            IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                              AT JACKSON
                              Assigned on Briefs January 5, 2011

                   ANTONIO OLIVER v. STATE OF TENNESSEE

                Direct Appeal from the Criminal Court for Shelby County
                          No. 04-08346    Paul Skahan, Judge




                No. W2009-02113-CCA-R3-PC - Filed September 23, 2011


A Shelby County jury convicted the petitioner, Antonio Oliver, of first degree murder, and
the trial court sentenced him to life imprisonment. On direct appeal, this court affirmed the
petitioner’s conviction and sentence. The petitioner filed a petition for post-conviction relief
and motion to toll limitations period alleging that he was deprived of second-tier review of
his conviction by the Tennessee Supreme Court based on various misrepresentations by
appellate counsel. Specifically, the petitioner argues that appellate counsel failed to notify
him of this court’s opinion on direct appeal, which caused him to be “unaware” that a Rule
11 application needed to be filed or that the statute of limitations for post-conviction relief
had expired. The post-conviction court denied relief, and the petitioner now appeals. After
reviewing the record, the parties’ briefs, and applicable law, we conclude that the petitioner
was denied second-tier review of his conviction through no fault of his own. In reversing the
judgment of the post-conviction court, we grant the petitioner a delayed appeal and stay
further proceedings on his remaining claims of post-conviction relief.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN J.,
joined and J.C. M CL IN, J., (not participating).1

Ruchee J. Patel, Memphis, Tennessee, for the Petitioner-Appellant, Antonio Oliver.




        1
          This case was originally assigned to our colleague and friend, Judge J.C. McLin. After Judge
McLin’s untimely death on September 3, 2011, the case was re-assigned. Prior to his death, Judge McLin
and his staff had done extensive work on this case. We have utilized much of that work, incorporated it into
this opinion, and take this opportunity to acknowledge the faithful service of Judge McLin to this Court.
Robert E. Cooper, Jr., Attorney General and Reporter; J. Ross Dyer, Assistant Attorney
General; William L. Gibbons, District Attorney General; and Bryan Davis, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                                          OPINION

        In September 2006, a Shelby County jury convicted the petitioner, Antonio Oliver, of
first degree murder. The trial court sentenced him to life imprisonment. The petitioner
appealed his conviction, which was affirmed by this Court. See State v. Antonio Oliver, No.
W2006-01736-CCA-R3-CD, 2007 WL 3194570, at *1 (Tenn. Crim. App., at Jackson,
October 30, 2007). No Rule 11 application for permission to appeal to the Tennessee
Supreme Court was filed. Over a year after our opinion affirming the petitioner’s conviction,
on March 12, 2009, the petitioner filed a “Petition for Post-Conviction Relief and Motion to
Toll Limitations Period,” which requested that the post-conviction court toll the statute of
limitations period based on due process and ineffective assistance of counsel.

        On March 21, 2009, the post-conviction court held a hearing on the petitioner’s
motion to toll the statute of limitations period. Appellate counsel, a veteran appellate
criminal defense attorney, testified that he represented the petitioner for his motion for new
trial and direct appeal. He stated that according to his contract with the petitioner’s family,
he was to represent the petitioner at the motion for new trial, direct appeal and Rule 11
appeal. He said that he assured the petitioner’s family that his firm would “use [their] best
professional skills in representing [the petitioner].” Appellate counsel argued the petitioner’s
motion for new trial and prepared a direct appeal to the Tennessee Court of Criminal
Appeals.

