        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs June 28, 2011

                  ROGER JOSEPH v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Bradley County
                       No. 01-010 Amy Armstrong Reedy, Judge



                  No. E2010-01891-CCA-R3-PC - Filed January 23, 2012


On April 25, 2001, Petitioner, Roger Joseph, pled guilty to first degree murder. The Bradley
County Criminal Court sentenced him to life in prison with possibility of parole. Petitioner
filed a pro se petition for post-conviction relief on February 17, 2010. On February 28, 2010,
the post-conviction court summarily dismissed the petition for being untimely and because
Petitioner had filed a previous petition. On appeal, Petitioner argues that he was taking
various psychiatric medications at the time he entered his guilty plea and, therefore, his plea
was not entered voluntarily. He also argues that trial counsel was ineffective because he
knew Petitioner was taking medication. Because Petitioner has shown no due process
violation or other reason for tolling the statute of limitations, we conclude that the post-
conviction court properly dismissed the petition.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OHN E VERETT W ILLIAMS and
D. K ELLY T HOMAS, J R., JJ., joined.

Roger Joseph, Pro Se, Mountain City, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Steven Bebb, District Attorney General; and Joe Hoffer, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                         OPINION

                                    Factual Background

      The Bradley County Grand Jury indicted Petitioner for one count of first degree
premeditated murder and one count of aggravated assault. Petitioner entered a guilty plea
to first degree murder on April 25, 2001. The trial court sentenced Petitioner to life in prison
with the possibility of parole. The aggravated assault charge was dismissed.

       On February 17, 2010, Petitioner filed a pro se petition for post-conviction relief. In
that petition he argued that even though the one-year statute of limitations had passed, his
claim should not be barred because his attorney knew he was on medication during his guilty
plea and that his counsel was ineffective. The post-conviction court summarily dismissed
the petition on February 28, 2010. The post-conviction court stated the following:


              A review of the petition shows the petition is not completely filled in
       as to date of conviction, time of conviction, et cetera, and further that the
       petition indicates no prior post-conviction relief petitions have been filed.

              A search of the court records pertaining to petitioner will reveal prior
       petitions for post-conviction relief which have been resolved on the merits by
       a court of competent jurisdiction, and further that this petition is filed well
       outside the time frame for post-conviction relief.


On June 2, 2010, Petitioner filed an untimely notice of appeal.

                                         ANALYSIS

        Initially, we address the fact that Petitioner’s notice of appeal was untimely. “In an
appeal as of right to the . . . Court of Criminal Appeals, the notice of appeal required by Rule
3 shall be filed with and received by the clerk of the trial court within 30 days after the date
of entry of the judgment appealed from . . . .” Tenn. R. App. P. 4(a) The post-conviction
court filed its dismissal of the petition on February 28, 2010. Petitioner filed his notice of
appeal on May 26, 2010, roughly three months after the post-conviction court’s final action.
This is well outside the thirty days called for in the statute. In criminal cases, however, “the
‘notice of appeal’ document is not jurisdictional and the filing of such document may be
waived in the interest of justice.” See id. In the case at hand, there is a hand-written note
that Petitioner did not receive the court’s order until May 24, 2010, and he attached a copy
of the envelope from the court stamped received on that date. Based on these facts, we have
decided that it is in the interest of justice to waive the timely filing of the notice of appeal.

      On appeal, Petitioner argues that the post-conviction court erred in summarily
dismissing his petition. The State argues that the post-conviction court did not err because



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the petition was untimely and the claims raised in the petition had been addressed in previous
proceedings.

        Under the Post-conviction Procedure Act, a petition for post-conviction relief must
be filed 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 became final. T.C.A. § 40-30-102(a). Unless one of the enumerated exceptions
applies, a court does not have jurisdiction to consider an untimely petition. See T.C.A. § 40-
30-102(b). Tennessee Code Annotated section 40-30-102(b) states:


       (b) No court shall have jurisdiction to consider a petition filed after the
       expiration of the limitations period 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. The petition
       must be filed within one (1) year of the ruling of the highest state appellate
       court or the United States supreme court establishing a constitutional right that
       was not recognized as existing at the time of trial;

       (2) The claim in the petition is based upon new scientific evidence establishing
       that the petitioner is actually innocent of the offense or offenses for which the
       petitioner was convicted; or

       (3) The claim asserted in the petition seeks relief from a sentence that was
       enhanced because of a previous conviction and the 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, in which case
       the petition must be filed within one (1) year of the finality of the ruling
       holding the previous conviction to be invalid.


In the present case, the post-conviction court properly determined that the petition was filed
more than one year after the date of the final action by the highest court to which an appeal
was taken and thus well outside the statute of limitations. Petitioner pled guilty to first
degree murder and was sentenced to life imprisonment on April 25, 2001. Petitioner did not
appeal.




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        In his petition, Petitioner argued that he has been heavily medicated due to his mental
situation and, therefore, his plea was entered involuntarily and trial counsel was ineffective
because he knew Petitioner was taking the medication at the time. The situation alleged by
Petitioner does not fall within one of the above-listed exceptions to the rule requiring
petitions of post-conviction relief to be filed within one year.

