         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                                  September 20, 2005 Session

               WILLIAM BINKLEY v. STATE OF TENNESSEE
                 Direct Appeal from the Circuit Court for Rutherford County
                         No. F-54844 James K. Clayton, Jr., Judge



                   No. M2005-00988-CCA-R3-PC - Filed November 18, 2005


The petitioner, William Binkley, was convicted by a Rutherford County Circuit Court jury of
attempted first degree murder and reckless endangerment, and the trial court sentenced him to an
effective twenty-five-year sentence. Subsequently, the petitioner filed a petition for post-conviction
relief, claiming that he received the ineffective assistance of trial counsel. After an evidentiary
hearing, the post-conviction court denied post-conviction relief, and the petitioner appealed. The
State argues that the appeal should be dismissed because the petitioner filed his post-conviction
petition outside the one-year statute of limitations. We conclude that the case should be remanded
in order for the post-conviction court to determine whether the petition was filed outside the one-year
statute of limitations. Regarding the petitioner’s ineffective assistance of counsel claim, we hold that
the post-conviction court properly ruled that the petitioner did not receive the ineffective assistance
of counsel.

                   Tenn. R. App. P. 3 Appeal as of Right; Case Remanded.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which DAVID H. WELLES and J.C.
MCLIN , JJ., joined.

John H. Baker, Murfreesboro, Tennessee, for the appellant, William Binkley.

Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General;
William C. Whitesell, Jr., District Attorney General; and Trevor H. Lynch, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

                                      I. Factual Background

       This case arose from the petitioner’s shooting his estranged girlfriend while their young son
stood nearby. A jury convicted the petitioner of attempted first degree murder and reckless
endangerment, and the trial court sentenced him to consecutive sentences of twenty-three years and
two years, respectively. The appellant appealed, and this court affirmed the convictions. See State
v. William Binkley, No. M2001-00404-CCA-R3-CD, 2002 WL 517138 (Tenn. Crim. App. at
Nashville, Apr. 5, 2002), perm to appeal denied, (Tenn. 2002). Subsequently, the petitioner filed a
pro se petition for post-conviction relief, claiming that he received the ineffective assistance of trial
counsel and that he was unable to assist with his defense. The post-conviction court appointed
counsel to amend the petition.

        At the evidentiary hearing, the petitioner testified that he was arrested for shooting the victim
on March 2, 1999, and remained in jail for over two years. During that time, he was prescribed the
psychological medications Celexa, Haldol, and Cogentin. The petitioner was supposed to take one
dose of Celexa per day, but the jailers gave him the medication two or three times per day. The
petitioner asked his trial attorney if he should be taking the pills, and his attorney told him to take
them. The petitioner stated that he never saw a doctor while he was in jail, that the medications
made him not want to remember anything, and that he felt “drugged up” while he was taking the
medicine. When the petitioner was transferred to the Department of Correction, he stopped taking
the medication and began remembering the crimes. The petitioner said that he testified at trial that
he did not remember the crimes but that he now remembered driving to the victim’s home and
shooting her. He said that he pointed the gun at the victim and pulled the trigger but that he did not
know the gun was cocked.

          The petitioner testified that his trial attorney met with him in jail three times and that they
discussed a diminished capacity defense. The petitioner testified at trial, but his attorney did not
prepare him to testify. Before the shooting, the petitioner had been treated by Dr. Alex Fider, a
psychiatrist, but the petitioner’s attorney did not have Dr. Fider testify at trial. The petitioner stated
that Dr. Fider should have testified about how his medications affected him. He said that during the
trial, a female juror saw him in a stairway outside the courtroom and that he was wearing shackles.
He said that he told his attorney about the incident and that his attorney told him it was “no big
deal.” He stated that his attorney did not prepare him to testify at his sentencing hearing, that they
did not discuss whether any witnesses would testify at the hearing, and that his attorney told him he
would probably receive a twelve-year sentence.