        Appellate counsel said that his office’s normal procedure after an appellate court
issued an opinion was to review the opinion, send a copy to the client, add the opinion to the
client’s file, and prepare a Rule 11 application for permission to appeal to the Tennessee
Supreme Court. They would docket the Rule 11 on their office calendar to ensure that the
application to appeal would be timely filed. According to appellate counsel, when the
opinion for petitioner’s direct appeal was issued, the person in the office who had been
handling appeals was on maternity leave. The replacement person did not docket the
petitioner’s case or send the petitioner a copy of the direct appeal opinion. Appellate
counsel’s office eventually closed the case, and appellate counsel had no knowledge of the
appellate decision. Appellate counsel did not become aware of the oversight until the
petitioner’s family called him to ask about the status of the case. Appellate counsel said that
he told the petitioner what had happened and “prepared something for him as quickly as
possible so that it would . . . meet muster to at least get him a hearing.”



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       Appellate counsel “absolutely” considered the failure to send the petitioner a copy of
the opinion a mistake. He said that the firm’s customary practice was to send clients their
opinions. Appellate counsel understood his duty to have reasonable communication with his
client. He said that he did not file a motion to withdraw because he did not intend to
withdraw from the case. Appellate counsel still considered himself the petitioner’s attorney
but did not recall whether he represented to the petitioner that he was pursuing all further
matters. He said that, generally, he did not communicate with clients during their appeals
because they are incarcerated in other jurisdictions. Appellate counsel agreed that the failure
to inform the petitioner about the opinion “seriously affected [the petitioner’s] rights for all
subsequent filings.” He stated that he did not intend to let the petitioner’s opinion “slip
through the cracks” and that the petitioner and the petitioner’s family believed that trial
counsel continued to undertake the appeal and that the appeal was ongoing. Appellate
counsel did not remember specific conversations with the petitioner or his family during the
appeals process, but he said that their contract “contemplate[d] specifically, expressly, that
this matter would go through the Supreme Court with the Rule 11.”

       On cross-examination, appellate counsel testified that he did not purposely fail to send
the petitioner the appellate opinion, and his failure to do so was an omission on his part. He
said that it was unintentional, and he did not recall doing anything to mislead the petitioner
after the opinion from the direct appeal was issued. Appellate counsel said that the
petitioner’s family contacted him in January of 2009. When they called, he looked at the file
and saw that the petitioner’s case was “off track.” Appellate counsel stated that he told the
family that the petitioner’s case was off track and tried to make it right. The petitioner’s
family’s phone call was appellate counsel’s first notification that something was not right
with the petitioner’s appeal.

       Appellate counsel stated that he did not make any misrepresentations to the petitioner
and what happened was an omission. He did not tell the petitioner anything that was untrue.
He said that the petitioner and his family were confident that he would use his best
professional skills. Appellate counsel further said that he should have followed through with
the appeal and notified the petitioner. Appellate counsel said that the attorneys of record
received copies of the opinion on direct appeal, and the only way the petitioner could have
gotten a copy, other than waiting for the publication, was for him send it. Appellate counsel
generally advised his clients and their families about how long the appeal process would take
and that he would let them know as soon as he heard from the court. However, in this case,
he did not recall specifically telling the petitioner and his family how long it would take.

       On September 28, 2009, the post-conviction court entered an order denying the
petitioner’s motion to toll the statute of limitations and dismissing the petition for post-
conviction relief. Based on appellate counsel’s statement that he did not intentionally fail

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to notify the petitioner of this court’s decision on direct appeal, the post-conviction court
considered appellate counsel’s conduct as “negligen[t], [and] not willful
misrepresentation[.]” The petitioner now appeals the denial of relief by the post-conviction
court.

                                           Analysis

        On appeal, the petitioner argues that the post-conviction court erred in finding that
there was no basis for tolling the post-conviction statute of limitations and dismissing his
petition for post-conviction relief. The petitioner asserts that due to circumstances beyond
his control, he was “precluded from pursuing remedies independently.” He contends that he
believed that his appeal was still pending based on appellate counsel’s representations. The
state responds that appellate counsel’s actions “amounted to mere negligence and not an
intentional misrepresentation, [thus] the post-conviction court properly determined that due
process did not require the tolling of the . . . statute of limitations.” We agree with the
petitioner.

