        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                        Assigned on Briefs November 17, 2015


                  ROGER JOSEPH v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Bradley County
                      No. 15CR227     Sandra Donaghy, Judge




               No. E2015-01324-CCA-R3-PC – Filed February 12, 2016
                        _____________________________

The petitioner, Roger Joseph, appeals the summary dismissal of his petition for post-
conviction relief. The petitioner pled guilty to premeditated first degree murder and was
sentenced to life imprisonment. In his instant petition, he contends that his guilty plea
was not entered knowingly and voluntarily based upon the ineffective assistance of
counsel. While acknowledging that the petition was filed well outside the statute of
limitations, he claims that he has shown that due process requires the tolling of the statute
based upon his mental condition. Based upon that assertion, he contends that the
summary dismissal of the petition was erroneous. Following review of the record, we
conclude that the law of the case doctrine prohibits our review of that issue and affirm the
dismissal of the petition.

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

JOHN EVERETT WILLIAMS, J., delivered the opinion of the Court, in which ROGER A.
PAGE and ROBERT H. MONTGOMERY, JR., JJ., joined.

Roger Joseph, Mountain City, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel; and
Stephen Crump, District Attorney General, for the Appellee, State of Tennessee.


                                        OPINION
                     Factual Background and Procedural History


       The facts underlying the petitioner‟s conviction, as recited at the guilty plea
hearing, are as follows:

               If I was to call witnesses in this particular case there would be
       witnesses that would indicate that the [petitioner] had in the past called [the
       victim], that he had actually threatened her on the phone, that he was upset
       about her interference with his relationship with Jennifer Rahamut. There
       would also be evidence that on the night of the murder there was an eight
       minute phone call from his motel room to her residence, there would be
       evidence that when he went to the residence he carried a newspaper. There
       would be evidence that he regularly did not read a newspaper because he
       didn‟t read very well. There would be evidence that the murder weapon
       was 14 inches long, it was a huge knife, your Honor. And there would be
       evidence that it appeared that he concealed that knife in the newspaper
       when he traveled. There would also be evidence that [the victim] made
       some phone calls between the time that the phone call came from the hotel
       and called some people that she had called in the past and asked them to
       come over to the house as she had done in the past. Your Honor, when I
       spoke to the experts from Middle Tennessee they essentially told me that as
       they examined him over the period that they examined him that there
       w[ere] never any delusion about why this murder took place when they
       discussed it with him. He never had any delusional reasons, and also he
       denied initially that he did it, and those were the reasons that they would
       testify and their expert opinion would have been that he was not insane at
       the time of the act . . . .


       The petitioner was indicted for first degree premeditated murder and aggravated
assault. The petitioner subsequently accepted a guilty plea to the murder charge on April
25, 2001, and he was sentenced to a term of life imprisonment. The aggravated assault
charge was dismissed. No direct appeal was taken.


       In February of 2002, the petitioner filed a timely petition for post-conviction relief
asserting ineffective assistance of counsel and an involuntary plea. The record indicates
that various mental health facilities were ordered to produce records in the case. While a
hearing began, no ruling was ever made on the merits of the petition, as the petitioner
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chose to voluntarily withdraw the petition. Apparently, only an oral ruling from the
bench was issued by the court dismissing the petition without prejudice. No written order
was entered.
       The next petition for relief was filed by the petitioner on February 17, 2010. The
petition again raised the grounds of mental incompetence, ineffective assistance of
counsel, and an involuntary plea. Specifically, he argued that because “he [was] heavily
medicated due to his mental situation, . . . his plea was entered involuntarily and trial
counsel was ineffective because he knew Petitioner was taking the medication at the
time.” Roger Joseph v. State, No. E2010-01891-CCA-R3-PC, 2012 WL 187040, at *2
(Tenn. Crim. App. Jan. 23, 2012). The petitioner acknowledged that his petition was
filed outside the one-year statute of limitations period, but he contended that it should be
tolled. Id. at *1. The post-conviction court disagreed and summarily dismissed the
petition on February 28, 2010. In denying the motion, the post-conviction court stated as
follows:


              A review of the petition shows the petition is not completely filled in
       as to date of conviction, time of conviction, et cetera, and further that the
       petition indicates no prior post-conviction relief petitions have been filed.


              A search of the court records pertaining to petitioner will reveal prior
       petitions for post-conviction relief which have been resolved on the merits
       by a court of competent jurisdiction, and further that this petition is filed
       well outside the time frame for post-conviction relief.


Id. The petitioner filed notice of appeal to this court.


       On appeal, the petitioner argued that it was error to summarily dismiss the
petition. Id. The State countered that the dismissal was appropriate because the petition
was not timely filed and because the claims raised in the petition had been addressed in
previous proceedings. Id.