          On cross-examination, the petitioner testified that he did not remember his trial testimony.
However, he acknowledged that he remembered asking his attorney about his medication and telling
his attorney that a juror saw him in the stairway. He acknowledged that during a pretrial hearing,
two doctors, including Dr. Fider, testified about his competency. He stated that although he testified
at trial that he did not remember anything about the crimes, he now remembered the shooting and
did not intend to kill the victim.

        The petitioner’s trial attorney testified that the petitioner never complained about his
medication and was always polite and coherent. He said that they discussed the facts of the case but
that the petitioner did not remember entering the victim’s house and shooting her. A mental
evaluation was conducted on the petitioner, and the petitioner’s attorney interviewed the two doctors,
including Dr. Fider, who had treated the petitioner. The attorney said that he did not think the


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petitioner knew what the petitioner was doing on the day of the crimes but that the trial court ruled
the petitioner’s doctors could not testify about a possible diminished capacity defense. He said that
he decided not to call Dr. Fider to testify at the petitioner’s trial. He did not remember the petitioner
telling him that a juror had seen the petitioner in shackles outside the courtroom, and he stated that
if the petitioner had told him about it, he would have brought it to the court’s attention. He said that
no doctors testified at the petitioner’s sentencing hearing because the doctors had testified in a
pretrial hearing and the hearing was part of the record. He said that at the sentencing hearing, the
trial court made it clear that it did not need anymore proof regarding the petitioner’s mental capacity.
On cross-examination, the petitioner’s trial attorney testified that he argued the petitioner’s
diminished mental capacity as a mitigating factor at the sentencing hearing. He stated that he did
not tell the petitioner that the petitioner would receive a twelve-year sentence.

        In denying the petition, the trial court ruled that there was nothing the petitioner’s trial
attorney could have done to correct the dose of the petitioner’s medication. Moreover, the trial court
noted that during the petitioner’s psychiatric evaluation, the petitioner did not show he was having
any problems with his medicine. The trial court ruled that the petitioner’s attorney adequately
prepared him to testify. Regarding the attorney’s failure to argue that the petitioner’s mental
condition mitigated his sentences, the trial court stated that “the Court knew of his mental health
questions prior to that since that was brought in by reference into the sentencing hearing.” Regarding
a juror’s seeing him in shackles, the trial court stated that there was no evidence the event actually
occurred, demonstrating that the trial court did not believe the petitioner’s testimony. The trial court
denied the petition for post-conviction relief, and the petitioner appeals.

                                              II. Analysis

                                       A. Statute of Limitations

        The State claims for the first time on appeal that this court does not have jurisdiction over
the petitioner’s case because he filed his post-conviction petition outside the one-year statute of
limitations provided in Tennessee Code Annotated section 40-30-102(a). The State contends that
the one-year period for filing the petition began to run on November 4, 2002, when the Tennessee
Supreme Court denied permission to appeal. The State also contends that the petition was filed
outside the statute of limitations because the circuit court clerk’s stamp on the petition shows that
it was filed on November 10, 2003.

        Under Tennessee Code Annotated section 40-30-102(a), a petitioner 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 was taken. Pursuant to Tennessee Code Annotated section 40-30-102(b),
a court does not have jurisdiction to consider a petition for post-conviction relief if it was filed
outside the one-year statute of limitations unless (1) the claim in the petition is based upon a final
ruling of an appellate court establishing a constitutional right that was not 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


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offense or offenses for which the petitioner was convicted; or (3) the claim 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. The statute of limitations may also be tolled
where application of the one-year period would offend principles of due process. See Burford v.
State, 845 S.W.2d 204, 208-09 (Tenn. 1992). The “one-year statutory period is an element of the
right to file a post-conviction petition and . . . is not an affirmative defense that must be asserted by
the State.” State v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001). The Post-Conviction Procedure Act
imposes an affirmative duty on post-conviction courts to dismiss petitions “[i]f it plainly appears
from the face of the petition, any annexed exhibits or the prior proceedings in the case that the
petition was not filed . . . within the time set forth in the statute of limitations.” Tenn. Code Ann.
§ 40-30-106(b).

