        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs at Knoxville April 23, 2013

              ROKISHA ALDERSON v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                        No. 2007-A-708 Seth Norman, Judge


               No. M2012-01154-CCA-R3-PC - Filed December 3, 2013


The Petitioner, Rokisha Alderson, appeals the Davidson County Criminal Court’s denial of
her petition for post-conviction relief from her 2008 convictions for two counts of felony
murder and one count of attempted first degree murder and her effective sentence of life plus
fifteen years. The Petitioner contends that the trial court erred by finding her petition was
barred by the statute of limitations and by dismissing her petition. We affirm the judgment
of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and N ORMA M CG EE O GLE, JJ., joined.

Chelsea Nicholson, Nashville, Tennessee, for the appellant, Rokisha Alderson.

Robert E. Cooper, Jr., Attorney General and Reporter; Benjamin A. Ball, Assistant Attorney
General; Victor S. (Torry) Johnson, III, District Attorney General; and Jeff Preston Burks,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

       On March 15, 2007, a Davidson County grand jury charged the then-sixteen-year-old
Petitioner with two counts of first-degree murder, two counts of felony murder, two counts
of attempted especially aggravated robbery, one count of attempted first degree murder, and
one count of aggravated assault. On January 24, 2008, pursuant to a plea agreement, the
Petitioner pleaded guilty to two counts of felony murder and one count of attempted first
degree murder and received a sentence of life plus fifteen years. The Petitioner turned
eighteen years old on November 23, 2008, and delivered her petition to prison officials
within one year of her eighteenth birthday.
        The petition for post-conviction relief alleged that (1) her guilty plea was involuntarily
entered, (2) her conviction was based on the use of a coerced confession, (3) her conviction
was based on the use of evidence gained pursuant to an unconstitutional search and seizure,
(4) her conviction was based on the use of evidence obtained pursuant to an unlawful arrest,
(5) her conviction was based on a violation of the privilege against self-incrimination, and
(6) she was denied the effective assistance of counsel. The Petitioner contended that the
statute of limitations should not bar her claims because she was a minor when she entered
her plea, because she was given inaccurate information by correction officers that she could
not file a petition for post-conviction relief until she turned eighteen, and because her low
reading level made it difficult to complete the petition. Although the petition was stamped
filed on January 11, 2010, the petition was signed by the Petitioner and delivered to prison
officials on November 22, 2009.

       On January 27, 2010, the trial court dismissed the petition as time-barred, and the
Petitioner appealed to this court. This court concluded that the trial court erred in dismissing
the petition without conducting a hearing to make determinations similar to those outlined
in Williams v. State, 44 S.W.3d 464 (Tenn. 2001), reversed the trial court’s judgment, and
remanded the case for an evidentiary hearing on the timeliness of the petition. Rokisha
Lashia Alderson v. State, No. M2010-00896-CCA-R3-PC (Tenn. Crim. App. Nov. 30, 2010).
The Petitioner filed a motion to reopen her post-conviction petition on November 8, 2011,
and was appointed counsel on December 13, 2011. On March 2, 2012, the trial court held
an evidentiary hearing to determine if the statute of limitations had been tolled.

       At the hearing, the Petitioner testified that she pleaded guilty on November 1, 2007.
She said she was serving a fifty-six-year sentence at 100% for two counts of felony murder
and one count of attempted first degree murder. She said that at the time of the evidentiary
hearing, she was twenty-one years old and had been at the Tennessee Prison for Women
since she pleaded guilty. She said that within one year of her pleading guilty, she asked a
correction officer about her legal rights. She said the officer told her that she could not file
a post-conviction petition because she could not associate with the adult offenders who
would have to assist with filing the legal paperwork. She said she asked him if that meant
she could not file a post-conviction petition. She said she did not remember the guard’s
name because the guards changed daily.

        The Petitioner testified that she was transferred to adult population when she turned
eighteen. She said that she asked a legal assistant at the prison about filing her post-
conviction petition within the year and that the legal assistant began gathering the paperwork
for the petition. She said she filed her petition on November 22, 2009, one day before her
nineteenth birthday. She said that she did not know why the petition was not filed in the
clerk’s office until January 11, 2010, but that she gave the petition to the prison officials

                                               -2-
within one year of her eighteenth birthday. She said that she went to school through the tenth
grade and that she underwent educational testing when she was eighteen but did not know
the results. She said she could read and write but did not know her reading or comprehension
level.

        On cross-examination, the Petitioner testified that she “backed out” of a plea
agreement on November 1, 2007, and pleaded guilty on January 24, 2008. She agreed that
one year from the day she pleaded guilty was January 24, 2009, and that her eighteenth
birthday was November 23, 2008, leaving her time after her eighteenth birthday to file the
petition within one year of the entry of the judgment. She said that she was told to wait until
she was eighteen to begin post-conviction proceedings because she needed help from the
adult inmates with whom she could not associate until she was eighteen. She said she
entered the general population at the prison the day after her eighteenth birthday. She said
that it was “in the policy” that she could not “mingle” with the adults and that because of the
policy, she did not have access to a computer or any resources to help her file her paperwork
in the required time. On redirect examination, a copy of the policy was entered as an exhibit.
The Petitioner agreed that policy part 506.14.2 stated “youthful offenders” were to be
retained in single cells under protective custody and not to have physical contact with
sentenced offenders.