        However, in addition to the exceptions set out in the statute, the courts in this State
have found that due process concerns can toll the statute of limitations in certain factual
situations. See Williams v. State, 44 S.W.3d 464 (Tenn. 2001); Sands v. State, 903 S.W.2d
297 (Tenn. 1995); Burford v. State, 845 S.W.2d 204 (Tenn. 1992).

        Williams v. State, 44 S.W.3d 464 (Tenn. 2001), is the most recent in a line of cases
including Burford v. State, 845 S.W.2d 204 (Tenn. 1992) and Sands v. State, 903 S.W.2d 297
(Tenn. 1995), analyzing when due process limitations toll the statute of limitations. In
Burford, the petitioner’s sentence was enhanced by previous convictions that had
subsequently been declared invalid, but not invalidated in time for him to meet the statute of
limitations for filing his post-conviction petition. 845 S.W.2d at 208. Our supreme court
stated that because the petitioner was in a procedural trap, the petitioner’s due process rights
would be violated by not allowing a tolling of the statute of limitations and the filing of a
post-conviction petition. Id. at 208-09.

      In Sands, our supreme court analyzed Burford and set out the basic rule derived from
Burford and how to go about applying this rule in future cases. The supreme court stated:


       [I]t will be helpful to summarize the basic rule to be derived from Burford:
       that, in certain circumstances, due process prohibits the strict application of the
       post-conviction statute of limitations to bar a petitioner’s claim when the
       grounds for relief, whether legal or factual, arise after the “final action of the
       highest state appellate court to which an appeal is taken”-or, in other words,
       when the grounds arise after the point at which the limitations period would
       normally have begun to run. In applying the Burford rule to specific factual
       situations, courts should utilize a three-step process: (1) determine when the
       limitations period would normally have begun to run; (2) determine whether
       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.
       In making this final determination, courts should carefully weigh the
       petitioner’s liberty interest in “collaterally attacking constitutional violations

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       occurring during the convictions process,” Burford, 845 S.W.2d at 207,
       against the State’s interest in preventing the litigation of “stale and fraudulent
       claims.” Id. at 208.


Sands, 903 S.W.2d at 301 (footnote omitted). However, after going through this analysis,
the supreme court concluded that the statute of limitations had not been tolled in the Sands
situation.

        In Williams v. State, 44 S.W.3d 464 (Tenn. 2001), the supreme court again held that
the statute of limitations was tolled by the factual and legal situation. In Williams, there was
some dispute over whether the petitioner’s trial counsel continued to represent him and how
much the petitioner actually knew about the progress of his appeals. The supreme court stated
that the question was whether the petitioner had been “misled to believe that [his trial]
counsel was continuing the appeals process . . . .” Id. at 471. The supreme court remanded
the case to the trial court for it to determine whether the statute must be tolled due to possible
attorney misrepresentation. Id. In other words, Williams “appears to limit claims of attorney
misrepresentation tolling the statute of limitations to times when counsel has made
misrepresentations directly related to filing a defendant’s appeal.” Crawford v. State, 151
S.W.3d 179, 184 (Tenn. Crim. App. 2004).

        In this line of cases, the court focused on the fact that the petitioner’s grounds for
relief arose after the one year statute for filing their petition for post-conviction relief had
passed. In the case at hand, Petitioner is arguing that the medication he was taking at the
time he entered his guilty plea and in later years prevented him from making a sound
decision. This does not constitute a later-arising situation.

         In addition, in State v. Nix, 40 S.W.3d 463 (Tenn. 2001), our supreme court stated that
due process considerations may require that tolling of the statute of limitations if a petitioner
demonstrates “that he is unable either to manage his personal affairs or to understand his
legal rights and liabilities.” 40 S.W.3d at 463. The court went on to state that a petitioner
must include sufficient factual allegations to support his claim of incompetency. Id. at 464.
To make a prima facie showing so that the statute of limitations may be tolled, “a
post-conviction petition must include specific factual allegations that demonstrate the
petitioner’s inability to manage his personal affairs or understand his legal rights and
liabilities. Unsupported, conclusory, or general allegations of mental illness will not be
sufficient to require tolling and prevent summary dismissal under Tennessee Code Annotated
section 40-30-206(b) & (f).” Id.




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       In his petition, Petitioner states that at the time he entered his guilty plea he was taking
four different medications for his mental issues. He also states that he was not competent to
stand trial. However, he has made no specific factual allegations that following his
conviction in 2001, he was unable to manage his personal affairs until 2010. He has not met
the requirements set out in Nix in order to toll the statute of limitations. Therefore, the post-
conviction court correctly determined that his petition was untimely.

        Moreover, the post-conviction court stated in its order dismissing the petition that
Petitioner had filed a previous petition for post-conviction relief. Petitioner admits this fact
in his brief. The Post-Conviction Procedure Act specifically provides that “[i]n 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.” T.C.A. §
40-30-102(c). It appears that Petitioner has filed a previous petition and, this fact is another
basis for summary dismissal.

                                        CONCLUSION

     For the foregoing reasons, we conclude that the post-conviction court did not err in
summarily dismissing the petition for post-conviction relief.




                                             ___________________________________
                                             JERRY L. SMITH, JUDGE




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