                                                                                           06/07/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs April 11, 2017

               EDWARD HOOD, JR. v. STATE OF TENNESSEE

                 Appeal from the Circuit Court for Henderson County
                           No. 08059-3 Kyle Atkins, Judge
                      ___________________________________

                            No. W2016-01998-CCA-R3-PC
                        ___________________________________

The petitioner, Edward Hood, Jr., appeals the denial of his petition for post-conviction
relief as untimely. The petitioner asserts the applicable statute of limitations for his claim
should be tolled as he was incompetent during the filing period. After our review of the
record, briefs, and applicable law, we affirm the denial of the petition.

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

J. ROSS DYER, J., delivered the opinion of the court, in which ALAN E. GLENN and
TIMOTHY L. EASTER, JJ., joined.

Samuel W. Hinson (on appeal) and Jack S. Hinson (at hearing), Lexington, Tennessee,
for the appellant, Edward Hood, Jr.

Herbert H. Slatery III, Attorney General and Reporter; Courtney N. Orr, Assistant
Attorney General; Jerry Woodall, District Attorney General; and Nina Seiler, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                                          FACTS

       This post-conviction appeal stems from the sexual crimes the petitioner committed
against his minor daughter in 2007. The petitioner was indicted for one count of sexual
battery, two counts of rape, and two counts of incest. Prior to trial, on February 6, 2008,
Dr. Richard K. Drewery, a clinical psychologist, evaluated the petitioner to determine his
competency. Dr. Drewery determined the petitioner was “competent to stand trial but
suffered from depressive disorder.”
       The petitioner went to trial, was convicted of two counts of rape of a child and two
counts of incest, and appealed.1 In affirming the petitioner’s convictions, this Court
detailed the underlying facts of the petitioner’s case, as follows:

             C.L., the victim in this case, testified that she was eleven years old
      when the first crime in this case occurred. She stated that on February 24,
      2007, her father, [the petitioner], entered her room and took off his clothes.
      He then walked over to her bed, took her pajamas off, got on top of her, and
      penetrated her vagina with his penis. Before leaving her room, [the
      petitioner] told the victim, “If you say anything[,] I’m going to hurt you.”
      The victim stated that she remembered the crime occurring on February 24
      because it was close to her mother’s birthday on February 23.

             On July 28, 2007, the victim stated that her father had sexual
      intercourse with her in the same manner as on February 24, 2007. She
      remembered the date that this second crime occurred because it was close
      to her birthday on July 20. She said she later told her mother about these
      crimes, but she and her mother did not immediately report these crimes to
      the police. The victim said that she and her mother reported the crimes to
      the police some time in December when her father was no longer living
      with them. The victim said that she did not immediately tell her mother
      about the February 24, 2007 crime because she was scared. She could not
      explain why she and her mother did not contact the police regarding the
      crimes sooner. On cross-examination, the victim denied allowing boys into
      her room through her window.

              Landon Delaney testified that he was a correctional officer at the
      Henderson County Jail in 2007. On December 26, 2007, during a random
      search of [the petitioner’s] cell, Delaney found a note written by [the
      petitioner], which stated, “I, Ed Hood, fingered and [f––––] my youngest
      child, [the victim], and said some sex-related things to [the victim’s] friend,
      [K.B.]. She and [the victim] were talking about sex and having a
      threesome. I said I wanted to see that. Signed, Ed Hood.” Delaney said
      that he removed the note from [the petitioner’s] cell and gave it to the jail
      sergeant, Lelani Murphy. Although [the petitioner] never reported a fight
      while he was in jail, Delaney remembered [the petitioner] having a black
      eye at some point during his incarceration. He said [the petitioner] never
      disclosed who had given him the black eye and never wanted to answer any
      questions about it. Delaney stated that it was unusual for inmates to write

      1
       The sexual battery charge was dismissed prior to trial.
                                                 -2-
confessions and that [the petitioner’s] note was the only confession that he
had ever found at the jail.

