        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                     Assigned on Briefs July 23, 2013 at Knoxville

              DAVID ALLEN LACKEY V. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                      No. 2000-B-1103     Seth Norman, Judge


               No. M2012-01482-CCA-R3-PC - Filed September 17, 2013


The petitioner, David Allen Lackey, appeals the determination of the post-conviction court
that due process did not mandate a waiver of the statute of limitations. The petitioner is
currently serving a life sentence in the Department of Correction following his conviction
for first degree murder and theft of property valued under $500. Following a direct appeal,
the petitioner filed an untimely petition for post-conviction relief. After the petition was
denied by the post-conviction court, this court remanded the case for a determination of
whether the petitioner’s due process rights required that the statute of limitations be tolled.
After a hearing, the post-conviction court determined that the petitioner had failed to carry
his burden of establishing his right to a tolling of the statute of limitations and dismissed the
petition. The petitioner contends that the court’s determination was error. Following review
of the record, we affirm the dismissal of the petition as untimely.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and J EFFREY S. B IVINS, JJ., joined.

Kara Everett, Mt. Juliet, Tennessee, for the appellant, David Allen Lackey.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Bret Gunn, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                          OPINION

                                     Procedural History

       The petitioner was found guilty by a jury of premeditated murder, felony murder
during the perpetration of a theft, and theft of property valued under $500. State v. David
Allen Lackey, No. M2001-01043-CCA-R3-CD, 2002 Tenn. Crim. App. LEXIS 759, *1
(Tenn. Crim. App., at Nashville, Sept. 6, 2002). Following merger of the two murder
convictions, the petitioner was sentenced to a term of life imprisonment to be served
concurrently with a sentence of eleven months and twenty-nine days for the misdemeanor
theft conviction. Id. at *1-2. Thereafter, the petitioner filed a direct appeal with the court
challenging the sufficiency of the evidence and the trial court’s denial of his motion to
suppress his statements to police. Id. at *2 Following review, this court affirmed the
convictions on September 6, 2002. No permission to appeal was filed with the Tennessee
Supreme Court. Contained within the record is a motion submitted by trial counsel to
withdraw as counsel of record. Also within the record is a letter written by trial counsel to
the petitioner in which trial counsel is clear that he will not be filing for permission to appeal
to the Tennessee Supreme Court. In the letter, trial counsel also delineated the method to file
if the petitioner chose to proceed pro se with the application.

        On October 31, 2003, the petitioner filed a pro se petition for post-conviction relief.
David Lackey v. State, No. M2004-00558-CCA-R3-PC, 2005 Tenn. Crim. App. LEXIS 317,
*2 (Tenn. Crim. App., at Nashville, Mar. 30, 2005). The post-conviction court concluded
that the petition was timely filed but failed to include any specific grounds or factual basis
to support the petitioner’s allegations. The petitioner was allowed thirty days to file an
amended petition. Id. However, the post-conviction court determined that the amended
petition also contained only “again lists vague and ambiguous claims without proper support
consisting of specific allegations” and, further, lacked the required verification under oath.
Id. at *3. As such, the court denied the amended petition.

         The petitioner appealed that denial to this court, which concluded that the petition for
relief had not been timely filed. Id. at *6. Based upon that finding, this court affirmed the
post-conviction court’s dismissal of the petition. However, the petitioner filed a timely
petition for rehearing with the court, alleging that he “was misled to believe that his counsel
was continuing his appeals,” and due process requires the tolling of the statute of limitations.
David Lackey v. State, No. M2004-00558-CCA-R3-PC, 2005 Tenn. Crim. App. LEXIS 531,
*4 (Tenn. Crim. App., at Nashville, May 31, 2005). After consideration, this court withdrew
its initial opinion and remanded the matter to the post-conviction court for a determination
of whether the petitioner’s due process rights required that the court consider the petition.
Id. at *8.

       Thereafter, on June 22, 2010, the post-conviction court held an evidentiary hearing
to determine whether due process required tolling of the statute of limitations and further
consideration of the petitioner’s post-conviction petition. At the hearing, the petitioner
proceeded under the theory that tolling was required because he had been mentally

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incompetent during the period when the statute of limitations ran. He called multiple
witnesses to testify and introduced medical and psychological reports in support of his
theory.

