         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs January 14, 2004

                    TONY G. SMITH v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                            No. 94-D-2124    Steve Dozier, Judge



                     No. M2003-00598-CCA-R3-PC - Filed March 4, 2004


The petitioner, Tony G. Smith, appeals as of right from the order of the Davidson County Criminal
Court holding that his petition for post-conviction relief was barred by the statute of limitations and
dismissing the petition without appointing counsel or holding an evidentiary hearing. The petitioner
is seeking relief from his convictions for attempted first degree murder and stalking and his effective
twenty-nine-year sentence. The petitioner contends that the trial court erred in its finding that the
petitioner did not allege any circumstances that would qualify as an exception to the one-year statute
of limitations for filing post-conviction relief. We affirm the trial court’s dismissal of the petition.

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

JOSEPH M. TIPTON , J., delivered the opinion of the court, in which JAMES CURWOOD WITT , JR. and
JOHN EVERETT WILLIAMS, joined.

Tony G. Smith, Nashville, Tennessee, pro se.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;
Victor S. Johnson, III, District Attorney General; and Stephen Douglas Thurman, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                              OPINION

        In 1995, the petitioner was convicted of attempted first degree murder and stalking, and this
court affirmed the conviction on May 16, 1997. See State v. Tony G. Smith, No. 01C01-9603-CR-
00084, Davidson County (Tenn. Crim. App. May 16, 1997), app. denied (Tenn. Jan. 26, 1998). The
Tennessee Supreme Court denied the petitioner’s application for permission to appeal on January
26, 1998. On February 12, 2002, the petitioner filed his pro se petition for post-conviction relief,
claiming that he received the ineffective assistance of counsel. The trial court dismissed the petition
without an evidentiary hearing on the basis that the petitioner filed his petition outside the one-year
statute of limitations. See T.C.A. § 40-30-102(a) (2003). Although the trial court noted that T.C.A.
§ 40-30-102(b) (2003) provided exceptions to the one-year statute of limitations period, it
determined that none of the exceptions applied in this case.

         First, we note that if the statute of limitations for the post-conviction petition has not been
tolled, the petitioner is not entitled to the appointment of counsel, an evidentiary hearing, or a ruling
by the trial court on each ground for relief raised by the petitioner. See Watkins v. State, 903 S.W.2d
302, 304 (Tenn. 1995). If it plainly appears from the petition and other relevant case proceedings
available to the trial court that the statute of limitations has run, the trial court is required to enter
an order that dismisses the petition and provides the reasons and facts that support the dismissal.
See T.C.A. § 40-30-106(b) (2003). Thus, the statutory rights claimed by the petitioner in this case
would not be triggered.

        Pursuant to T.C.A. § 40-30-102(a) (2003):

                [A] person in custody under a sentence of a court of this state must
                petition for post-conviction relief under this part within one (1) 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 (1) year
                of the date on which the judgment became final, or consideration of
                such petition shall be barred. 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 . . . .

Based upon the face of the petition and the court records contained in the record on appeal, the
statute of limitations ran long before the filing of the petition.

        However, the petitioner contends that application of the statute of limitations to bar
post-conviction relief to a mentally incompetent petitioner who has been unable to file a timely
petition violates due process. He cites Watkins, in which our supreme court held that “because a
petitioner who was incompetent throughout the limitations period would be denied the opportunity
to challenge his conviction in a meaningful manner, the failure to toll the limitations period would
deny such a petitioner a fair and reasonable opportunity for the bringing of the petition, and thus,
would violate due process.” 903 S.W.2d at 307. In response, the state asserts that the petitioner has
not alleged any circumstances that would qualify as an exception to the one-year statute of
limitations for filing for post-conviction relief.

        If a petitioner files a petition for post-conviction relief outside the one-year statute of
limitations, a court may still consider it if (1) a new constitutional right has been recognized; (2) the
petitioner’s innocence has been established by new scientific evidence; or (3) a previous conviction
that enhanced the petitioner’s sentence has been held to be invalid. T.C.A. § 40-30-102(b)(1)-(3)
(2003). A court may also consider an untimely petition for post-conviction relief if applying the
statute of limitations would deny the petitioner due process. Burford 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


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mandates the tolling of the statute of limitations under the 1995 Sentencing Act during periods of
a petitioner’s mental incompetence).

       With regard to a claimed mental incompetence, our supreme court has provided the following
regarding a petitioner’s pleading requirements:

                [T]o make a prima facie showing of incompetence requiring tolling
                of the limitations period, a post-conviction petition must include
                specific factual allegations that demonstrate the petitioner’s inability
                to manage his personal affairs or understand his legal rights and
                liabilities. Unsupported, conclusory, or general allegations of mental
                illness will not be sufficient to require tolling and prevent summary
                dismissal under Tenn. Code Ann. § 40-30-206(b) & (f). The required
                prima facie showing may be satisfied by attaching to the petition
                affidavits, depositions, medical reports, or other credible evidence
                that contain specific factual allegations showing the petitioner’s
                incompetence. While affidavits and depositions of mental health
                professionals may be utilized, they are not essential, and a petitioner
                may rely upon affidavits and depositions from family members,
                prison officials, attorneys, or any other person who has knowledge of
                facts that demonstrate either the petitioner’s inability to manage his
                personal affairs or the petitioner’s inability to understand his legal
                rights and liabilities.

State v. Nix, 40 S.W.3d 459, 462-64 (Tenn. 2001) (citations omitted).

         In the present case, the petitioner has not alleged sufficient facts that, taken as true, warrant
a legal conclusion that the petitioner was mentally incompetent to file a post-conviction claim at all
times material to the statute of limitations. The petition purports to be signed by the petitioner but
prepared by another inmate as a “next friend” of the petitioner. The petition states that the petitioner
is a mentally challenged person with a history of mental illness and that he is unable either to manage
his personal affairs or to understand his legal rights and liabilities. In support of this claim, he offers
the affidavit of his mother, Lucy Clark. The affidavit, however, only states that a trial attorney of
the petitioner told her that he would ask the trial court for a mental health evaluation for the
petitioner but that the petitioner was never evaluated. The affidavit contains no information about
the petitioner’s mental state during times material to the statute of limitations.

        The petitioner next contends that his placement in a mental health facility in the Tennessee
Department of Correction is sufficient prima facie evidence that the petitioner’s mental condition
requires that the statute of limitations be tolled. Residing in a state mental health facility, however,
does not, by itself, demonstrate that he is unable to manage his affairs or unable to understand his
legal rights and liabilities. The petitioner does not specify how his mental condition limited him
after his direct appeal was denied by the supreme court, and he does not state any specific reasons


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why he is in the mental health facility. In his petition, the petitioner has made a conclusory argument
that because he resides in a mental health institution, he is mentally incompetent and unable to
manage his affairs or appreciate his legal rights and liabilities. Unsupported and conclusory claims
such as these are insufficient to make a prima facie showing that the one-year statute of limitations
should be tolled. See Nix, 40 S.W.3d at 464. The trial court’s ruling that the petitioner had not
alleged any circumstances that would qualify as an exception to the one-year statute of limitations
for filing post-conviction relief was correct, and its dismissal of the petition was proper.

       Based on the foregoing and the record as a whole, we affirm the judgment of the trial court.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, JUDGE




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