       This court concluded that the situation alleged by the petitioner did not fall within
one of the enumerated exceptions to the statute of limitations, nor did due process require

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that the statute be tolled. Id. at *4. With regard to due process tolling in terms of a
person being unable to manage their personal affairs or understand their legal rights, this
court concluded that the petitioner “made no specific factual allegations that following
his conviction in 2001, he was unable to manage his personal affairs until 2010.” Id.
Because the petitioner failed to comply with the requirements of State v. Nix, 40 S.W.3d
463 (Tenn. 2001), this court determined that the post-conviction court correctly dismissed
the petition as untimely. Roger Joseph, 2012 WL 187040, at *4. Additionally, this court
concluded that the petition was properly dismissed because a prior petition for relief had
been filed in the case, and the Post-Conviction Act contemplates the filing of only one
petition for relief. Id. No appeal was taken from the decision.


      On March 12, 2013, the petitioner filed a petition for a writ of habeas corpus,
which was dismissed on August 19, 2013. This court affirmed that dismissal. Roger
Joseph v. David Sexton, Warden, No. E2013-02091-CCA-R3-HC, 2014 WL 576405, at
*1 (Tenn. Crim. App. Feb. 12, 2014), perm. app. denied (Tenn. June 24, 2014).


       Next, on May 29, 2015, the petitioner filed the instant pro se petition for post-
conviction relief. He again raised the same issues as in his prior petition. However, he
specifically asserted in this petition that the statute of limitations should be tolled because
of mental incompetency. Attached to the petition were multiple mental health records.


       After reviewing the petition, the post-conviction court summarily dismissed the
petition on June 17, 2015. In its written order dismissing the petition, the post-conviction
court made the following findings of fact:


              After examining [the petitioner‟s] petition for post-conviction relief
       filed with this court, as well as the files and correspondence relating to the
       judgment under attack, this court dismisses the claim in light of Joseph v.
       State, 2012 Tenn. Crim. App. LEXIS 43 (Tenn. Crim. App. Jan. 23, 2012),
       as well as Tenn. Code Ann. § 40-30-102(c) . . . .


              ....



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             The petition at hand was filed on May 29, 2015, and again alleges
      that the guilty plea was involuntarily entered without understanding the
      nature of the consequences of the plea, that he was denied effective
      assistance of counsel, and “other grounds.” [The petitioner] does not
      expressly state what his other grounds are; however, in reviewing the
      attached documentation, this court believes his “other grounds” to be his
      mental incompetence. The same mental health treatment records that were
      attached to his previous filings were attached as exhibits to the petition
      under review. These documents relate to the previously filed actions and
      were known to the litigants. The totality of this documentation was
      previously considered by the trial court, the post-conviction relief court, the
      habeas court, and the Court of Criminal Appeals.


             The court finds that:


      (1) [The petitioner] pled on April 25, 2001.
      (2) He did not appeal the conviction.
      (3) Neither heavy medication due to a mental situation nor ineffective
          assistance of counsel related to knowledge of medication are exceptions
          to the rule requiring post-conviction relief petitions to be filed within
          one (1) year.
      (4) [The petitioner] has filed two post-conviction petitions and one habeas
          corpus petition prior to the instant petition for post-conviction relief.
      (5) The filings of [the petitioner] have been reviewed at the trial court level
          and at the appellate level. No relief has been granted from the
          judgment.
      (6) The instant petition was filed on May 29, 2015, well outside the one-
          year statute of limitations. . .

The petitioner filed a timely notice of appeal challenging the summary dismissal.


                                        Analysis


       Under the Post-Conviction Procedure Act, relief is available when a conviction “is
void or voidable because of the abridgement of any right guaranteed by the Constitution

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of Tennessee or the Constitution of the United States.” T.C.A. § 40-30-103 (2010).
However, a petition for relief must normally be filed within one year of the date on which
the judgment became final if no direct appeal was taken. T.C.A. § 40-30-102(a). Our
legislature has emphasized that “[t]ime is of the essence of the right to file a petition for
post-conviction relief,” id., and provided only three narrow exceptions to the statute of
limitations: (1) a final ruling by an appellate court announcing a new constitutional rule
with retroactive application; (2) new scientific evidence establishing actual innocence; or
(3) the invalidation of convictions underlying an enhanced sentence. T.C.A. § 40-30-
102(b).


       Again, in the case before us, it is not disputed that the petition for relief was filed
well outside the applicable statute of limitations. Nor does the petitioner contend that any
of the enumerated statutory exceptions apply, and we agree that they do not. However,
the petitioner does contend that due process requires tolling the statute of limitations in
his case.