        Upon questioning by the trial court, the Petitioner said that Erica East was an inmate
“law clerk.” She said that Ms. East helped with her petition and wrote a letter to the court.
The letter from Ms. East stated that when the Petitioner was a juvenile, the law clerks were
not permitted to visit her because she was secluded from the general population. The letter
stated, though, that the law clerk inmates could correspond with juveniles through the in-
house mail system and could request from the captain or shift commander an in-person
meeting in a non-contact visitation room if needed.

        The trial court found that the Petitioner failed to provide sufficient proof to
substantiate her claims. It found that the Petitioner’s “unsubstantiated allegation” that a
correction officer provided erroneous information about her filing a post-conviction petition
before her eighteenth birthday was “questionable at best,” that the only proof offered was the
Petitioner’s allegation, and that no attempts were made to locate the correction officer. The
court found that contrary to the Petitioner’s testimony, she could have contacted inmate law
clerks as a juvenile to discuss her petition but failed to do so. The court also found that she
did not file the petition during the three months after she turned eighteen and before the
statute of limitations expired and that she gave no explanation for the delay. The court
concluded that the Petitioner failed to show due process required tolling the statute of
limitations and failed to prove she was denied a reasonable opportunity to present her
petition.

                                              -3-
        The Petitioner contends that the trial court erred by finding that the petition for post-
conviction relief was barred by the statute of limitations and argues that due process requires
tolling the statute of limitations. She argues that prison officials and a legal aid inmate gave
her misinformation, preventing her from timely filing her petition. The State responds that
the court properly concluded due process did not require tolling the limitations period. The
State argues that the Petitioner failed to prove prison authorities misled her to believe her age
prevented her from filing a post-conviction petition or tolled the statute of limitations period.

        This court reviews a post-conviction court’s “conclusions of law, decisions involving
mixed questions of law and fact, and its application of law to its factual findings de novo
without a presumption of correctness.” Whitehead v. State, 402 S.W.3d 615, 621 (Tenn.
2013) (citing Felts v. State, 354 S.W.3d 266, 276 (Tenn. 2011); Calvert v. State, 342 S.W.3d
477, 485 (Tenn. 2011)). “Issues regarding whether due process required the tolling of the
post-conviction statute of limitations are mixed questions of law and fact and are, therefore,
subject to de novo review.” Id. (citing Smith v. State, 357 S.W.3d 322, 355 (Tenn. 2011)).
The post-conviction court’s conclusion that due process did not require tolling the statute of
limitations under these circumstances is a question of law. The petitioner bears the burden
of proving by clear and convincing evidence that the statute of limitations should be tolled
for due process. See Reid v. State, 197 S.W.3d 694, 705 (stating that “[i]f the clear and
convincing standard is adequate to ensure due process in the tolling context, then we deem
it proper for purposes of the post-conviction proceeding itself”) (citing State v. Nix, 40
S.W.3d 459, 463-64 (Tenn. 2001)).

       A petition for post-conviction relief must be filed within one year of the final action
by the highest state appellate court to which an appeal is made or, if no appeal is taken,
within one year of the trial court’s judgment becoming final. T.C.A. § 40-30-102(a) (2012).
“As a general rule, a trial court’s judgment becomes final thirty days after its entry unless a
timely notice of appeal or a specified post-trial motion is filed.” State v. Pendergrass, 937
S.W.2d 834, 837 (Tenn. 1996). The Petitioner pleaded guilty January 24, 2008, and the
judgments became final February 23, 2008. The time in which the Petitioner had to file her
petition expired on February 23, 2009. We conclude that the petition for relief was untimely.

        Tennessee Code Annotated provides for tolling the post-conviction statute of
limitations in three instances not applicable to this appeal. See T.C.A. § 40-30-102(b)(1)-(3).
In addition, principles of due process may allow for tolling the statute of limitations in
limited circumstances. See Burford v. State, 845 S.W.2d 204, 208 (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.”). In Williams, the supreme court
was concerned that “a strict application of the statute” could have the effect of denying the
petitioner “‘a reasonable opportunity to assert a claim in a meaningful time and manner’”

                                               -4-
because the petitioner “might have been denied the opportunity to challenge his conviction
in a timely manner through no fault of his own but because of the possible misrepresentation
of his counsel.” Williams, 44 S.W.3d at 468 (quoting Seals v. State, 23 S.W.3d 272,279
(Tenn. 2000)).

