                      IN THE SUPREME COURT OF TENNESSEE
                              HEARD AT NASHVILLE

                  JOHN PAUL SEALS v. STATE OF TENNESSEE

                  An Appeal from the Criminal Court for Hamblen County
                       No. 98-CR-001     James E. Beckner, Judge



                                  No. E1998-00367-SC-R11-PC



                                                AND




        VIKKI LYNN FRITTS SPELLMAN v. STATE OF TENNESSEE

                     An Appeal from the Circuit Court for Tipton County
                           No. 1957    Jon K. Blackwood, Judge



                                  No. W1998-00849-SC-R11-PC



                                      Decided June 20, 2000


                                      FOR PUBLICATION

We granted review in this consolidated appeal to determine whether mental incompetency tolls the
one-year statute of limitations for filing a post-conviction petition under either a savings provision
or constitutional due process. The trial court dismissed the petitions for being time-barred. The
Court of Criminal Appeals held that constitutional due process requires that the statute of limitations
be tolled while a petitioner is mentally incompetent. We conclude that the statute of limitations is
not tolled by a savings provision but may be tolled by due process concerns where a petitioner is
denied a reasonable opportunity to raise a claim in a meaningful time and manner. We affirm the
judgment of the Court of Criminal Appeals.
Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals Affirmed

ANDERSON, C.J., delivered the opinion of the court, in which DROWOTA , BIRCH, BARKER, and
HOLDER , JJ., joined.

Paul G. Summers, Attorney General & Reporter, and Michael E. Moore, Solicitor General, and Ellen
H. Pollack, Assistant Attorney General, Peter M. Coughlan, Assistant Attorney General, Nashville,
Tennessee, for the appellant, State of Tennessee.

Marti L. Kaufman, Memphis, Tennessee, for the appellees, John Paul Seals and Vikki Lynn Fritts
Spellman.


                                             OPINION

        We granted this consolidated appeal to decide whether under either the general savings
statute set forth in Tenn. Code Ann. § 28-1-106 (1980) or constitutional due process a petitioner’s
mental incompetence will toll the one-year statute of limitations for filing a post-conviction action
under the 1995 Post-Conviction Procedure Act.

       Each of the appellees, John Paul Seals and Vikki Lynn Spellman, alleged in their separate
post-conviction petitions that they were unable to bring their post-conviction claims within one year
from the entry of the trial courts’ judgments due to their mental incompetence. Each trial court
dismissed the petition for being filed after the expiration of the statute of limitations. The Court of
Criminal Appeals reversed, concluding that under our decision in Watkins v. State, 903 S.W.2d 302
(Tenn. 1995), a petitioner’s mental incompetence tolls the statute of limitations.1

       After reviewing the record and applicable authority, we conclude that the savings provision
in Tenn. Code Ann. § 28-1-106 does not toll the one-year statute of limitations but that due process
may require tolling to ensure that a petitioner has a meaningful opportunity to present claims in a
reasonable time and manner. We therefore affirm the judgment of the Court of Criminal Appeals.




       1         In both cases, the Court of Criminal Appeals determined that the petitioners had
satisfied the threshold burden of raising the issue of mental incompetency as it relates to the
statue of limitations. The court recognized that “conclusory allegations” are insufficient to meet
the threshold in this regard.
                                          BACKGROUND
                                          John Paul Seals

         John Paul Seals pled guilty to first-degree murder in December of 1988, and was sentenced
to life imprisonment. Seals later filed a petition for a writ of habeas corpus or in the alternative post-
conviction relief asserting that his guilty plea was not voluntary and knowing and that he was denied
his constitutional right to effective assistance of counsel. The trial court treated the petition as one
for post-conviction relief and dismissed it as time-barred in April of 1994.

        A second post-conviction petition was later filed by “next friend” on behalf of Seals. The
petition alleged that Seals had been mentally incompetent since before his guilty plea and sentence
and that mental incompetence tolls the statute of limitations. The trial court once again dismissed
the petition for being time-barred.

