        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs June 22, 2010


                  JOSHUA JACOBS v. STATE OF TENNESSEE

                     Appeal from the Circuit Court for Warren County
                          No. F10408 Larry B. Stanley, Judge



                 No. M2009-02265-CCA-R3-PC - Filed September 15, 2010


On January 17, 2007, Petitioner, Joshua Jacobs, pled guilty in the Warren County Circuit
Court to one count of first degree murder, one count of aggravated burglary, and one count
of aggravated rape. On October 7, 2009, the post-conviction court received and filed a pro
se petition for post-conviction relief for Petitioner. The post-conviction court summarily
dismissed the petition as time-barred. On appeal to this Court, Petitioner argues that the post-
conviction court erred because applying the statute of limitations to his case is a denial of due
process. We have reviewed the record on appeal and find that there is no violation of
Petitioner’s due process rights in the dismissal of his time-barred petition. Therefore, we
affirm the decision of the post-conviction court.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which T HOMAS T. W OODALL and
J.C. M CL IN, JJ., joined.

Joshua Jacobs, Pro Se, Whiteville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; and Lisa Zavogiannis, District Attorney General, for the appellee, State of
Tennessee.
                                          OPINION

                               FACTUAL BACKGROUND

        On January 17, 2007, Petitioner pled guilty to one count of first degree murder, one
count of aggravated burglary, and one count of aggravated rape. The trial court sentenced
Petitioner to life without parole for the first degree murder, six years for the aggravated
burglary, and twenty-five years for the aggravated rape. The six-year sentence for aggravated
burglary was ordered to be served concurrently with the life sentence for first degree murder.
The twenty-five-year sentence for aggravated rape was ordered to be served consecutively
to the sentences for first degree murder and aggravated burglary.

        On September 28, 2009, Petitioner filed a pro se petition for post-conviction relief
with the prison mail room authorities. The post-conviction court filed the petition on October
7, 2009. In his petition, Petitioner admitted that the petition had been filed after the statute
of limitations had run. He stated that the “untimely filing [was] the result of his attorney’s
abandonment of the case without notifying the petition[er] of his right to proceed further.”
He argued that tolling the statute of limitations would not prejudice the State. He pointed out
that only one and a half years had passed since the entry of the judgments. He also argued
that “his ignorance of the legal requirements . . . is reasonable, due to his youth . . ., his
Mental Disabilities known to the State, and inexperience with the criminal justice system,
other than juvenile offenses.” In addition, Petitioner argued that the dismissal of the petition
would be a denial of due process. Petitioner also alleged that he was afforded ineffective
assistance of counsel leading up to and during the entry of his guilty plea.

       On October 9, 2009, the post-conviction court summarily dismissed the petition
because it was time-barred by the statute of limitations. Petitioner filed a timely notice of
appeal.

                                         ANALYSIS

       On appeal, Petitioner argues that the post-conviction court erred in dismissing his
petition. The State argues that there is no basis for the tolling of the statute of limitations.

        Under the Post-Conviction Procedure Act, a petition for post-conviction relief must
be filed within one 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 year of the date on which the
judgment became final. T.C.A. § 40-30-102(a). Unless one of the enumerated exceptions

                                              -2-
applies, a court does not have jurisdiction to consider an untimely petition. See T.C.A. §
40-30-102(b). Tennessee Code Annotated section 40-30-102(b) states:


       (b) No court shall have jurisdiction to consider a petition filed after the
       expiration of the limitations period unless:

       (1) The claim in the petition is based upon a final ruling of an appellate court
       establishing a constitutional right that was not recognized as existing at the
       time of trial, if retrospective application of that right is required. The petition
       must be filed within one (1) year of the ruling of the highest state appellate
       court or the United States supreme court establishing a constitutional right that
       was not recognized as existing at the time of trial;

       (2) The claim in the petition is based upon new scientific evidence establishing
       that the petitioner is actually innocent of the offense or offenses for which the
       petitioner was convicted; or

       (3) The claim asserted in the petition seeks relief from a sentence that was
       enhanced because of a previous conviction and the conviction in the case in
       which the claim is asserted was not a guilty plea with an agreed sentence, and
       the previous conviction has subsequently been held to be invalid, in which case
       the petition must be filed within one (1) year of the finality of the ruling
       holding the previous conviction to be invalid.


        In the present case, the post-conviction petition was filed more than one year after the
date of the final action by the highest court to which an appeal was taken and thus well
outside the statute of limitations. The post-conviction court properly held that Petitioner
failed to show that one of the exceptions to the one-year deadline listed in the statute was
applicable.

