination of the post-conviction court that the amended second post-
conviction petition could not be considered in determining whether the allegations were sufficient to toll
the statute of limitations. However, we have carefully reviewed the amended petition and conclude that
                                                     5
40-30-109(a) (“The court shall review the case after the district attorney general’s
response is filed. If, on reviewing the petition, the response, files, and records, the court
determines conclusively that the petitioner is entitled to no relief, the court shall dismiss
the petition.”).

       Moreover, even if the allegations of fact in the amended petition were considered,
they would not, in our view, be sufficient to make out a prima facie case of mental
incompetence to toll the statute of limitations. The allegations in the amended petition
are that the petitioner suffered from depression and anxiety, had been placed on suicide
watch, had been diagnosed with post-traumatic stress disorder, and was under continuing
medication and a heightened level of care. Depression, stress, and mood disorders do
not, however, necessarily show that a person is unable to appreciate his or her position
and make rational choices regarding post-conviction proceedings. We conclude,
therefore, that the post-conviction court properly dismissed the petition on the basis that it
was filed outside the statute of limitations and the petitioner failed to make out a prima
facie case of mental incompetence.

                                         CONCLUSION

      Based on the foregoing authorities and reasoning, we affirm the summary
dismissal of the petition as time-barred.


                                                            _________________________________
                                                            ALAN E. GLENN, JUDGE




the additional allegations set out therein were insufficient to toll the statute. Thus, its consideration by the
post-conviction court would not have affected the timeliness of the petitioner’s claims.
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