        The Court of Criminal Appeals reversed and remanded after concluding that Seals had
satisfied the threshold burden for asserting mental incompetence and that a hearing was required for
Seals and the State to present evidence as it related to mental incompetence and the tolling of the
statute of limitations. The court said that if the trial court determined that the statute was tolled due
to mental incompetence, it must consider the merits of the issues presented in the petition.

                                        Vikki Lynn Spellman

         Vikki Lynn Spellman pled guilty to first-degree murder in April of 1988, and was sentenced
to life imprisonment. In June of 1989, Spellman filed her first petition for post-conviction relief
alleging ineffective assistance of counsel. Spellman was appointed counsel after she filed her
petition, but the petition was dismissed prior to the evidentiary hearing.

        Spellman, proceeding pro se, filed a second petition for post-conviction relief in December
of 1997, alleging ineffective assistance of counsel at the time of her original guilty plea. She
asserted that she withdrew her first petition because of her “psychological state” at the time and that
she was in “no condition to assist post-conviction counsel in presenting anything in a logical, orderly
fashion to the Court.” She is currently residing in the Lois DeBerry Special Needs Facility. She
stated in her petition that although she is still receiving treatment, she was able to file this second
petition because of her “present, positive psychological health.” The trial court dismissed the
petition in January of 1998, without a hearing after finding that the petition was time-barred.

        The Court of Criminal Appeals determined that Spellman had satisfied the threshold burden
of raising mental incompetence and remanded for a hearing to determine whether tolling of the
statute of limitations was required.

        The State appealed in both cases.




                                                   -3-
                                              ANALYSIS

        We begin by reviewing the history of post-conviction statutes in Tennessee. In Case v.
Nebraska, 381 U.S. 336, 85 S. Ct. 1486, 14 L. Ed. 2d 422 (1965), the United States Supreme Court
recommended that states enact procedures for addressing alleged constitutional errors occurring
during the conviction process to supplement habeas corpus remedies available in federal court. The
Tennessee legislature responded by creating the Post-Conviction Procedure Act in 1967. Burford
v. State, 845 S.W.2d 204, 206 (Tenn. 1992).

        Under the Act, relief was to be granted “when the conviction or sentence [wa]s void or
voidable because of the abridgment in any way of any right guaranteed by the constitution of
[Tennessee] or the Constitution of the United States.” Tenn. Code Ann. § 40-30-105 (1990)
(repealed 1995). Under the original Act, there was no statute of limitations, and a petition could be
filed “at any time after [a petitioner] ha[d] exhausted his appellate remedies and before the sentence
ha[d] expired or ha[d] been fully satisfied.” Tenn. Code Ann. § 40-30-102 (1982) (repealed 1986).

                          Statute of Limitations and the Savings Statute

         In 1986, the legislature enacted a three-year statute of limitations in which petitioners had
to file their claims:

        [a] prisoner in custody under sentence of a court of this state must petition for post-
        conviction relief under this chapter within three (3) years 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.

Tenn. Code Ann. § 40-30-102 (1990) (repealed 1995). By its terms, the statute provided for no
exceptions and contained no specific provisions on tolling.

       In Watkins, however, we addressed the issue of whether mental incompetence tolled the
three-year period pursuant to a general savings provision, which stated:

        If the person entitled to commence an action is, at the time the cause of action
        accrued . . . of unsound mind, such person . . . may commence the action, after the
        removal of such disability, within the time of limitation for the particular cause of
        action, unless it exceed [sic] three (3) years, and in that case within three (3) years
        from the removal of such disability.

Tenn. Code Ann. § 28-1-106. We concluded that post-conviction petitions in this context were to
be considered civil in nature, and we held that the savings statute applied to toll the three-year statute
of limitations in cases where the petitioner was incompetent. Watkins, 903 S.W.2d at 305, 307.