       On appeal, this court is required to affirm the post-conviction court’s findings unless
the petitioner proves that the evidence preponderates against those findings. State v. Burns,
6 S.W.3d 453, 461 (Tenn. 1999). Our review of the post-conviction court’s factual findings
is de novo with a presumption that the findings are correct. Fields v. State, 40 S.W.3d 450,
457-58 (Tenn. 2001). Our review of the post-conviction court’s legal conclusions and
application of law to facts is de novo without a presumption of correctness. Id.

       Pursuant to Tennessee Code Annotated § 40-30-102(a), a person must petition for
post-conviction relief within one year of the date of the final action of the highest state
appellate court to which they take an appeal or, if they take no appeal, within one year of the
date on which the judgment becomes final. The statute further provides that:

       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.

T. C. A. § 40-30-102(a). However, despite the one-year statute of limitations, a
post-conviction court may still consider an untimely petition if: (1) the highest state appellate
court or the United States Supreme Court established a new constitutional right with
retrospective application, (2) new scientific evidence has established the petitioner’s



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innocence, or (3) a court has ruled that a previous conviction that enhanced the petitioner’s
sentence was invalid. Id. at § 40-30-102(b).

       A court may also consider an untimely petition if applying the statute of limitations
would deny the petitioner due process. Burford v. State, 845 S.W.2d 204, 209-10 (Tenn.
1992). To determine if due process requires tolling of the statute of limitations, 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.” Sands v. State, 903 S.W.2d 297, 301 (Tenn.
1995). Due process requires a weighing of the petitioner’s liberty interest against the state’s
interest in preventing the litigation of stale and fraudulent claims. Id.

       The Tennessee Supreme Court applied the Burford principle in Williams v. State, 44
S.W.3d 464 (Tenn. 2001). In Williams, the petitioner filed his post-conviction petition nine
months after the statute of limitations had expired, alleging that no notification was given by
his appointed counsel with regard to the status of his direct appeal, counsel’s intent to
withdraw, and counsel’s untimely application for permission to appeal to the Supreme Court.
Williams, 44 S.W.3d at 466. The Tennessee Supreme Court stated that “[i]f a defendant
erroneously believes that counsel is continuing to represent him or her, then the defendant
is essentially precluded from pursuing certain remedies independently.” Id. at 469. It
further stated that “an attorney’s misrepresentation, either attributable to deception or other
misconduct” is a circumstance “beyond a defendant’s control” that would preclude the
defendant from actively pursuing post-conviction claims. Id. “The sole inquiry is . . .
whether [the] limitations period is tolled because of due process concerns surrounding
possible attorney misrepresentation.” Id. at 471.

        When petitioners claim that trial counsel’s misrepresentation hampered them from
filing a timely post-conviction petition, due process requires only that courts afford the
petitioner “a reasonable opportunity after the expiration of the limitations period to present
his claim in a meaningful time and manner.” Id. However, our state supreme court
emphasized,

       [W]e are not holding that a petitioner may be excused from filing an untimely
       post-conviction petition as a result of counsel’s negligence. Instead, the focus
       here is only upon trial and appellate counsel’s alleged misrepresentation in
       failing to properly withdraw from representation and in failing to notify the
       petitioner that no application for permission to appeal would be filed in this
       Court.

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Id. at 468 n. 7.

        In the present case, the record clearly indicates that the statute of limitations expired
before the petitioner filed his petition for post-conviction relief. The jury convicted the
petitioner on September 25, 2006. This court affirmed the conviction on October 30, 2007.
Appellate counsel never filed a Rule 11 application for permission to appeal to the Tennessee
Supreme Court. Thus, the statute of limitations expired on October 30, 2008, one year after
the final disposition in the petitioner’s case. The petitioner did not file his petition for
post-conviction relief until March 12, 2009, almost five months after the date of the final
action of the highest state appellate court to which the petitioner took an appeal. Relying on
Williams, the petitioner argues that due process considerations should toll the statute of
limitations period because appellate counsel misrepresented to the petitioner and his family
that the appeals process was ongoing.