         The first witness called for the petitioner was James Michael Stanfield, Jr., a fellow
inmate who had been incarcerated with the petitioner for approximately ten years. Mr.
Stanfield testified that the petitioner had problems adjusting to life in prison, especially
because of his youth and the long sentence he had received. Mr. Stanfield did acknowledge
that it was typical to be depressed when receiving a life sentence, which he also had received.
According to Mr. Stanfield, the petitioner “embraced despair” and began using drugs to help
him cope, a common action in prison. He related that the petitioner used whatever drug was
available, including morphine, heroin, and marijuana. He stated that the petitioner just
“pretty much stayed intoxicated on something” all the time.

        Mr. Stanfield testified that he assisted the petitioner in filing the amended petition for
post-conviction relief. He testified that during this period of time, the petitioner was still
heavily using drugs. Mr. Stanfield did not believe that the petitioner had any understanding
of what was involved with a post-conviction, even stating that the petitioner was
“procedurally clueless.” He testified that he attempted to explain the process, but it did not
help. He also said that he reviewed all correspondence that the petitioner received in the mail
and tried to aid in the petitioner’s understanding of that as well. Mr. Stanfield believed that
the petitioner was showing signs of being depressed during this period and seemed to have
“given up hope in life.”

        The petitioner next called Joseph Lance Reisner, another inmate who had served time
with the petitioner, even sharing a cell with him at one point. Mr. Reisner stated that he and
the petitioner often “got high” together. According to Mr. Reisner, who was serving three
consecutive life sentences, the usage of drugs was common among the inmates in prison, and,
in fact, he could not survive without it. Mr. Reisner also related that the petitioner was
transferred to a different unit in the prison, where his drug usage increased as he was with
a “rougher crowd.” He stated that it was hard to even have a conversation with the petitioner
because of the drug usage. It was during this period that the post-conviction proceedings
were occurring.

       Mr. Reisner testified that he did not believe the petitioner had understood any of the
paperwork he received regarding his case. He also stated that he believed that the petitioner
was severely depressed during this time, although acknowledging that was a common
complaint among those with long sentences. He related that the petitioner was capable of
functioning within the prison system. However, according to Mr. Reisner, the petitioner had
several jobs within the prison. He indicated that the petitioner had worked in the kitchen

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prior to being released from that job for smoking marijuana while on the job. Mr. Reisner
was an instructor in the prison barber shop, and the petitioner was taking a cosmetology
class. Mr. Reisner testified that the petitioner was talented with cutting hair, but he had
problems comprehending the academic portion of the course. Mr. Reisner testified that he
helped the petitioner by giving the petitioner multiple explanations for the technical aspects.
He stated that some concepts the petitioner was simply not able to understand at all.
However, Mr. Reisner stated that the petitioner understood “common sense things” easily,
but, when reading involved terms of “jargon” or chemical processes, the petitioner needed
further explanation.

        The next witness called was Nancy Hall, the petitioner’s biological mother. She
testified that she had only raised the petitioner until he was three years old, at which time her
ex-husband took him from her. She did not see him again for over twenty years. Ms. Hall
testified that the petitioner was a sickly child and that there were some instances of
impairment exhibited by him. For instance, she testified that the petitioner refused to cry
when he was hungry or cold. She also related the circumstances of an automobile accident
which occurred when the petitioner was thirteen months old. He was ejected from a car,
landing on his face which pushed the bone in his nose into his brain. As a result, the
petitioner was in the hospital approximately one month. After he was released, the petitioner
seemed to have issues with his attention span. She testified that he showed signs of brain and
behavioral limitations, as well as an inability to process basic information.

        The final witness to testify was the petitioner’s sister, Ms. Jennifer Mae Sizemore.
She recounted how she and the petitioner had been placed in two foster homes prior to being
placed in the home in which they were eventually adopted. She testified that she and the
petitioner got in lots of trouble during their childhood, with the petitioner even being sent to
a camp. Ms. Sizemore also stated that the petitioner made failing grades in school even when
she helped him with his homework. She testified that the petitioner just did not comprehend
the lessons even when they were explained multiple times. She also stated that the petitioner
had been recommended for special education classes. Ms. Sizemore also related that the
petitioner had been treated for depression and schizophrenia. She also testified that the
petitioner began using drugs at the age of twelve or thirteen.