       Justin Wallace, an investigator with the Henderson County Sheriff’s
Department, testified that [the petitioner] asked to speak with him on
December 26, 2007, regarding the note that was found in his cell.
Investigator Wallace gave [the petitioner] his Miranda rights, [the
petitioner] signed a written waiver of these rights, and then [the petitioner]
gave the following statement:

              I, Ed Hood, did advise Investigator Wallace that there
       was a possibility that while I was messed up on pills that I
       could have had sexual relations with my daughter, [the
       victim]. I also advised him that while my daughter was on
       the phone with [K.B.] I overheard them talking about having
       a threesome. I advised [K.B.] that I would like to see that
       when she was eighteen.

        Donna Heatherington, a lieutenant with the Lexington Police
Department, testified that the victim and the victim’s mother initially
reported the crimes to her in December 2007. She then set up a forensic
interview for the victim at the Carl Perkins Center. Although she attempted
to talk to [the petitioner] about these crimes, he refused to talk to her. She
said that she did not interview the victim’s sister, K.P., because she was not
living in the home at the time that these crimes occurred. Lieutenant
Heatherington stated that a rape kit was not conducted on the victim
because so much time had passed since the crimes were committed.
Following Lt. Heatherington’s testimony, the State rested.

       The defense recalled the victim to the stand. During questioning by
defense counsel, the victim acknowledged telling a forensic interviewer that
her father had never sexually abused her. The victim said she told the
interviewer that her father was innocent because she did [sic] want her
father to get into trouble and because she was afraid of her father. She
admitted that she made this statement regarding her father’s innocence after
her father was arrested.

       Robin Reddick, the victim’s aunt and [the petitioner’s] sister, stated
that the victim had lived with her for approximately a month and a half.
Reddick stated that she did not find the victim to be an honest, truthful
child.
                                    -3-
      [V. W.], the victim’s cousin, testified that the victim told her at a
Christmas party that “she lied about her daddy’s case and misse[d] her
daddy.” Westerfield said that there were no adults present when the victim
made this statement to her.

       Lelani Murphy, the jail administrator, testified that incident reports
are generated when a prisoner receives a black eye while incarcerated. She
said that she did not recall [the petitioner] having a big black eye but did
remember him having a “little bit of a little thing right here[.]” She stated
that the jail records did not contain any incident reports regarding [the
petitioner]. Murphy said that there are always two jailers present and that
these jailers would be able to hear an altercation or see an altercation on the
cameras, which are set up to monitor the jail cells.

        Brenda Riley, [the petitioner’s] mother and the victim’s
grandmother, testified that [the petitioner’s] face was red, he appeared as
though he were in pain, and he looked as if someone had “been hitting him
in the face” at his court appearance in early January 2008. Riley opined
that the victim was not a truthful child.

       [The petitioner] denied committing the crimes in this case. He stated
that the victim was a “daddy’s girl” when she was younger; however, he
stated that not too long ago he had called the police because C.L had
become “unruly.” He said that he sometimes had problems getting the
victim to behave properly.

        [The petitioner] stated that he was assaulted by other inmates while
he was incarcerated. He also stated that the inmates in his cell forced him
to write the note that was discovered during the random search of his cell.
He said that these inmates gave him two black eyes, cracked his ribs, and
“busted” his head and lip. [The petitioner] said that he reported his injuries
to a jail officer and to the jail nurse.

        [The petitioner] stated that he did not recall asking to speak to
Investigator Wallace. He said that he did not know the names of any of the
investigators other than Investigator Heatherington, who investigated his
case. He stated that he wrote the note because he “was already getting beat
up on a daily basis” after the other inmates discovered his charges. He said
that these inmates forced him to use the specific words in the note.

                                     -4-
              On cross-examination, [the petitioner] said that he was surprised to
       discover that the victim had no disciplinary problems at school. He also
       acknowledged that the victim’s grades had improved since she no longer
       lived with him. [The petitioner] claimed that he yelled for help and banged
       on the doors during the inmate assaults, but the jailers in the front never
       heard him. [The petitioner] said that Officer Meggon was the only jailer
       that he told about what was happening to him, but he never told her the
       names of the individuals who were injuring him. He also told his family
       about the assaults. [The petitioner] said that although the inmates in his cell
       threatened to sexually assault him, they never actually sexually assaulted
       him.