       Our holding in Watkins with respect to the savings statute does not, however, end the
analysis in this case. The legislature enacted the Post-Conviction Procedure Act of 1995, which

                                                   -4-
repealed prior post-conviction statutes and contained several substantial changes. It reduced the time
for filing a petition from three years to one year of the date of the highest state appellate court action,
or, if there was no appeal, one year of the date of final judgment. Tenn. Code Ann. § 40-30-202(a)
(Supp. 1996). The 1995 Act included an anti-tolling provision stating that “[t]he statute of
limitations shall not be tolled for any reason . . . .” Id.2 Moreover, following our decision in
Watkins, the legislature again amended the statute to add the following italicized language:

        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 such
        an action and is a condition upon its exercise.

Tenn. Code Ann. § 40-30-202(a) (1997) (emphasis added); 1996 Tenn. Pub. Acts ch. 995, §§ 1-3.
Accordingly, as the post-conviction statute has evolved, the legislature has limited the time and
opportunity to file petitions seeking relief. See Carter, 952 S.W.2d 417, 419 (Tenn. 1997).

        A basic principle of statutory construction is to ascertain and give effect to legislative intent
without unduly restricting or expanding the intended scope of a statute. Id. at 419; Owens v. State,
908 S.W.2d 923, 926 (Tenn. 1995). This principle requires the Court to examine the language of
a statute and, if unambiguous, apply its ordinary and plain meaning. Parks v. Tennessee Mun.
League Risk Management Pool, 974 S.W.2d 677, 679 (Tenn. 1998); Riggs v. Burson, 941 S.W.2d
44, 54 (Tenn.), cert. denied, 522 U.S. 982, 118 S. Ct. 444, 139 L. Ed. 2d 380 (1997). If the
legislative intent is expressed in a manner devoid of contradiction and ambiguity, there is no room
for interpretation or construction, and courts are not at liberty to depart from the words of the statute.
State v. Pettus, 986 S.W.2d 540, 544 (Tenn. 1999); Hawks v. City of Westmoreland, 960 S.W.2d
10, 16 (Tenn. 1997).

         While the issue with which we are confronted is nearly identical to that in Watkins, we now
face a different statute. In Watkins, the post-conviction procedures afforded an unconditional three
years in which to file a petition pursuant to Tenn. Code Ann. § 40-30-102. The statute neither
contained an anti-tolling provision nor included the enumerated exceptions to the statute of
limitations for later-arising claims. Thus, we concluded that the savings statute did apply to toll the
statute of limitations.

       In contrast, we believe that the language of Tenn. Code Ann. § 40-30-202(a) is unambiguous
and that its meaning and intended effect are clear. The filing time for a petition for post-conviction


        2       The 1995 Act contained only three exceptions to the one-year statue of
limitations: a petition filed within one year of a ruling establishing a new constitutional right
given retroactive application; a petition based on new scientific evidence of actual innocence;
and a petition filed within one year of a judgment invalidating a conviction that was used to
enhance a sentence. Tenn. Code Ann. § 40-30-202(b)(1)-(3).

                                                   -5-
relief is one year from the date of the final action. It is not to be tolled for any reason except those
enumerated in Tenn. Code Ann. § 40-30-202(b). The statute specifically states that the no savings
provision is applicable. Accordingly, we hold that the statute of limitations is no longer tolled by
the savings statute in Tenn. Code Ann. § 28-1-106.

                                             Due Process

         Our conclusion that the one-year statute of limitations for filing a post-conviction petition
is not tolled by the savings provision does not end our analysis. We must also consider whether a
petitioner’s mental incompetence requires tolling the statute of limitations as a matter of
constitutional due process.

          The Fifth Amendment to the United States Constitution states in part that “[n]o person shall
. . . be deprived of life, liberty, or property without due process of law. . . .” U.S. Const. amend. V.
The Fourteenth Amendment to the United States Constitution provides that “[n]o state shall. .
.deprive any person of life, liberty, or property, without due process of law.” U.S. Cont. amend.
XIV. The corresponding provision found in the Tennessee Constitution states that “no man shall
be taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or exiled,
or in any manner destroyed or deprived of his life, liberty or property, but by the judgment of his
peers or the law of the land.” Tenn. Const. art. I, § 8.