       In addition to the exceptions set out in the statute, the courts in this State have found
that due process concerns can toll the statute of limitations in certain factual situations. See
Williams v. State, 44 S.W.3d 464 (Tenn. 2001); Sands v. State, 903 S.W.2d 297 (Tenn.
1995); Burford v. State, 845 S.W.2d 204 (Tenn. 1992).

      Petitioner relies on Williams v. State, 44 S.W.3d 464 (Tenn. 2001), to support his
argument. Williams is the most recent in a line of cases including Burford v. State, 845
S.W.2d 204 (Tenn. 1992) and Sands v. State, 903 S.W.2d 297 (Tenn. 1995), analyzing when

                                               -3-
due process limitations toll the statute of limitations. In all three of these cases, our supreme
court decided that the statute of limitations for post-conviction relief could be tolled in the
factual situations presented. In Burford, the petitioner’s sentence was enhanced by previous
convictions that had subsequently been declared invalid, but not invalidated in time for him
to meet the statute of limitations for filing his post-conviction petition. Burford, 845 S.W.2d
at 208. Our supreme court stated that because the petitioner was in a procedural trap, the
petitioner’s due process rights would be violated by not allowing a tolling of the statute of
limitations and the filing of a post-conviction petition. Burford, 845 S.W.2d at 208-09.

      In Sands, our supreme court analyzed Burford and set out the basic rule derived from
Burford and how to go about applying this rule in future cases. The supreme court stated:


       [I]t will be helpful to summarize the basic rule to be derived from Burford:
       that, in certain circumstances, due process prohibits the strict application of the
       post-conviction statute of limitations to bar a petitioner’s claim when the
       grounds for relief, whether legal or factual, arise after the “final action of the
       highest state appellate court to which an appeal is taken”-or, in other words,
       when the grounds arise after the point at which the limitations period would
       normally have begun to run. In applying the Burford rule to specific factual
       situations, courts should utilize a three-step process: (1) determine when the
       limitations period would normally have begun to run; (2) determine whether
       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.
       In making this final determination, courts should carefully weigh the
       petitioner’s liberty interest in “collaterally attacking constitutional violations
       occurring during the convictions process,” Burford, 845 S.W.2d at 207,
       against the State’s interest in preventing the litigation of “stale and fraudulent
       claims.” Id. at 208.


Sands, 903 S.W.2d at 301 (footnote omitted). However, after going through this analysis,
the supreme court concluded that the statute of limitations had not been tolled in the Sands
situation.

        In Williams v. State, 44 S.W.3d 464 (Tenn. 2001), the supreme court again held that
the statute of limitations was tolled by the factual and legal situation of the petitioner. In
Williams, there was some dispute over whether the petitioner’s trial counsel continued to

                                               -4-
represent him and how much the petitioner actually knew about the progress of his appeals.
The supreme court stated that the question was whether the petitioner had been “misled to
believe that [his trial] counsel was continuing the appeals process . . . .” Id. at 471. The
supreme court remanded the case to the trial court for it to determine whether the statute must
be tolled due to possible attorney misrepresentation. Id.

        This Court has held that a petitioner’s personal ignorance of post-conviction
procedures, “even when alleged to stem from an attorney’s negligent failure to render advice
to the petitioner, does not toll the running of the statute” of limitations. State v. Phillips, 904
S.W.2d 123, 124 (Tenn. Crim. App. 1995). Further, we have previously determined that
mere lack of knowledge that a claim exists does not toll the statute of limitations. See, e.g.,
Jason Earl Hill v. State, No. E2005-00968-CCA-R3-PC, 2006 WL 389667, at *4 (Tenn.
Crim. App., at Knoxville, Feb. 16, 2006), perm. app. denied, (Tenn. Sept. 5, 2006) (holding
that petitioner’s lack of knowledge did not toll the statute of limitations when he argued that
his claim for relief was not discovered until the conviction was used to enhance a subsequent
federal sentence); Guillermo Matiaz Juan v. State, No. 03C01-9708-CR-00318, 1999 WL
76453, at *1-2 (Tenn. Crim. App., at Knoxville, Feb. 18, 1999), perm. app. denied, (Tenn.
July 12, 1999) (concluding that ignorance of the law did not bar application of the
post-conviction statute of limitations).

       Petitioner has not shown a due process violation as required in the Burford line of
cases to toll the statute of limitations. Likewise, he has not met any of the exceptions set out
in Tennessee Code Annotated section 40-30-102(b). Therefore, Petitioner has asserted no
valid reason to toll the statute of limitations.




                                        CONCLUSION

       For the above reasons we hold that the post-conviction court was correct in dismissing
the petition for post-conviction relief.




                                             ___________________________________
                                             JERRY L. SMITH, JUDGE




                                                -5-
