        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs June 19, 2012

           ANTWAIN TAPAIGE SALES v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Bedford County
                       No. 16158    Franklin L. Russell, Judge


              No. M2011-02001-CCA-R3-PC - Filed September 27, 2012


The Petitioner, Antwain Tapaige Sales, appeals the Bedford County Circuit Court’s summary
dismissal of his petition for post-conviction relief from his conviction for second degree
murder and resulting forty-year sentence. On appeal, he contends that the trial court erred
in determining that he failed to satisfy the threshold burden to warrant an additional hearing
regarding whether the statute of limitations should have been tolled due to his mental
incompetence. We affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and J OHN E VERETT W ILLIAMS, JJ., joined.

Antwain Tapaige Sales, Pikeville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; and Robert Carter, District Attorney General; and Michael D. Randles, Assistant
District Attorney General for the appellee, State of Tennessee.


                                         OPINION

        The Petitioner pleaded guilty to second degree murder on April 23, 2007. He filed a
petition for post-conviction relief on May 23, 2011, more than three years after the deadline
for filing the petition. He argued that he was unable to file a petition asserting his post-
conviction claims because he was mentally incompetent and under the effect of psychotropic
drugs. To establish that his mental incompetence warranted a tolling of the time within
which to file his petition for post-conviction relief, the Petitioner attached two “affidavits”
to his petition. The purported “affidavits” do not reflect that they were made under oath. In
the first, Carlene Sales, the Petitioner’s mother, stated that “as [an] adult my son had a[n]
inability to take care of himself or manage his personal affairs [due] to his mental condition.”
In the second, Teresa Starnes, the Petitioner’s former girlfriend, stated, “[During] the course
of our relation, Antwain Sales had inability to manage his personal affairs or take care of
himself because of his mental state.” No additional statements appeared in either affidavit.
Also attached to the petition was a statement written by the Petitioner to his attorney saying
that on October 17, 2005, he was diagnosed with a mental illness, that his medication was
changed to anti-psychotic medication on November 10, 2005, and that he suffers from
“Schitzoaffective Bipolar/Schitzofrantic Paranoia.”

         The trial court summarily dismissed the petition after finding that the Petitioner failed
to file the petition within the one-year statute of limitations and that the Petitioner failed to
establish grounds mandating a tolling of the statute of limitations. The court found that the
Petitioner made only conclusory and general allegations of mental illness in his petition and
the attachments thereto and that the Petitioner failed to allege sufficient facts that would
warrant a conclusion that he was mentally incompetent during the limitations period. This
appeal followed.

        The burden in a post-conviction proceeding is on the Petitioner to prove his
allegations of fact by clear and convincing evidence. T.C.A. § 40-30-110(f) (2006);
Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009). On appeal, we are bound by the trial
court’s findings of fact unless we conclude that the evidence in the record preponderates
against those findings. Fields v. State, 40 S.W.3d 450, 456-57 (Tenn. 2001). The
Post-Conviction Procedure Act allows for the filing of only one petition attacking a single
judgment, which must be filed within one year of the final action by the highest state
appellate court to which an appeal was made or, if no appeal is taken, within one year of the
trial court’s judgment becoming final. T.C.A. § 40-30-102(a), (c) (2006). Principles of due
process may allow tolling of the statute of limitations in limited circumstances. See Burford
v. State, 845 S.W.2d 204, 208 (Tenn. 1992) (“[D]ue process requires that potential litigants
be provided an opportunity for the presentation of claims at a meaningful time and in a
meaningful manner.”). “[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 v. State, 23 S.W.3d 272, 279 (Tenn. 2000).

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




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               [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. 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. Unless this burden is satisfied, the petition
               should be dismissed as time-barred.

State v. Nix, 40 S.W.3d 459, 464-65 (Tenn. 2001) (citations omitted).

         In his petition, the Petitioner failed to set forth any specific factual allegations that
demonstrated an inability to manage his personal affairs or understand his legal rights and
liabilities for such time that would allow for the filing of a post-conviction petition. The
record supports the trial court’s finding that the Petitioner made only conclusory and general
allegations of mental illness in his petition and its attachments. The Petitioner’s unsupported
and conclusory allegations were not sufficient to require tolling and to prevent a summary
dismissal of his petition.

       The Petitioner has vigorously sought to supplement both the trial and appellate
records with medical records, asserting that they support his claim. However, his attempts
have been after the trial court’s decision was rendered and the appeal started. His untimely
attempts are unavailing. The Petitioner is not entitled to relief.



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        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.



                                           _________________________________
                                           JOSEPH M. TIPTON, PRESIDING JUDGE




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