              Shannon Hood, the victim’s mother, testified that she gave a
       statement to Lieutenant Heatherington regarding the crimes [the petitioner]
       committed against her daughter. She stated that [the petitioner] had
       become slightly more strict with the victim just before the victim made the
       sexual abuse allegations against him. During cross-examination by the
       State, Ms. Hood admitted that she was aware that [the petitioner] was
       committing these crimes against their daughter but did not tell the police
       immediately.      However, Ms. Hood said that she told Lieutenant
       Heatherington that she failed to contact the police immediately regarding
       [the petitioner’s] crimes. She said that her failure to immediately contact
       the police about these crimes was one of the main reasons that the victim
       was currently living with a foster family instead of with her. Ms. Hood said
       that she knew [the petitioner] was committing these crimes because she
       “heard moaning” when [the petitioner] would go into the victim’s room.
       She said that [the petitioner] would stay in the victim’s room for thirty
       minutes to an hour. She claimed that she did not contact the police because
       she “was scared.”


State v. Edward L. Hood, No. W2009-02501-CCA-R3-CD, 2010 WL 5054422, at *1-3
(Tenn. Crim. App. Dec. 6, 2010), perm. app. denied (Tenn. April 14, 2011). For his
convictions, the trial court imposed an effective sentence of forty-eight years.

       On July 15, 2014, the petitioner filed a pro se petition for post-conviction relief
alleging, along with his post-conviction claims, that the statute of limitations for his
claims should be tolled due to his incompetence. The State responded, arguing the
petitioner’s claims were time-barred. The State asserted the petitioner’s one-year statute
of limitations expired on April 14, 2012, one year after our supreme court denied his
application to appeal on April 14, 2011. Further, the State argued the petitioner “failed to
                                            -5-
submit any factual allegations to support the contention that he is mentally incompetent,”
and the petitioner’s post-conviction claims did not warrant relief.

       Despite the State’s argument, the trial court appointed present counsel and
ordered, upon agreement of the parties, a mental evaluation of the petitioner to determine
his competency. The trial court specifically ordered the evaluation to “determine whether
[the petitioner’s] mental disease, disorder or defect, if any, affected his ability to file his
post conviction [p]etition within the statu[t]e of limitations period.” Dr. Drewery again
evaluated the petitioner and testified to the petitioner’s competency at an evidentiary
hearing on July 8, 2016.

        At the hearing, Dr. Drewery discussed his findings subsequent to the court-ordered
forensic evaluation of the petitioner performed on July 20, 2015. In reaching his
conclusions, Dr. Drewery reviewed his pre-trial examination of the petitioner, the
petitioner’s treatment records from the Whiteville Correctional Facility, and a
psychological evaluation performed by Dr. Michael Guinle on July 17, 2002, in support
of the petitioner’s application for disability benefits. Relying on these records and his
post-trial evaluation of the petitioner, Dr. Drewery opined that the petitioner was
competent but suffered from “significant learning disabilities” and depressive disorder.

       Dr. Drewery explained his post-trial competency determination in detail. First,
Dr. Drewery reiterated his pre-trial competency findings, noting that the petitioner’s
competency assessment had not changed. He explained that at the time of trial, the
petitioner suffered from depressive disorder, which he classified as a mental disease, but
was not psychotic:

               I suggested bipolar disorder, which is a form of depressive disorder.
       And I mention the history of past alcohol addiction, which [the petitioner]
       says is in remission. I said [the petitioner] might possibly have borderline
       intellectual functioning since he gave a history of special education.
       However, [the petitioner’s] intellectual problems were not sufficient to
       prevent him from being competent to stand trial.

As it related to the petitioner’s competency, Dr. Drewery stated the petitioner’s
depressive disorder could affect the petitioner’s initiative regarding the legal process. Dr.
Drewery testified that the petitioner maintained a verbal I.Q. of 67 and operated at a
third-grade reading level. Despite the petitioner’s I.Q. score falling “at the high end of
mental retardation,” Dr. Drewery did not “suspect[] significant retardation” on behalf of
the petitioner. Rather, Dr. Drewery testified that “in terms of practical learning, he’s had
experiences in which he could perhaps go beyond the third grade level.”

