        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs June 28, 2016

                 RUSSELL FREELS v. STATE OF TENNESSEE

               Appeal from the Criminal Court for Washington County
                     No. 40498    Paul G. Summers, Sr., Judge


                 No. E2016-00021-CCA-R3-PC-FILED-JULY 12, 2016


The Petitioner, Russell Freels, appeals the Washington County Criminal Court’s
summary dismissal of his petition for post-conviction relief. The Petitioner contends that
the post-conviction court erred in dismissing his ineffective assistance of trial counsel
claim as having been untimely filed. He argues for the first time on appeal that he is
constitutionally entitled to effective assistance of post-conviction counsel in his first
petition for relief and that due process requires tolling of the statute of limitations.
Discerning no error, we affirm the judgment of the post-conviction court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which ROBERT L.
HOLLOWAY, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Robert L. Sirianni, Jr., Winter Park, Florida, for the Petitioner, Russell Freels.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel;
Anthony Wade Clark, District Attorney General; and Kenneth C. Baldwin, Assistant
District Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

       On April 13, 1995, the trial court entered judgments of conviction against the
Petitioner after he pled guilty to first degree murder and conspiracy to commit first
degree murder. His sentences were aligned concurrently, for a total effective sentence of
life imprisonment without parole, and no direct appeal was filed. Nearly ten years later
on March 17, 2015, the Petitioner filed a post-conviction petition alleging, inter alia, that
he received ineffective assistance of trial counsel. Though no prior post-conviction
petition had been filed, the Petitioner styled his claims as a petition to reopen post-
conviction proceedings, contending that he would have advanced numerous errors made
by trial counsel had he been appointed post-conviction counsel in his previous
proceedings. In addition, he argued that that the limitations period for his petition to
reopen was tolled because Sutton v. Carpenter, 745 F. 3d 787 (6th Cir. 2014), which he
interprets as establishing a constitutional right to effective assistance of post-conviction
counsel, was not released until after the time limit for filing the petition had expired. See
T.C.A. § 40-30-117(a)(1).

       On December 3, 2015, the post-conviction court filed a written order dismissing
the post-conviction petition as time-barred. In its written order, the court determined that
the March 17, 2015 petition was the first post-conviction petition filed by the Petitioner,
rather than a petition to reopen prior post-conviction claims, noting “[the] [P]etitioner
cannot reopen a post-conviction petition that was never filed.” Furthermore, the court
found that the Petitioner failed to identify a previously unrecognized constitutional right
that would except his ineffective assistance of trial counsel claim from the one-year
statute of limitations for a first petition for post-conviction relief. T.C.A. § 40-30-
102(b)(1). The Petitioner now timely appeals.

                                       ANALYSIS

       On appeal, the Petitioner argues that, given the “critical importance of post-
conviction proceedings,” he is constitutionally entitled to the effective assistance of post-
conviction counsel in his first petition alleging ineffective assistance of trial counsel. He
further maintains that due process requires tolling of the limitations period for his
ineffective assistance of trial counsel claim. The State responds that the post-conviction
court properly dismissed the Petitioner’s claims as time-barred and that the Petitioner
waived the issues raised on appeal by failing to raise them in his petition.

        Post-conviction relief is available when a “conviction or sentence is void or
voidable because of the abridgment of any right guaranteed by the Constitution of
Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103. A person in
custody under a sentence of a court of this state must petition for post-conviction relief
within one 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 year of the date on which the
judgment becomes final. Id. § 40-30-102(a). “The statute of limitations shall not be
tolled for any reason, including any tolling or saving provision otherwise available at law
or equity.” Id. Moreover, “[t]ime 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.” Id. If it plainly appears on the face of the post-conviction petition that the
petition was filed outside the one-year statute of limitations or that a prior petition
attacking the conviction was resolved on the merits, the post-conviction court must
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summarily dismiss the petition. Id. § 40-30-106(b). “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.” Id. § 40-30-109(a) (2006).