        The record in this case shows that appellate counsel, a veteran criminal defense
attorney, had a contract with the petitioner to represent him at the motion for new trial, on
direct appeal to this court, and upon second-tier appellate review by the Tennessee Supreme
Court. Appellate counsel testified that after this court’s opinion denying the petitioner relief,
the petitioner’s case got “off track.” Appellate counsel explained that the filing clerk who
handled the docketing in his office was on maternity leave and never filed the petitioner’s
case in their system. As a result, the petitioner’s file was closed and no Rule 11 was ever
filed. Appellate counsel only went in search of the petitioner’s file after the petitioner’s
family telephoned his office asking for the status of the case. Appellate counsel testified that
“it’s my belief, that my client, had every belief, that he was continuing to undertake the
appeal and that the process was ongoing.”

         We view this case no differently than Moultrie v. State, in which this court held that
the “unilateral termination of an appeal, without confirmation from the client, . . . deprives
the defendant in a criminal case of his right to effective assistance of counsel.” 542 S.W.2d
835, 838 (Tenn. Crim. App. 1976). See also Pinkston v. State, 668 S.W.2d 676, 677 (Tenn.
Crim. App. 1984) superseded by rule as stated in State v. Evans, 108 S.W.3d 231, 234 (Tenn.
Crim. App. 2003) and Roger Harris v. State, No. E2001-00782-CCA-R3-PC, 2002 WL
1939927 *2-3 (Tenn. Crim. App. at Knoxville, August 22, 2002). In Moultrie, retained
counsel “failed to file a petition for certiorari despite the clear understanding with his client
that this action would be taken.” 542 S.W.2d 835, 838 (Tenn. Crim. App.1976). This court
recognized that “in doing so, [counsel had] unilaterally terminated the defendant’s appeal
without notice and thus deprived his client of the opportunity to secure substitute counsel.”
Id. The petitioner’s direct appeal was unilaterally terminated by appellate counsel following
first-tier review by this court, and we granted a delayed appeal as a result.

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        Under the facts of this case, we conclude that the petitioner is entitled to a delayed
appeal. Appellate counsel expressly advised the petitioner that he would be representing the
petitioner throughout his appeal, including the Rule 11 application to the Tennessee Supreme
Court. However, the record shows that the petitioner was not notified as to the status of his
direct appeal. Appellate counsel conceded that he believed the petitioner’s case was closed
and failed to file a Rule 14 motion to withdraw or an application for permission to appeal to
the Tennessee Supreme Court. In our view, appellate counsel effectively abandoned the
petitioner’s appeal. Moreover, the petitioner was without representation following his direct
appeal, even though the record shows that he was still being represented by retained counsel.
Appellate counsel immediately filed an affidavit and a petition for rehearing upon discovery
that the petitioner’s case had not been litigated consistently with the express terms of their
contract. Based on the above authority, we reverse the judgment of the post-conviction court
and grant the petitioner a delayed appeal to the Tennessee Supreme Court.

                                         Conclusion

        Based on the foregoing, the judgment of the post-conviction court is reversed. We
hereby vacate the judgment in State v. Antonio Oliver, No. W2006-01736-CCA-R3-CD,
2007 WL 3194570 (Tenn. Crim. App. at Jackson, October 30, 2007), and reinstate it as of
the date of this opinion. The petitioner shall have sixty days from the date that this judgment
is filed to seek an appeal, pursuant to Rule 11, T.R.A.P., to the Tennessee Supreme Court of
this court’s judgment affirming his convictions. Pursuant to Tennessee Supreme Court Rule
28 § 9(D), the petitioner’s post-conviction proceedings are stayed pending the final
deposition of the delayed appeal to seek such review.


                                                    ___________________________________
                                                    CAMILLE R. MCMULLEN, JUDGE




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