         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON


                       CARLOS RICE v. STATE OF TENNESSEE

                   Direct Appeal from the Criminal Court for Shelby County
                             No. P-18003 W. Fred Axley, Judge



                       No. W2004-02043-CCA-R3-PC - Filed April 22, 2005




This matter is before the Court upon the State’s motion to affirm the judgement of the trial court
pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner, Carlos Rice, appeals
the trial court’s denial of post-conviction relief. The petition was filed outside the applicable statute
of limitation and is, therefore, time-barred. Accordingly, we affirm the trial court’s dismissal.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and J.C.
MCLIN , JJ. joined.

Carlos Rice, pro se.

Paul G. Summers, Attorney General & Reporter; Seth P. Kestner, Assistant Attorney General, for
the appellee, the State of Tennessee.



                                    MEMORANDUM OPINION


        On February 23, 1996, Petitioner Rice entered a plea of guilty to one count of felony murder
and one count of attempt to commit second degree murder. For these offenses, Petitioner received
an effective sentence of life imprisonment. No direct appeal was taken. The Petitioner alleges that,
on January 10, 1997, he filed a petition for post-conviction relief, alleging, inter alia, the ineffective



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assistance of counsel. Petitioner further alleges that he was “coerced” by counsel of record into
withdrawing the petition. The petition was then dismissed or denied.

        On July 13, 2004, Petitioner filed a motion to reopen post-conviction proceedings. As
grounds for relief, Petitioner relief “exclusively upon ineffective assistance of counsel.” Petitioner
asserted that prior litigation of these claims was precluded by appointed counsel. While
acknowledging the applicable statute of limitations, Petitioner claimed that appointed counsel, a
representative of the State, impeded Petitioner’s efforts to comply with the statute of limitations.
Thus, Petitioner argued that the statute of limitations should be tolled. By order entered July 23,
2004, the trial court summarily dismissed the petition as barred by the applicable statute of
limitations. Petitioner timely filed a notice of appeal document.

        Petitioner’s convictions became final on March 23, 1996. Thus, under the applicable statute
of limitations, Petitioner had until March 23, 1997, to file a petition for post-conviction relief. See
Tenn. Code Ann. § 40-30-202(a) (renumbered 40-30-102 (2003 Repl.)). Under the Post-Conviction
Procedure Act of 1995, exceptions to the statute of limitations are explicitly set forth, i.e., (1) claims
based upon a new rule of constitutional law, (2) claims based upon new scientific evidence showing
innocence, and (3) claims based upon enhanced sentences that were enhanced because of convictions
subsequently found to be illegal. See Tenn. Code Ann. § 40-30-102(b)(1-3). Petitioner has failed
to assert one of these exceptions for tolling the statute.

         A court may also consider an untimely petition for post-conviction relief if applying the
statute of limitations would deny the petitioner due process. Buford v. State, 845 S.W.2d 204, 208
(Tenn. 1992); see, e.g., Seals v. State, 23 S.W.3d 272 (Tenn. 2000) (holding that due process
mandates the tolling of the statute of limitations under the 1995 Sentencing Act during periods of
a petitioner’s mental incompetence). Additionally, circumstances beyond a petitioner’s control may
justify tolling the statute of limitations. For example, in Williams v. State, 44 S.W.3d 464, 471
(Tenn. 2001), our supreme court recognized that the petitioner filed his petition for post-conviction
relief after the statute of limitations had expired but affirmed this Court’s remanding the case for an
evidentiary hearing in order for the trial court to address the petitioner’s allegation that his attorney’s
misrepresentation caused his petition to be late-filed, “thereby requiring the tolling of the limitations
period.” The Petitioner asserts that his appointed counsel coerced him into dismissing his timely
filed petition for post-conviction relief in 1997. Even if this allegation, unsupported by the record,
is taken as true, this fact alone fails to excuse the Petitioner’s failure to file a petition for post-
conviction relief until July 2004, over seven years after dismissal of the first petition. Moreover,
although the petition is captioned a motion to reopen post-conviction proceedings, the petition fails
to allege a cognizable ground for reopening the same under section 40-30-117(a)(1-3), Tennessee
Code Annotated.

        The Petitioner’s allegation that his court-appointed attorney, acting as an agent of the State
of Tennessee, wrongfully coerced him into withdrawing his timely filed petition for post-conviction
relief does not suffice to toll the statute of limitations where Petitioner did not file the present
petition until July 2004, over seven years after the first dismissal. Accordingly, the claims raised by


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Petitioner in the present petition are time-barred. The post-conviction court did not err in summarily
dismissing the petition. Tenn. Code Ann. § 40-30-106(b).

       Accordingly, the State’s motion is granted. The judgment of the trial court is affirmed in
accordance with Rule 20, Rules of the Court of Criminal Appeals.




                                               ___________________________________
                                               JOHN EVERETT WILLIAMS, JUDGE




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