        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                            Assigned on Briefs May 20, 2009

       TIMOTHY CLAYTON THOMPSON v. STATE OF TENNESSEE

               Direct Appeal from the Criminal Court for Knox County
                      No. 90379    Mary Beth Leibowitz, Judge




                  No. E2008-02819-CCA-R3-PC - Filed April 19, 2010


Petitioner Timothy Clayton Thompson pled guilty to one count of especially aggravated
kidnapping and one count of aggravated rape. This court affirmed his conviction and
Petitioner did not request supreme court review. Five years later, Petitioner filed this petition
for post-conviction relief, seeking a delayed direct appeal and collaterally attacking his
conviction. The post-conviction court concluded the petition was filed outside the limitations
period and dismissed it without a hearing. Upon review, we conclude Petitioner is entitled
to an evidentiary hearing to determine whether due process concerns toll the statute of
limitations. We therefore reverse the post-conviction court’s judgment and remand for
appointment of counsel and for an evidentiary hearing consistent with this opinion.

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

N ORMA M CG EE O GLE, J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and D. K ELLY T HOMAS, J R., JJ., joined.

Timothy Clayton Thompson, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Melissa Roberge, Assistant Attorney
General; Randall E. Nichols, District Attorney General, for the appellee, State of Tennessee.

                                         OPINION
                                   I. Factual Background
       The circumstances leading to Petitioner’s underlying conviction are not relevant to the
issues present before us.1 It suffices to say he was convicted on his guilty pleas to two Class
A felonies and was sentenced to serve two consecutive twenty-two year terms in
confinement. On direct appeal, this court affirmed Petitioner’s conviction and sentence.
See State v. Timothy Clayton Thompson, No. E2002-01710-CCA-R3-CD, 2003 WL
21920247, at *1 (Tenn. Crim. App. at Knoxville, Aug. 12, 2003). The opinion was issued
on August 12, 2003; however, Petitioner alleges that he was not aware of the decision until
August 2008.

        According to Petitioner, he received a copy of the brief filed in his direct appeal in
December 2002. Counsel assured Petitioner that he would keep Petitioner advised of
developments in the case and that his case would be in the appellate system for a “long time.”
As time passed, Petitioner became concerned about the lack of action in his case and wrote
his attorney a letter. His attorney did not respond. Therefore, in August 2008 Petitioner
wrote the clerk’s office and was advised that his case had been decided. The clerk’s office
provided him a copy of the court’s opinion.

        Thereafter, Petitioner filed a complaint against counsel with the Tennessee Board of
Professional Responsibility (B.P.R.). The B.P.R. contacted counsel on May 13, 2008, but
counsel did not respond. The B.P.R. sent a second letter to counsel on May 28, 2008.
Counsel responded to the second letter by saying that he would forward a copy of his files
to Petitioner. According to Petitioner, the files did not contain the August 2003 opinion.

      Petitioner filed a motion for a delayed appeal in our supreme court on September 12,
2008. The motion was denied on October 7, 2008.

       On November 17, 2008, Petitioner filed the present petition for post-conviction relief,
seeking permission to file a delayed appeal of this court’s direct appeal decision. He also
sought to collaterally attack his convictions, citing a number of reasons why he should be
granted post-conviction relief. The post-conviction court summarily denied the petition as
untimely. It did so without an evidentiary hearing and without any analysis of whether due
process considerations should toll the statute of limitations.

        Petitioner now appeals the post-conviction court’s order. Specifically, he argues that
although his petition was untimely, due process concerns should toll the limitations period
and allow him to raise his claims. Petitioner alleges that counsel’s fraudulent concealment
of this court’s direct appeal decision prevented him from seeking timely post-conviction

        1
          The facts surrounding Petitioner’s convictions are detailed in our direct appeal opinion, which is
cited below.

                                                    -2-
relief. The lengthy delay between filings is justified, Petitioner says, because counsel advised
him that his case would be in the appellate courts for “a long time,” which Petitioner
construed to mean several years.

        The State contends that the petition is untimely and the post-conviction court’s order
should be affirmed. It argues that Petitioner has not alleged that counsel misrepresented
anything, but rather has only alleged that his attorney failed to inform him of the direct appeal
decision. It also argues that it was unreasonable for Petitioner to wait five years before filing
his petition, and therefore due process does not demand the statute of limitations be tolled.