       In the instant case, the Tennessee Supreme Court denied the petition to appeal on November
4, 2002. The State claims that the petition for post-conviction relief was filed on November 10,
2003, the date that it is stamped “filed” by the clerk’s office. However,

                [i]f papers required or permitted to be filed . . . are prepared by or on
                behalf of a pro se petitioner incarcerated in a correctional facility and
                are not received by the clerk of the court until after the time fixed for
                filing, filing shall be timely if the papers were delivered to the
                appropriate individual at the correctional facility within the time fixed
                for filing.

Tenn. Sup. Ct. R. 28 § 2(G). Therefore, the date stamped on the face of a petition for
post-conviction relief is not necessarily the date which determines whether the petition was timely
filed, and the question becomes whether the petitioner delivered his petition to the appropriate
individual at the correctional facility on or before November 4, 2003.

        The petition for post-conviction relief reflects that the petitioner signed the petition in the
presence of a notary on November 3, 2003. However, the petition states that “it is being mailed on
11/5/03.” There is nothing in the record to indicate when the petitioner delivered the petition to
prison authorities for filing. We note that in a letter, written by the petitioner to the circuit court
clerk and dated November 8, 2003, the petitioner stated, “Please find enclosed one (1) original and
one (1) copy of the Petitioner’s Pro-se filing of Post-Conviction Petition,” indicating that the petition
was still in the petitioner’s possession on November 8, 2003. In any event, because the issue was
not raised in the post-conviction court and the record indicates that the statute of limitations was
never an issue, we are unable to determine whether the post-conviction court had jurisdiction.
Therefore, we must remand the case for an evidentiary hearing in order for the post-conviction court
to determine when the petition was delivered to the appropriate authorities and if the post-conviction
court had jurisdiction to consider the petition. This timeliness issue must be resolved before the
case can be adjudicated on the merits.                See Antonio L. Saulsberry v. State, No.
W2002-02538-CCA-R3-PC, 2004 WL 239767, at *1 (Tenn. Crim. App. Feb. 9, 2004), perm. to


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appeal denied, (Tenn. 2004). Nevertheless, we will address the issues raised by the petitioner due
to the possibility of further appeal.

                               B. Ineffective Assistance of Counsel

        The petitioner claims that he received the ineffective assistance of counsel because his trial
attorney failed to present evidence of his mental condition at his sentencing hearing. He contends
that such evidence would have shown that he was suffering from a serious mental condition and
would have supported the trial court’s application of mitigating factor (8), that the petitioner “was
suffering from a mental or physical condition that significantly reduced [his] culpability for the
offense.” Tenn. Code Ann. § 40-35-113(8). The petitioner also contends that his attorney failed to
prepare him adequately for trial, failed to do something about his taking too much medication, and
failed to object or move for a mistrial when a juror saw the petitioner wearing shackles in the
courthouse stairwell.

        To be successful in his claim for post-conviction relief, the petitioner must prove all factual
allegations contained in his post-conviction petition by clear and convincing evidence. See Tenn.
Code Ann. § 40-30-110(f). “‘Clear and convincing evidence means evidence in which there is no
serious or substantial doubt about the correctness of the conclusions drawn from the evidence.’”
State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C. Toof & Co.,
833 S.W.2d 896, 901 n.2 (Tenn. 1992)). Issues regarding the credibility of witnesses, the weight and
value to be accorded their testimony, and the factual questions raised by the evidence adduced at trial
are to be resolved by the post-conviction court as the trier of fact. See Henley v. State, 960 S.W.2d
572, 579 (Tenn. 1997). Therefore, we afford the post-conviction court’s findings of fact the weight
of a jury verdict, with such findings being conclusive on appeal absent a showing that the evidence
in the record preponderates against those findings. Id. at 578.