        Our supreme court has held that the right to due process may necessitate tolling
the statute of limitations in certain circumstances outside of the enumerated statutory
exceptions. Burford v. State, 845 S.W.2d 204 (Tenn. 1992); Seals v. State, 23 S.W.3d
272 (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 „presentation of claims at a meaningful
time and in a meaningful manner.‟” Seals, 23 S.W.3d at 277-78 (quoting Burford, 845
S.W.2d at 207). “Whether due process considerations require tolling of a statute of
limitations is a mixed question of law and fact, which we review de novo with no
presumption of correctness.” Smith v. State, 357 S.W.3d 322, 355 (Tenn. 2011) (quoting
Harris v. State, 301 S.W.3d 141, 145 (Tenn. 2010)).


        As this court has previously explained, “due process serves to toll the post-
conviction statute of limitations for petitioners who face circumstances beyond their
control . . . which preclude them from actively raising their post-conviction claims.”
Crystle D. Rutherford v. State, No. M2013-01575-CCA-R3-PC, 2014 WL 1669960, at *2
(Tenn. Crim. App. Apr. 25, 2014) (citing Williams v. State, 44 S.W.3d 464, 469 (Tenn.
2001)). Our supreme court has identified three circumstances in which due process
requires tolling the post-conviction statute of limitations: (1) when claims for relief arise
after the expirations of the statute of limitations, see Sands v. State, 903 S.W.2d 297, 301
(Tenn. 1995); (2) when a petitioner‟s mental incompetence prevents him from complying
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with the statute‟s deadline, see Seals, 23 S.W.3d at 279; and (3) when attorney
misconduct or abandonment prevented the petitioner from filing a post-conviction
petition within the statute of limitations, see Whitehead v. State, 402 S.W.3d 615, 621
(Tenn. 2013). Again, in the instant petition, the petitioner relies only upon the second
circumstance, claiming that his mental issues precluded his complying with the
applicable statute of limitations.


        The post-conviction court dismissed the petition in this case because it had
previously been ruled upon by another court. Among others, the post-conviction court
relied upon this court‟s holding in Roger Joseph, 2012 WL 187040. In the opinion, this
court specifically recognized that our supreme court has stated that due process
consideration may require tolling of the statute of limitations if the petitioner
demonstrates “that he is unable either to manage his personal affairs or to understand his
legal rights and liabilities.” Id at * 4. This court also noted that to make a prima facie
showing to toll the statute of limitations, a “petitioner must include specific factual
allegations that demonstrate the petitioner‟s inability to manage his personal affairs or
understand his legal liabilities.1 Unsupported conclusions or general allegations of
mental illness will not be sufficient to require tolling and prevent summary dismissal . . .
.” Id. (footnote added). This court concluded that the petitioner had failed to meet the
requirements in order to toll the statute of limitations. Id. This court specifically stated
that “[b]ecause Petitioner has shown no due process violation or other reason for tolling
the statute of limitations, we conclude that the post-conviction court properly dismissed
the petition.” Id. at *1.

       The petitioner has again raised the same issue in the instant petition, i.e., that due
process requires tolling because of his mental conditions. However, as just noted, that
decision has previously been ruled upon by this court.

        Pursuant to the “law of the case” doctrine, “an appellate court is generally without
authority to reconsider issues that have been decided in a prior appeal; „issues previously
litigated and decided by a court of competent jurisdiction ordinarily need not be
revisited.‟” Anthony L. Washington v. Dwight Barbee, Warden, No. W2012-01888-CCA-
R3-HC, 2013 WL 2150675, at *1 (Tenn. Crim. App. May 16, 2013) (quoting State v.
Jefferson, 31 S.W.3d 558, 561 (Tenn. 2000)). The law of the case doctrine generally

        1
           We recognize that the standard set forth in Nix is no longer the requisite standard for such
determinations. Our supreme court decided that, “[i]n the interest of uniformity and simplicity, . . . the
standards and procedures in [Tennessee Supreme Court Rule] 28, § 11 should henceforth be used in all
post-conviction proceedings . . . in which the issue of the petitioner‟s competency is properly raised,”
including “when a petitioner seeks to toll the statute of limitations in [Tennessee Code Annotated section]
40-30-102(a) due to incompetency.” Reid ex rel. Martiniano v. State, 396 S.W.3d 478, 512 (Tenn. 2013).
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serves to “promote[ ] the finality and efficiency of the judicial process, avoid [ ]
indefinite relitigation of the same issue, foster[ ] consistent results in the same litigation,
and assure [ ] the obedience of lower courts to the decisions of appellate courts.”
Jefferson, 31 S.W.3d at 561.

        Thus, pursuant to this doctrine, this court is precluded from addressing the issue
raised by the petitioner, as it has already been determined. As such, we cannot conclude
that the petitioner is entitled to relief.

                                          CONCLUSION

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


                                                   _________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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