        Tennessee Code Annotated section 40-30-102(b) provides three exceptions to the
statute of limitations for petitions for post-conviction relief: (1) claims based on a final
ruling of an appellate court establishing a constitutional right not recognized as existing
at the time of trial and given retroactive effect by the appellate courts; (2) claims based
upon new scientific evidence establishing that the petitioner is actually innocent of the
conviction offense; and (3) claims seeking relief from a sentence that was enhanced
because of a previous conviction and the previous conviction was later held to be invalid.
 Id. §§ 40-30-102(b)(1)-(3), -117(a)(1)-(3) (establishing the same requirements for
reopening a post-conviction petition). In addition to the statutory exceptions, due process
may require tolling the statute of limitations in certain circumstances. See Whitehead v.
State, 402 S.W.3d 615, 622-23 (Tenn. 2013); Burford v. State, 845 S.W.2d 204, 108
(Tenn. 1992) (“[D]ue process requires that potential litigants be provided an opportunity
for the presentation of claims at a meaningful time and in a meaningful manner.”) (citing
Long v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982)).

        In the case at bar, it is undisputed that the Petitioner filed his petition well outside
the one-year limitations period. In his petition, he initially averred that he had a right to
effectively toll the statute of limitations for post-conviction relief based on the holding in
Sutton. In Sutton, the Sixth Circuit held that a petitioner filing a federal habeas corpus
petition is not procedurally barred from raising a claim of ineffective assistance of trial
counsel when post-conviction counsel was ineffective for not raising the claim and the
state procedural law made it unlikely for the Petitioner to raise the claim on direct appeal.
Sutton, 745 F.3d at 795-96 (“[I]neffective assistance of post-conviction counsel can
establish cause to excuse a Tennessee defendant’s procedural default of a substantial
claim of ineffective assistance at trial.”). The Petitioner argued that Sutton created a new
constitutional right to effective assistance of post-conviction counsel, thereby tolling the
applicable limitations period and allowing him to reopen the claims purportedly raised in
his previous post-conviction petition. See T.C.A. § 40-30-117(a)(1).

       First, we note that the holding of Sutton is not applicable to the case at bar. As
correctly established by the post-conviction court, the Petitioner’s March 17, 2015
petition was the Petitioner’s first and only petition for post-conviction relief. Therefore,
the Petitioner is precluded from arguing under Sutton that he procedurally defaulted due
to the ineffective assistance of post-conviction counsel in a prior petition for relief,
thereby tolling the statute of limitations. Furthermore, this court has flatly rejected the
proposition that Sutton and its predecessor cases established a constitutional right to
effective assistance of post-conviction counsel. See David Edward Niles v. State, No.
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M2014-00147-CCA-R3- PC, 2015 WL 3453946, at *6-7 (Tenn. Crim. App. June 1,
2015), perm. app. denied (Tenn. Sept. 17, 2015); Michael V. Morris v. State, No. M2015-
01113-CCA-R3-ECN, 2015 WL 9487829, at *2 (Tenn. Crim. App. Dec. 29, 2015)
(memorandum opinion); Demarcus Keyon Cole v. State of Tennessee, No. W2015-
01901-CCA-R3-PC, 2016 WL 2859196 (Tenn. Crim. App. May 11, 2016). Thus, the
Petitioner would not be excepted from the statute of limitations for post-conviction
claims on the basis that a constitutional right was established after the limitations period
had run. See T.C.A. § § 40-30-102(b)(1). Finding no other exception applicable, we
conclude that the post-conviction court correctly dismissed the claims asserted in the
Petitioner’s post-conviction petition as time-barred.