        The language of the “due process” provisions in the United States Constitution differs from
the “law of the land” provision found in the Tennessee Constitution. Although the terms on occasion
have been viewed as synonymous, Daugherty v. State, 393 S.W.2d 739, 743 (Tenn. 1965), the
United States Supreme Court’s interpretations of the United States Constitution establish a minimum
level of protection while this Court, as final arbiter of the Tennessee Constitution, is always free to
extend greater protection to its citizens. Doe v. Norris, 751 S.W.2d 834, 838 (Tenn. 1988).

         We have previously recognized that a state has no duty to enact post-conviction procedures
and that the opportunity to collaterally attack constitutional violations occurring in the conviction
process is not a fundamental right during the conviction process. Burford, 845 S.W.2d at 207. We
also have recognized that a state which does enact post-conviction procedures may set up reasonable
procedural requirements, such as a statute of limitations, and that a claim may be terminated “for
failure to comply with a reasonable procedural rule without violating due process rights.” Id. at 208.

         “Due process is flexible and calls for such procedural protections as the particular situation
demands.” Phillips v. State Bd. of Regents, 863 S.W.2d 45, 50 (Tenn. 1993) (citation omitted). The
flexible nature of procedural due process requires an imprecise definition because due process
embodies the concept of fundamental fairness. State v. Barnett, 909 S.W.2d 423, 426 (Tenn. 1995);
State v. Hale, 840 S.W.2d 307, 313 (Tenn. 1992). In determining what procedural protections a
particular situation demands, three factors must be considered: (1) the private interest at stake; (2)
the risk of erroneous deprivation of the interest through the procedures used and the probable value,
if any, of additional or substitute safeguards; and finally, (3) the government’s interest, including the
function involved and the fiscal and administrative burdens that the additional or substitute

                                                  -6-
procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903,
47 L. Ed. 2d 18 (1976); Phillips, 863 S.W.2d at 50.

         In this case, the private interests at stake are the defendants’ opportunities to attack the
convictions and sentences of incarceration on the grounds that the petitioners were deprived of
constitutional rights during the conviction process. The government’s interest is avoiding the
litigation of stale and groundless claims. Burford, 845 S.W.2d at 207. The legislative history of the
post-conviction statute of limitations reveals that the legislature was concerned about allowing
prisoners to assert claims so long after their convictions that witnesses are no longer available or
their memory of the events are affected. The legislature was also concerned with the cost of
allowing the litigation of successive and often fruitless post-conviction claims, including the cost
of transporting prisoners to hearings. Id.

         A petitioner’s interest in collaterally attacking a conviction is not a fundamental right that
deserves heightened due process protection. However, before a state may terminate a claim for
failure to comply with procedural requirements such as statutes of limitations, due process requires
that a potential litigant be provided an opportunity for the “presentation of claims at a meaningful
time and in a meaningful manner.” Id. The test is “whether the time period provides an applicant
a reasonable opportunity to have the claimed issue heard and determined.” Id.

        In Burford, the petitioner contended that the fifty-year persistent offender sentence imposed
upon him for his 1985 robbery conviction was excessive because four of the previous robbery
convictions used to enhance his sentence were set aside by a trial court in 1988. Burford’s post-
conviction claim, filed in 1990, arose after the expiration of the statute of limitations. We concluded
that the three-year statute of limitations set forth in Tenn. Code Ann. § 40-30-102, on it face,
provided a reasonable opportunity for the presentation of post-conviction claims, but that the
application of the statute to Burford’s case violated due process because he did not have a reasonable
opportunity to present his claim in a meaningful time and manner. Burford, 845 S.W.2d at 208.