                                             -6-
        Dr. Drewery opined that while “there might be some impairment involved” as a
result of his low I.Q. and depressive disorder, those issues would not prevent the
petitioner from understanding his legal position or his ability to make rational choices.
He explained that the petitioner could make decisions on his own if provided the
appropriate information. When asked for clarification by the court, Dr. Drewery
confirmed that the petitioner’s competency had not changed from his pre-trial state, and
that his depressive disorder has not affected “his capacity to function in this lawsuit.”

       The petitioner also testified at the competency hearing. He explained that he hired
both trial and appellate counsel to represent him in this case. He understood he was
convicted at trial, and that his convictions were affirmed on appeal. The petitioner stated
that he knew he could file a post-conviction petition, and began the process twice, first at
the Northwest Correctional Complex and then approximately five years ago when he was
transferred to the Whiteville Correctional Facility. The petitioner explained that
“[p]robably about six months” after he was transferred, he met with legal aides to discuss
his post-conviction petition. The petitioner also stated he was placed in special education
classes in third grade, and he struggles with reading and writing.

      The post-conviction court filed an order dismissing the petition as untimely on
September 1, 2016. In the order, the court stated:

   (1) There has not been a sufficient showing that [the] [p]etitioner is
       incompetent, nor that he was incompetent at the time the statute of
       limitations passed for the filing of a petition for post-conviction.

   (2) There has not been a sufficient showing that [the] [p]etitioner suffers from a
       mental disease or defect that prevents him from understanding his legal
       position and the options available to him, or from making a rational choice
       among his options.

   (3) [The] [p]etitioner testified that prior to the statute of limitations expiring for
       [the] [p]etitioner to file a post-conviction petition, [the] [p]etitioner was
       given notice of the opportunity to file a petition by a legal aid
       representative, while incarcerated in the Tennessee Department of
       Corrections at Tiptonville.

This appeal followed.

                                         ANALYSIS



                                             -7-
       On appeal, the petitioner claims he is entitled to due process tolling of his post-
conviction statute of limitations arguing his petition was untimely filed due to his
incompetency. However, as argued by the State, no facts exist to support due process
tolling of the one-year statute of limitations on the basis of the petitioner’s alleged
incompetency. Accordingly, the post-conviction court’s order dismissing the petition as
time-barred must be upheld.

        A post-conviction petitioner has one year from “the date of the final action of the
highest state appellate court” in which to file a petition for relief. Tenn. Code Ann. § 40-
30-102(a). “Time is of the essence of the right to file a petition for post-conviction
relief.” Id. Untimely filing of a post-conviction petition extinguishes a petitioner’s post-
conviction claims. Id.

       The Tennessee Supreme Court has outlined limited circumstances which call for
due process tolling of untimely post-conviction petitions. One such circumstance allows
a petitioner to prove his post-conviction petition was untimely due to mental
incompetency. See Seals v. State, 23 S.W.3d 272, 277-80 (Tenn. 2000). In order to
determine the petitioner’s mental competency, our supreme court applies the standard and
procedure found in Tennessee Supreme Court Rule 28 Section 11, which seeks to
determine “whether the petitioner possesses the present capacity to appreciate the
petitioner’s 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; see Reid ex rel. Martiniano v. State, 396 S.W.3d 478 (Tenn.
2013).

        To successfully assess a petitioner’s competency, our supreme court advised that
“the trial court should employ the three-step Rumbaugh test” which asks:

              (1) Is the person suffering from a mental disease or defect?

               (2) If the person is suffering from a mental disease or defect, does
       that disease or defect prevent him from understanding his legal position and
       the options available to him?

              (3) If the person is suffering from a mental disease or defect which
       does not prevent him from understanding his legal position and the options
       available to him, does that disease or defect, nevertheless, prevent him from
       making a rational choice among his options?



