        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE

             TRAVIS DEAN JACKSON v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Davidson County
                                    No. CR-9330


                  No. M2009-01825-CCA-R3-PC - Filed June 11, 2010


This matter is before the Court upon the State’s motion to affirm the judgment of the trial
court by memorandum opinion pursuant to Rule 20 of the Rules of the Court of Criminal
Appeals. Petitioner has appealed the trial court’s order dismissing the petition for post-
conviction relief. Upon review of the record in this case, we are persuaded that the trial court
was correct in dismissing the petition for post-conviction relief and that this case meets the
criteria for affirmance pursuant to Rule 20 of the Rules of the Court of Criminal Appeals.
Accordingly, the State’s motion is granted and the judgment of the trial court is affirmed.


       Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Trial Court Affirmed
       Pursuant to Rule 20, Rules of the Court of Criminal Appeals

JERRY L. SMITH , J., delivered the opinion of the court, in which THOMAS T. WOODALL and ROBERT
W. WEDEMEYER, JJ. joined.

Travis Dean Jackson, pro se.

Robert E. Cooper, Jr., Attorney General & Reporter, and Matthew Bryant Haskell, Assistant
Attorney General, for the appellee, State of Tennessee.

                                MEMORANDUM OPINION

       The following factual background was recited at Petitioner’s nolo contendere plea
hearing:


       On June 1st of 2007, the state would prove that Mr. Jackson did sexually
       penetrate [the victim], a child of less than the age of 13 years old. In the
       state’s proof we would put on a taped confession given by [petitioner] to
       Detective Stacey Patterson. The child . . . would also testify that she made a
       full disclosure of the events that transpired.


On February 12, 2008, Petitioner pled nolo contendere to one count of rape of a child.
Pursuant to the plea agreement, Petitioner was sentenced to fifteen years to be served at
100%.

       On May 8, 2009, Petitioner filed a petition for post-conviction relief. In his petition
he acknowledges that his petition was filed past the one-year statute of limitations. In
explanation, Petitioner states that he was unaware of the statute of limitations. He then
argues that he was afforded ineffective assistance of counsel.

        The post-conviction court summarily dismissed the petition as being outside the
statute of limitations. Petitioner has appealed the summary dismissal of his petition.

                                           Analysis

        Petitioner argues on appeal that his petition should not have been dismissed based on
the statute of limitations. Petitioner argues that his petition should not have been time-barred
because “he did not learn of his legal right to challenge the constitutionality of his arrest and
convictions” until after the one-year statute had run. Therefore, he maintains that his due
process rights were violated and the statute of limitations should be tolled. The State argues
that this reason does not toll the statute of limitations and the trial court properly summarily
dismissed the petition.

        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

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       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 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. The post-conviction court properly held that Petitioner
failed to show that one of the exceptions to the one-year deadline listed in the statute was
applicable.

       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 being enhanced by previous convictions that had
subsequently been declared invalid, but not in time for him to meet the statute of limitations
for filing his post-conviction petition. Burford, 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. Burford, 845 S.W.2d 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:



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       [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
       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. 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 of the petitioner. 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.

        This Court has held that a petitioner’s personal ignorance of post-conviction
procedures, “even when alleged to stem from an attorney’s negligent failure to render advice
to the petitioner, does not toll the running of the statute” of limitations. State v. Phillips, 904
S.W.2d 123, 124 (Tenn. Crim. App. 1995). Further, we have previously determined that
mere lack of knowledge that a claim exists does not toll the statute of limitations. See, e.g.,
Jason Earl Hill v. State, No. E2005-00968-CCA-R3-PC, 2006 WL 389667, at *4 (Tenn.
Crim. App., at Knoxville, Feb. 16, 2006), perm. app. denied, (Tenn. Sept. 5, 2006) (holding
that petitioner’s lack of knowledge did not toll the statute of limitations when he argued that

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his claim for relief was not discovered until the conviction was used to enhance a subsequent
federal sentence); Guillermo Matiaz Juan v. State, No. 03C01-9708-CR-00318, 1999 WL
76453, at *1-2 (Tenn. Crim. App., at Knoxville, Feb. 18, 1999), perm. app. denied, (Tenn.
July 12, 1999) (concluding that ignorance of the law did not bar application of the
post-conviction statute of limitations).

       Petitioner has not shown a due process violation as required in the Burford line of
cases to toll the statute of limitations. Likewise, he has not met any of the exceptions set out
in Tennessee Code Annotated section 40-30-102(b). Therefore, Petitioner has asserted no
valid reason to toll the statute of limitations.
       For the above reasons we hold that the trial court was correct in dismissing the petition
for post-conviction relief. Rule 20 of the Rules of the Court of Criminal Appeals provides:

              The Court, with the concurrence of all judges participating in the case,
       when an opinion would have no precedential value, may affirm the judgment
       or action of the trial court by memorandum opinion rather than by formal
       opinion, when:

                     (1)(a) The judgment is rendered or the action taken in a
              proceeding before the trial judge without a jury, and such
              judgment or action is not a determination of guilt, and the
              evidence does not preponderate against the findings of the trial
              judge . . . .

                                          Conclusion

       We determine that this case meets the criteria of the above-quoted rule and, therefore,
we grant the State’s motion filed under Rule 20, and we affirm the judgment of the trial
court.




                                                    ____________________________________
                                                    JERRY L. SMITH, JUDGE




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