        A claim of ineffective assistance of counsel is a mixed question of law and fact. See State
v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s findings of
fact de novo with a presumption that those findings are correct. See Fields v. State, 40 S.W.3d 450,
458 (Tenn. 2001). However, we will review the post-conviction court’s conclusions of law purely
de novo. Id. “To establish ineffective assistance of counsel, the petitioner bears the burden of
proving both that counsel’s performance was deficient and that the deficiency prejudiced the
defense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996) (citing Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). In evaluating whether the petitioner has met this
burden, this court must determine whether counsel’s performance was within the range of
competence required of attorneys in criminal cases. See Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975).

       The petitioner claims that he received the ineffective assistance of counsel because his trial
attorney failed to present evidence about his mental health at his sentencing hearing in order to
mitigate his sentences. However, the post-conviction court ruled that it had been aware at the



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sentencing hearing of the petitioner’s mental condition.1 During the sentencing hearing, the trial
court stated that it believed the appellant “had mental problems that may have added to this,”
supporting the post-conviction court’s conclusion that it had considered the appellant’s mental
condition during sentencing. Moreover, our review of the sentencing hearing transcript shows that
the trial court applied several enhancement factors to the appellant’s sentences. In light of the
application of these factors, the petitioner has failed to show that his sentences would have been
different even if the trial court had applied mitigating factor (8).

        The petitioner also claims that his attorney failed to prepare him adequately for trial.
However, the attorney testified that he and the petitioner discussed the facts of the case, and the trial
court ruled that the attorney adequately prepared the petitioner to testify. We see nothing in the
record to preponderate against the trial court’s finding. As for the petitioner’s medication, the trial
court ruled that the petitioner’s attorney could not have done anything to correct the petitioner’s
medication. We note that the petitioner’s trial attorney testified that the petitioner never complained
to him about his medication and that the petitioner was always coherent. The trial court obviously
accredited the attorney’s testimony over that of the petitioner. Finally, the trial court did not believe
the petitioner’s claim that a juror saw him wearing shackles in the stairwell. The petitioner has failed
to show that his attorney rendered deficient performance or that he was prejudiced by any deficiency.

         We note that the petitioner also claims that the trial court improperly enhanced his sentences
in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004). In Blakely, the Supreme
Court held that

                   the “statutory maximum” for Apprendi [v. New Jersey, 530 U.S. 466,
                   120 S. Ct. 2348, (2000),] purposes is the maximum sentence a judge
                   may impose solely on the basis of the facts reflected in the jury
                   verdict or admitted by the defendant. In other words, the relevant
                   “statutory maximum” is not the maximum sentence a judge may
                   impose after finding additional facts, but the maximum he may
                   impose without any additional findings. When a judge inflicts
                   punishment that the jury’s verdict alone does not allow, the jury has
                   not found all the facts “which the law makes essential to the
                   punishment,” and the judge exceeds his proper authority.

Blakely, 542 U.S. at ___, 124 S. Ct. at 2537. Blakely did not dispute the appropriateness of a trial
court’s application of enhancement factor (2), which is based on the existence of a defendant’s prior
criminal history, but called into question the constitutionality of the application of the remainder of
our statutory enhancement factors without such facts being found by a jury or admitted by an
appellant.


         1
            Although the petitioner has not made the trial transcript a part of the appellate record, because the
transcript of the trial proceedings was filed with this court on direct appeal, we will take judicial notice thereof for
purposes of the current appeal. Delbridge v. State, 742 S.W .2d 266, 267 (Tenn. 1987).

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        However, our supreme court recently held that Blakely does not announce a new rule of law
and that the “Tennessee Criminal Sentencing Reform Act does not authorize a sentencing procedure
which violates the Sixth Amendment right to jury trial.” State v. Gomez, 163 S.W.3d 632, 651 n.16
(Tenn. 2005). Given the dictates of Gomez, the appellant’s reliance on Blakely must fail.

                                          III. Conclusion

        Based upon the record and the parties’ briefs, we remand the case to the post-conviction court
for further proceedings consistent with this opinion.


                                                      ___________________________________
                                                      NORMA McGEE OGLE, JUDGE




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