       In remanding this case for an evidentiary hearing, this court concluded that while
Williams addressed possible attorney misrepresentation, the same rationale applied to
possible misrepresentation by prison officials and remanded the case for the trial court to
make determinations similar to those in Williams. Rokisha Lashia Alderson, slip op. at 4-5.
The court was to determine:

       (1) whether due process tolled the statute of limitations so as to give the
       [Petitioner] a reasonable opportunity after the expiration of the limitations
       period to present [her] claim in a meaningful time and manner; and (2) if so,
       whether the [Petitioner’s] filing of the post-conviction petition [on November
       22, 2009] was within the reasonable opportunity afforded by the due process
       tolling.

Rokisha Lashia Alderson, slip op. at 5 (quoting Williams, 44 S.W.3d at 471). The trial court
found that the Petitioner failed to prove due process required tolling the limitations period
and did not reach the second question.

        Due process tolls the post-conviction statute of limitations for petitioners who face
circumstances beyond their control, such as mental illness and attorney misrepresentations,
that preclude them from actively raising their post-conviction claims. Williams, 44 S.W.3d
at 469; Seals, 23 S.W.3d 272. Regarding the Petitioner, this court also concluded that prison
officials’ conduct or misrepresentations that precluded petitioners from actively raising their
post-conviction claims would toll the statute. Rokisha Lashia Alderson, slip op. at 4.
Recently, our supreme court has said, “A petitioner is entitled to due process tolling 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. Whitehead,
402 S.W.3d at 613 (citing Holland v. Florida, 560 U.S. 631, ---, 130 S. Ct. 2549, 2562
(2010)).

        We note, first, that the Petitioner’s being a minor at the time she pleaded guilty is not
sufficient to make a showing of incompetence to toll the statute of limitations. See Stewart
v. State, 95 S.W.3d 229, 233 (Tenn. Crim. App. 2002); Rokisha Lashia Alderson, slip op. at
4. Juveniles who have been transferred to adult courts may toll the limitations period but
must make a prima facie showing of incompetence to do so, which requires “specific factual
allegations that demonstrate the Appellant’s inability to manage his personal affairs or

                                               -5-
understand his legal rights and abilities.” Stewart, 95 S.W.3d at 233; see Nix, 40 S.W.3d at
464 (stating that a post-conviction petitioner must make a prima facie showing of
incompetence in order to avoid summary dismissal of the petition). We note, too, that the
petition alleged that the Petitioner “has a low educational level,” read on a second grade
level, and was unable to understand how to file a post-conviction petition until she found
another inmate to help her complete the paperwork. The Petitioner testified, however, that
she went to school through the tenth grade and that she could read and write. She failed to
establish incompetency to file her petition within the limitations period.

        Regarding the Petitioner’s claim that the statute of limitations should be tolled because
prison officials deprived her of a meaningful opportunity to present her claim in a timely
manner, the Petitioner testified that she inquired about filing a post-conviction petition but
a guard told her she could not file a petition because she “couldn’t mingle with the adult
offenders . . . and . . . would have to go through them to file [a petition].” She could not
identify the guard whom she claimed made the statement. The court discredited her
testimony about the conversation with the guard. Based upon a letter from an inmate who
helped the Petitioner with her petition, the court found that the Petitioner could have written
letters to the legal aid inmates or requested non-contact meetings with them. The Petitioner
did not offer any evidence that she was prevented from written communications with inmate
law clerks while she was in juvenile segregation. The Petitioner testified that when she was
moved to the general population after her eighteenth birthday, she asked an inmate “law
clerk” about filing her post-conviction petition within the one-year period and that the inmate
said she would gather the paperwork for the petition. Although she testified that she had to
“go through” the inmate law clerks to file a petition, she did not testify that she was
prohibited from having access to them in the three-month period between her eighteenth
birthday and the expiration of the statute of limitations, nor did she testify that anyone
prohibited her from filing her petition in the three-month period.

       Regarding the Petitioner’s argument that the trial court should not have determined
three months was “enough time” to file her petition, we note that in Williams, the supreme
court declined to determine what length of time was sufficient to pursue post-conviction
appellate review for a petitioner who had tolled the statute and concluded that it was a
question of fact for the trial court. In the present case, the trial court determined that three
months remained in the limitations period after the Petitioner was released into the general
population but that she waited until the day before her nineteenth birthday to file her petition.
The court concluded that the Petitioner was not denied a reasonable opportunity to present
her claim. The Petitioner’s testimony established that she was aware of the right to seek
post-conviction relief during the time she was in juvenile segregation. She has not explained
how three months was an insufficient time period to prepare her petition with the assistance
of an inmate law clerk once she reached the general population.

                                               -6-
       The evidence fails to show that the Petitioner diligently pursued her statutory right to
seek post-conviction relief and that an extraordinary circumstance prevented her from filing
a timely petition. See Whitehead, 402 S.W.3d at 631. The trial court did not err in denying
post-conviction relief.

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.




                                           ____________________________________
                                           JOSEPH M. TIPTON, PRESIDING JUDGE




                                              -7-