        We addressed these due process concerns in the Watkins decision, holding that “[e]ven in
the absence of a statute tolling the statute of limitations, application of the statute of limitations to
the facts of this case would violate constitutional due process.” Watkins, 903 S.W.2d at 305-06.
In discussing Burford, we concluded that consideration must be given to the petitioner’s interest of
having an opportunity to attack his conviction based on the deprivation of a constitutional right and
the State’s legitimate interest in preventing the piecemeal litigation of stale and groundless claims.
Id. at 306. We concluded that:

        because a petitioner who was incompetent throughout the limitations period would
        be denied the opportunity to challenge his conviction in a meaningful manner, the
        failure to toll the limitations period would deny such a petitioner a fair and
        reasonable opportunity for the bringing of the [post-conviction] petition, and thus,
        would violate due process.



                                                  -7-
Id. at 307 (emphasis added). In other words, “if the petitioner was mentally incompetent, and
therefore legally incapable, he would be denied any opportunity to assert his constitutional rights in
a post-conviction petition, unless the period of limitations was suspended during his mental
incompetence.” Id. (emphasis added). Accordingly, due process requires that some reasonable
opportunity to assert those rights be afforded.

        We recognize that the Burford inquiry has been clarified in some circumstances. In Sands
v. State, 903 S.W.2d 297 (Tenn. 1995), we said that consideration must be given to whether the
petitioner is raising a claim that has arisen after the statute of limitations has begun to run, i.e., a
“later-arising” claim. Id. at 301. As we later explained in Wright v. State, 987 S.W.2d 26, 28
(Tenn.), cert. denied, __ U.S. __, 120 S. Ct. 81, 145 L. Ed. 2d 69 (1999), a court must:

                (1) determine when the limitations period would normally have begun
                to run; (2) determine whether the grounds for relief actually arose
                after the limitations period would normally have commenced; and (3)
                if the grounds are “later-arising,” determine if, under the facts of the
                case, a strict application of the limitations period would effectively
                deny the petitioner a reasonable opportunity to present the claim.

Id. at 28; see also Caldwell v. State, 917 S.W.2d 662, 665 (Tenn. 1996).

        The “later-arising claim” limitation in Sands reflects the concern that a petitioner who fails
to assert an existing claim, that is, a claim that is not later-arising, in a timely fashion may not expect
due process relief under Burford. This concern is not present in a case where a petitioner fails to
assert a claim within the statute of limitations due to mental incompetence as in Watkins.
Significantly, Watkins makes no mention of Sands and does not limit the due process analysis in
cases involving mental incompetency to later-arising grounds.

        The petitioner in Watkins, like the petitioners in the present case, raised issues challenging
guilty pleas and the ineffective assistance of counsel – issues that were not later-arising. We
nonetheless concluded that a petitioner who was mentally incompetent could not be denied a
reasonable opportunity to raise these claims in a meaningful manner without violating due process.
Thus, we concluded that the mental incompetency, if established, tolled the statute of limitations.
We adhere to that holding in the present case.

       Accordingly, we conclude that while the one-year statute of limitations set forth in Tenn.
Code Ann. § 40-30-202(a) does not violate due process on its face, application of the statute must
not deny a petitioner a reasonable opportunity to raise a claim in a meaningful time and manner.
Thus, a petitioner who is mentally incompetent is denied an opportunity to raise a claim in a
meaningful manner unless the statute of limitations is tolled during the period of mental
incompetence.




                                                   -8-
                                          CONCLUSION

        We have concluded that the one-year statute of limitations in post-conviction actions set out
in Tenn. Code Ann. § 40-30-202(a) is not tolled due to mental incompetence under the savings
provision in Tenn. Code Ann. § 28-1-106. We have further concluded, however, under Watkins, that
due process requires tolling of the statute of limitations where a petitioner is denied the reasonable
opportunity to assert a claim in a meaningful time and manner due to mental incompetence. We
therefore agree with the Court of Criminal Appeals that because both Seals and Spellman met the
threshold burden of raising the issue of mental incompetence, the cases must be remanded for further
proceedings.

       We affirm the judgments of the Court of Criminal Appeals. Costs of the appeals shall be
assessed to the State of Tennessee.




                                                 -9-