       Also included in the evidence were multiple medical reports for the petitioner.
According to one report, at the age of fourteen, mental health professionals diagnosed the
petitioner with mood disorders. However, the report also indicated that he was oriented to
person, place, and time, and he did not manifest any evidence of disturbance in thought or
perception.

       Another of the exhibits established that the petitioner was often truant and was a

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behavioral problem both at school and home. In 1996, after being expelled from all Wilson
County Schools, he was placed in the Department of Human Services’ custody. While in
custody, he was placed in special education classes because of a learning disability in math.
In an assessment performed on the petitioner, the report concluded that the petitioner had
average intelligence but performed below his grade level in math and reading. The report
did not offer a diagnosis of the petitioner as being mentally incompetent.

       The petitioner filed an affidavit in support of his petition. The general contents of the
affidavit are that he did not understand the letter he received from trial counsel regarding his
withdrawal and not filing an application for permission to appeal. According to the affidavit,
the petitioner was “stoned” in 2002 when he read the letter. He further alleged that he re-
read the letter three years later, after he had gotten sober, and claimed he still did not
understand the contents.

      After hearing the evidence presented, the post-conviction court took the matter under
advisement. Thereafter, the court issued a written order dismissing the petition for relief.
The petitioner has now timely appealed that dismissal.

                                           Analysis

       On appeal, the petitioner contends that the trial court erred in concluding that due
process concerns did not toll the statute of limitations in his post-conviction case. He asserts
that the proof supplied to the court showed that he was “mentally unable to manage his
personal affairs or understand his legal rights and liabilities during the period in question.”

       Relief pursuant to a post-conviction proceeding is available only where the petitioner
demonstrates that his or her “conviction or sentence is void or voidable because of the
abridgment of any right guaranteed by the Constitution of Tennessee or the Constitution of
the United States.” T.C.A. § 40-30-103 (2010). To prevail on a post-conviction claim of a
constitutional violation, the petitioner must prove his or her allegation of fact by clear and
convincing evidence. T.C.A. § 40-30-110(f).

       This court will not overturn a post-conviction court’s findings of fact unless the
preponderance of the evidence is otherwise. Pylant v. State, 263 S.W.3d 854, 867 (Tenn.
2008). This court defers to the post-conviction court’s findings with respect to the witnesses’
credibility, the weight and value of their testimony, and the resolution of factual issues
presented by the evidence. Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). With respect
to issues raising mixed questions of law and fact, however, including claims of ineffective
assistance of counsel, appellate review is de novo with no presumption of correctness.
Pylant, 263 S.W.3d at 867-68.

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        Under Tennessee Code Annotated section 40-30-102(a), a post-conviction petition
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 (1) year of the date on
which the judgment became final.” The statute explicitly states, “The statute of limitations
shall not be tolled for any reason, including any tolling or saving provision otherwise
available at law or equity.” Id. It further stresses that “[t]ime 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 the action and is a
condition upon its exercise.” Id. In the event that a petitioner files a petition for post-
conviction relief outside the one year statute of limitations, the trial court is required to
summarily dismiss the petition. T.C.A. § 40-30-106(b).

        Subsection (b) of the statute sets forth the three narrow exceptions under which an
untimely petition may be considered: (1) when the claim is based upon a final ruling of an
appellate court establishing a constitutional right that was not recognized at the time of trial
and which requires retrospective application; (2) when the claim is based upon new scientific
evidence establishing that the petitioner is innocent; and (3) when a previous conviction that
was not a guilty plea and which was used to enhance the petitioner’s sentence has been held
to be invalid. Id. § 40-30-102(b). The post-conviction court must also consider an otherwise
untimely petition if the application of the statute of limitations would be a denial of due
process. Seals v. State, 23 S.W.3d 272, 278-79 (Tenn. 2000).

       [B]efore a state may terminate a claim for failure to comply with procedural
       requirements such as statutes of limitations, due process requires that a
       potential litigant be provided an opportunity for the “presentation of claims at
       a meaningful time and in a meaningful manner.” The test is “whether the time
       period provides an applicant a reasonable opportunity to have the claimed
       issue heard and determined.”

Id. at 277-278 (quoting Burford v. State, 845 S.W.2d 204, 207 (Tenn. 1992)).