                                           -8-
              If the answer to the first question is no[;] the court need go no
       further, the person is competent. If both the first and second questions are
       answered in the affirmative, the person is incompetent and the third
       question need not be addressed. If the first question is answered yes and
       the second is answered no, the third question is determinative; if yes, the
       person is incompetent, if no, the person is competent.

Reid ex rel. Martiniano, at 500-01 (quoting Rumbaugh v. Procunier, 753 F.2d 395, 398-
99 (5th Cir. 1985).

        It is understood that “mental illness is not the equivalent of mental incompetence.”
State v. Nix, 40 S.W.3d 459, 463 (Tenn. 2001). Thus, “[a] petitioner seeking to toll the
statute of limitations due to mental incompetence ‘must make a prima facie showing that
[he] is incompetent by submitting affidavits, depositions, medical reports, or other
credible evidence that contain specific factual allegations showing the petitioner’s
incompetence.’” Jefferson Lawton Freeman v. State, No. W2014-00605-CCA-R3-PC,
2015 WL 176536, at *2 (Tenn. Crim. App. Jan. 14, 2015) (quoting Reid ex rel.
Martiniano v. State, 396 S.W.3d 478, 512-13 (Tenn. 2013) (internal quotations omitted).
Absent sufficient facts establishing a petitioner is entitled to due process tolling, an
untimely petition must be dismissed. Eddie Williams, Jr. v. State, No. W2011-00202-
CCA-R3-PC, 2011 WL 2410364, at *1-2 (Tenn. Crim. App. June 9, 2011).

       Here, the record shows that the statute of limitations for the petitioner’s post-
conviction claim expired on April 14, 2012, and his petition was not filed until July 15,
2014. Therefore, the petition is patently time-barred. In reviewing the petitioner’s
competency claim, we are unable to find any facts in the record to support due process
tolling of the statute of limitations. Rather, the facts established at the competency
hearing show the petitioner was competent before, during, and after trial, including the
time in which the petitioner had to file his post-conviction claims.

       At the hearing, Dr. Drewery testified that the petitioner remains competent to
navigate the complex legal landscape he has faced since trial. Dr. Drewery
acknowledged that the petitioner suffers from learning deficiencies and depressive
disorder; however, he opined that these impairments did not affect the petitioner’s ability
to timely file his post-conviction petition. Dr. Drewery summarized his conclusions in
his forensic evaluation of the petitioner, as follows:

               It is obvious from his answers to the standard established
       competency questions that he retains the competency that was established
       when he was evaluated on a pretrial basis. In my opinion, the [petitioner],
       still possesses the present capacity to make rational choices with respect to
                                           -9-
       continuing or abandoning in further litigation. His capacity is not
       substantially affected by his depression. In like manner, I do not believe
       that his condition has affected his ability to file this post conviction petition
       within the statute of limitations.


The record shows the petitioner’s depressive disorder did not affect his ability to file the
post-conviction petition within the applicable statute of limitations.

        The petitioner’s testimony bolstered Dr. Drewery’s assessment of the petitioner’s
competency. At the hearing, the petitioner detailed his participation in his legal
proceedings over the past ten years. The petitioner explained he hired attorneys for his
trial and appeal, he knew he could file a post-conviction petition, and he initiated post-
conviction petitions in two different correctional facilities. Though the petitioner testified
he was not provided information regarding the post-conviction process, his testimony
proves otherwise.

       Guided by Reid ex rel. Martiniano, we note the petitioner cannot meet the
incompetency standard required of him. While Dr. Drewery testified that the petitioner
suffers from a mental disease, depressive disorder, he also specifically testified that the
petitioner’s depressive disorder does not “prevent him from understanding his legal
position and the options available to him.” As such, the petitioner cannot satisfy the
second Rumbaugh prong and cannot show he was incompetent during the filing period.
The petition lacks sufficient facts to warrant due process tolling of the petitioner’s stale
post-conviction claims, and the petitioner is not entitled to relief.

                                      CONCLUSION

      Based upon the foregoing authorities and reasoning, the judgment of the post-
conviction court is affirmed.


                                               ____________________________________
                                               J. ROSS DYER, JUDGE




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