                                         II. Analysis

        We agree that the petition is untimely. Although the Post-Conviction Procedure Act
allows a petitioner to seek a delayed appeal in certain circumstances, a petitioner seeking
such relief must still comply with the Act’s statute of limitations. See Tenn. Code Ann. § 40-
30-113; see also Handley v. State, 889 S.W.2d 223, 224 (Tenn. Crim. App. 1994). Tennessee
Code section 40-30-102(a) clearly provides that petitions for post-conviction relief must be
filed within one year of the date on which the judgment became final. This jurisdictional
limitation carves out only three exceptions, none of which apply here. See Tenn. Code Ann.
§ 40-30-102(b). Our direct appeal decision was issued on August 12, 2003. Because
Petitioner did not file a petition for rehearing, he had sixty days to file a petition for review
in the supreme court, see Tenn. R. App. P. 11(b), and one year to file his petition for post-
conviction review, see Tenn. Code Ann. § 40-30-102(a). He did neither. His petition thus
falls outside the statute of limitations.

        However, our supreme court has held that the statute of limitations may be tolled in
cases where its strict application would deny the petitioner “a reasonable opportunity to
assert a claim in a meaningful time and manner.” Williams v. State, 44 S.W.3d 464, 468
(Tenn. 2001) (quoting Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000)). In Williams, the
attorney failed to timely take the proper steps to withdraw and inform Williams of his rights.
44 S.W.3d at 465-67. Williams was thus denied his right to have the supreme court pass on
his case. Id. Nevertheless, the post-conviction court dismissed his petition for post-
conviction relief as untimely. Id. The supreme court held that Williams was entitled to a
hearing to determine whether due process demanded the statute of limitations be tolled. Id.
at 468. The court was “concerned” that strict application of the statute of limitations would
curtail, “through no fault of his own,” Williams’ due process right to have a reasonable
opportunity to assert his claim. Id. The court reasoned that “an attorney’s misrepresentation,
either attributable to deception or other misconduct,” is “beyond a defendant’s control.” Id.
at 469. Therefore if, as a result, “a defendant erroneously believes that counsel is continuing
to represent him . . . then the defendant is essentially precluded from pursuing certain

                                               -3-
remedies independently.” Id. The issue in Williams, then, was whether the petitioner “was,
in fact, misled to believe that counsel was continuing the appeals process, thereby requiring
the tolling of the limitations period.” Id. at 471. To resolve that issue, the post-conviction
court needed to hold an evidentiary hearing to further develop the record because “[t]o
summarily terminate his claim without further inquiry would be an ‘abridgement of both
direct and post-conviction avenues of appeal-without ever reaching the merits of the . . . case
. . . [and] would be patently unfair.’” Id. (quoting Crittenden v. State, 978 S.W.2d 929
(Tenn.1998)).

         The question in this case is whether due process considerations toll the statute of
limitations in order to allow Petitioner’s petition. On the sparse record before us, we cannot
close that door on Petitioner. The uncontroverted petition asserts that Petitioner’s counsel
essentially abandoned him after he filed the appeal in this court. Counsel did not convey to
Petitioner the August 2003 decision of this court. Nor did he withdraw from the case or even
indicate to Petitioner that he intended to withdraw. Instead, counsel waited nearly five and
a half years to even communicate with his client again–and then only at the behest of the
B.P.R., who was conducting an investigation that Petitioner says he initiated. Moreover,
Petitioner claims that counsel ignored the first letter from the B.P.R., responding only after
the second letter was sent. According to Petitioner, when counsel did contact him, counsel
still failed to inform Petitioner that the court had issued its opinion in his case.

       The State contends that Petitioner’s excuse for his tardiness is mere attorney
negligence. We disagree. Petitioner’s allegations suggest that counsel deceived Petitioner
by “failing to properly withdraw from representation and . . . failing to notify [Petitioner] that
no application for permission to appeal would be filed.” Williams, 44 S.W.3d at 468 n.7.
As such, we conclude that Petitioner’s claim satisfies Williams’ threshold for requiring an
evidentiary hearing.
                                     III. Conclusion

      For the foregoing reasons, we reverse the judgment of the post-conviction court and
remand this case for the appointment of counsel and for an evidentiary hearing regarding
whether due process considerations require that the statute of limitations should be tolled.

                                                     _________________________________
                                                     NORMA McGEE OGLE, JUDGE




                                               -4-