        In the recent case of Artis Whitehead v. State, our supreme court discussed the matter
of due process in a post-conviction context. The court identified three circumstances in
which due process requires tolling the post-conviction statute of limitations. Artis Whitehead
v. State, ___ S.W.3d ___, 2013 Tenn. LEXIS 310, at *19 (Tenn., Mar. 21, 2013). The first
of the three circumstances involves claims for relief that arise after the statute of limitations
has expired. Id. The second due process basis for tolling the statute of limitations involves
prisoners whose mental incompetence prevents them from complying with the statute’s
deadline. Id. at *20-21. The third exception is when attorney misconduct necessitates the
tolling of the statute of limitations. Id. at 21.

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        The petitioner is correct that case law is clear that “a petitioner who is mentally
incompetent is denied an opportunity to raise a claim in a meaningful manner unless the
statute of limitations is tolled during the period of mental incompetence.” Seals, 23 S.W.3d
at 27. The standard of mental incompetence was addressed by the Tennessee Supreme Court
in State v. Nix. The court held that “due process requires tolling of the post-conviction
statute of limitations only if a petitioner shows that he is unable either to manage his personal
affairs or to understand his legal rights and liabilities.” State v. Nix, 40 S.W.3d 459, 463
(Tenn. 2001). The petitioner must make a prima facie showing of mental illness, which
requires that the petitioner state in the petition specific factual allegations regarding his or
her inability to manage personal affairs or understand legal rights or liabilities. Id. at 464.
The petitioner may satisfy this requirement by attaching affidavits, depositions, reports, or
other credible evidence of his or her mental condition to the petition. Id. It is not necessary
that the petitioner use materials from mental health professionals, but, instead, the petitioner
may call upon anyone with knowledge of his or her mental condition such as family members
or prison officials. Id. “Unsupported, conclusory, or general allegations of mental illness
will not be sufficient to require tolling and avoid summary dismissal . . . .” Id. (citing Van
Tran v. State, 6 S.W.3d 257, 268 (Tenn. 1999)). “Even if a petitioner satisfies the prima
facie showing at the hearing, the petitioner bears the burden of proving by clear and
convincing evidence that the statute of limitations should be tolled for incompetence, and that
as a result of the tolling, the petition is timely.” Id. If this burden is not satisfied, the petition
should be dismissed as time-barred. Id. at 465.

      In very detailed findings of fact, the post-conviction court made the following
statements:

              Petitioner first argues that the language in the letter counsel sent
       notifying him of the motion to withdraw was too complex for him to
       comprehend and that counsel did not include any information regarding a
       timeline for filing a post-conviction petition. However, the Court of Criminal
       Appeals apparently found that counsel had complied with all of the
       requirements regarding withdrawal of counsel on appointed cases under Rule
       14. As a result, counsel was granted permission to be relieved in the matter by
       the appellate courts on September 13, 2002.

               ....

               The wording of the letter sent by counsel [to the petitioner] clearly
       states “After a review of the opinion of the Court of Criminal Appeals and the
       brief filed with the Court, I have decided I WILL NOT file an application for
       permission to appeal with the Tennessee Supreme Court on your behalf.” The

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previous IQ testing and mental evaluations performed on the Petitioner place
his full scale IQ somewhere between 88-95, which is in the average-to-low-
average range. Given the past IQ testing and psychological evaluations of the
Petitioner, the Court does not believe that the language in the letter was too
complex for a person of this range of mental ability to comprehend.

       ....

        The petitioner contends that he was and is mentally incompetent as the
result of a combination of several factors and thus, he asserts, he was denied
a reasonable opportunity to present a claim in a meaningful time and manner.
. . . Such factors he alleges include suffering of severe depression, drug abuse
and a history of the need for special education services. He also alleges mental
incompetence based on a childhood marked by physical abuse and neglect, as
well as a brain injury suffered in a car accident at [thirteen] months of age.

        At the due process hearing, the Petitioner submitted affidavits of friends
and family members and called upon several witnesses to testify as to his
mental state. Two of the Petitioner’s friends he met in prison testified to the
effect that the Petitioner seemed very depressed and that he was drinking and
abusing drugs quite heavily while incarcerated. They also stated that he did
not seem to comprehend legal concepts and that he had difficulty with reading
comprehension in general.

        “[M]ental illness is not the equivalent of mental incompetence.” . . .
Mood disorders, depression, schizophrenia, alcoholism and drug abuse do not
necessarily show that a person is unable to manage his personal affairs or
understand his legal rights and abilities. . . . Furthermore, as a natural human
response to being sentenced to lengthy terms of imprisonment, it seems as
though severe depression would be extremely common in defendants in such
situations.