        On appeal, the Petitioner abandons his original arguments and concedes that “there
is no constitutional entitlement to the effective assistance of counsel in a post-conviction
proceeding.” Frazier v. State, 303 S.W.3d 674, 680 (Tenn. 2010) (citing Coleman v.
Thompson, 501 U.S. 722, 756-57 (1991)). Nevertheless, citing Martinez v. Ryan, -- U.S.
-- , 132 S. Ct. 1309 (2012), he asserts that the state and federal constitutions should be
construed to “provide a right to post-conviction counsel to petitioners[’] alleging
ineffective assistance of trial counsel in a first petition for post-conviction relief.” He
further contends that the one-year statute of limitations for post-conviction claims should
be abandoned or, alternatively, tolled on due process grounds, for petitioners’ asserting
claims of ineffective assistance of trial counsel. The State responds that the Petitioner
failed to raise the issues asserted on appeal in his petition for post-conviction relief and
consideration of the issues is therefore waived. We agree. The issues raised on appeal
specifically relate to claims raised in a first petition for post-conviction relief; whereas,
the original arguments contained in the post-conviction petition were predicated on the
Petitioner’s incorrect classification of his petition as one to reopen prior proceedings.
The post-conviction court did not address the arguments raised on appeal and,
accordingly, the issues are waived. See Nix v. State, 40 S.W.3d 459, 464 (Tenn. 2001)
(“[I]t is incumbent upon a petitioner to include allegations of fact in the petition
establishing either timely filing or tolling of the statutory period,” and the “[f]ailure to
include sufficient factual allegations of either compliance with the statute or
[circumstances] requiring tolling will result in dismissal.”); State v. Johnson, 970 S.W.2d
500, 508 (Tenn. Crim. App. 1996) (“Issues raised for the first time on appeal are
considered waived.”); see also Konstantinos Diotis v. State, No. W2011-00816-CCA-R3-
PC, 2011 WL 5829580, at *2 (Tenn. Crim. App. Nov. 11, 2011) (holding that the
petitioner waived consideration of his due process tolling claim by presenting it for the
first time on appeal).

       Waiver notwithstanding, the Petitioner’s arguments are without merit. It is well-
established that a petitioner does not have a constitutional right to the effective assistance
of post-conviction counsel. Frazier, 303 S.W.3d at 680; Stokes v. State, 146 S.W.3d 56,
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60 (Tenn. 2004). There is, however, a statutory right to post-conviction counsel in
Tennessee, see T.C.A. § 40-30-107(b), and the justification for this statutory right “is to
afford a petitioner the full and fair consideration of all possible grounds for relief.”
Frazier, 303 S.W.3d at 680. In furtherance of this purpose, our supreme court requires a
minimum standard of service for all post-conviction counsel. Id.; see Tenn. Sup. Ct. R.
28 § 6(C)(2)-(4). “This statutory right, does not, however, serve as a basis for relief on a
claim of ineffective assistance of counsel in a post-conviction proceeding and does not
include ‘the full panoply of procedural protection that the Constitution requires be given
to defendants who are in a fundamentally different position -- at trial and on first appeal
as of right.’” Frazier, 303 S.W.3d at 680 (citing House v. State, 911 S.W.2d 705, 712
(Tenn. 1995)). This court has declined to establish a right to effective assistance of post-
conviction counsel beyond the minimum requirements of due process covered by statute
simply because the Petitioner is alleging ineffective assistance by trial counsel. See
Michael V. Morris, 2015 WL 9487829, at *2; David Edward Niles, 2015 WL 3452946, at
*6-7. Moreover, though we acknowledge that due process may require tolling the statute
of limitations under certain circumstances, we note that a post-conviction petitioner is
entitled to tolling only upon a showing “(1) that he or she has been pursuing his or her
rights diligently, and (2) that some extraordinary circumstance stood in his or her way
and prevented timely filing.” Bush v. State, 428 S.W.3d 1, 22 (Tenn. 2014) (citing
Whitehead, 402 S.W.3d at 631). Importantly, due process tolling “‘must be reserved for
those rare instances where—due to circumstances external to the party’s own conduct—it
would be unconscionable to enforce the limitation period against the party and gross
injustice would result.’” Id. (quoting Whitehead, 402 S.W.3d at 631-32). Here, the
circumstances do not warrant tolling on due process grounds, as the Petitioner fails to
articulate any legitimate explanation for the nearly ten-year delay in filing his first post-
conviction petition. Accordingly, he is not entitled to relief.

                                  CONCLUSION

       Discerning no error, we affirm the judgment of the post-conviction court.



                                                   _________________________________
                                                   CAMILLE R. McMULLEN, JUDGE




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