        Petitioner’s mother and sister also testified on his behalf at the due
process hearing in this matter. Jennifer Sizemore, Petitioner’s sister, made
statements supporting the contention that he required assistance with
homework during his younger years and that he had a rough childhood as they
grew up in foster homes. Nancy Hall, Petitioner’s mother, testified to a brain
injury he suffered when he was ejected from a vehicle in an accident when he
was [thirteen] months old. She claims that Petitioner suffered brain damage
as a result.

                                       -8-
              Although evidence tends to prove that the Petitioner has a history of
       behavioral and emotional problems, it does not appear as though he is, or ever
       has been, incompetent. Granted, reports show that his IQ is somewhere in the
       lower average category, but his mental intelligence is well above the level of
       mental retardation. Psychological and mental evaluations were conducted
       during the legal proceedings in this case, however, the results thereof did not
       warrant the granting of any relief in the prosecution of the charges.

              Based on the foregoing analysis, the Court is of the opinion that the
       Petitioner has failed to show that he was incapable of either managing his
       personal affairs or understand[ing] his legal rights and capabilities during the
       period within which a petition for post-conviction relief could be filed.
       Therefore, it appears as though due process does not require that the untimely
       filed Petition for Post-Conviction Relief be considered.

        Initially, we make note that it is undisputed that the petition for post-conviction relief
filed in this case was untimely. The petitioner’s only contention is that the statute of
limitations should have been tolled because he was mentally incompetent during the period.
However, after a review of the record, we are unable to conclude that the evidence
preponderates against the post-conviction court’s findings.

       In his brief, the petitioner summarizes his argument as follows:

       [T]he record demonstrates that the [petitioner], as an infant, showed signs of
       being organically and developmentally impaired. The record further
       demonstrates that severe brain trauma, brought on by a car accident as a
       thirteen month old infant, likely compounded that condition, the confluence of
       which brought about a lifetime of stunted intellectual and psychological
       development in the [petitioner]. While his serious mental and psychological
       conditions were not helped by his own drug abuse and self medication, the fact
       remains that the [petitioner] suffered from an inability to comprehend even the
       most basic concepts. The record shows that the [petitioner] could not hold a
       job in prison during the time period in question, and shows furthermore that
       without the dubious assistance of ‘jailhouse lawyers,’ the [petitioner] would
       never have even had the ability to file the flawed documents that he put before
       the [post-conviction] court. . . .

       We do not dispute that the record does establish that the petitioner had a history of
depression, mental disorders, and traumatic events in his life. Moreover, it is also quite clear
that the petitioner has a history of drug abuse and a need for special education services.

                                               -9-
However, mental illness is not the equivalent of mental incompetence. Nix, 40 S.W.3d at
463. Mood disorders, depression, schizophrenia, alcoholism, and drug abuse do not
necessarily show that a person is unable to manage his personal affairs or understand his
legal rights and abilities. Id. at 459.

        While the record does show that the petitioner has difficulty with comprehension, it
does not show that he is unable to function. Testimony was given that the petitioner was able
to function in the prison system. Moreover, contrary to the petitioner’s argument, the record
does not indicate he was unable to keep a job in prison because of his mental issues. He was
fired from the kitchen from smoking marijuana. Mr. Reisner testified that the petitioner
understood “common sense things” easily and was able to learn some of the more complex
things with help. This, in our opinion, is not an “inability to comprehend even the most basic
concepts.”

        As pointed out by the post-conviction court, psychological and mental evaluations
were conducted earlier in the legal proceedings in the case. The fact that the results did not
warrant any type of relief strongly suggests that the petitioner is still unable to establish an
entitlement to relief, as the only new information which might be relevant is his drug usage
in prison and his depression because of his incarceration. The post-conviction court heard
the testimony and reviewed the reports submitted by the petitioner and reached the
conclusion that the petitioner was not legally mentally incompetent. We conclude nothing
in this record preponderates against the finding that due process does not require tolling the
statute of limitations.

                                       CONCLUSION

      Based upon the foregoing, the dismissal of the petition for post-conviction relief is
affirmed.




                                                     _________________________________

                                                     JOHN EVERETT WILLIAMS, JUDGE




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