        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs July 10, 2012

             LAQUENTON MONGER v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                  No. 98-01601-02    Carolyn Wade Blackett, Judge


               No. W2011-00466-CCA-R3-PC - Filed November 2, 2012


The petitioner, LaQuenton Monger, appeals the summary dismissal of his petition for post-
conviction relief. The petitioner was convicted by a jury of first degree felony murder in the
perpetration of aggravated child abuse and of aggravated child abuse. On direct appeal, the
conviction for first degree murder was ultimately reversed and remanded for a new trial
because the trial court failed to charge lesser included offenses. The petitioner pled guilty
to second degree murder. The petitioner brought a pro se post-conviction petition asserting
various errors, and the post-conviction court dismissed the petition based on the statute of
limitations. After a thorough review of the record, we affirm the judgment of the post-
conviction court.

 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 A LAN E. G LENN
and C AMILLE R. M CM ULLEN, J.J., joined.

James Arnold, Germantown, Tennessee, for the appellant, LaQuenton Monger.

Robert E. Cooper, Jr., Attorney General and Reporter; Jeffrey D. Zentner, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Gregory Gilbert, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

                             Factual and Procedural History

      The petitioner was convicted for the 1997 abuse and murder of his seven-month-old
daughter, who died as the result of being squeezed so hard that her liver ruptured, a hole was
broken through her heart, and old fractures on her ribs were re-broken. State v. Monger, No.
W2000-00489-CCA-R3-CD, 2001 WL 1011763, at *1-7 (Tenn. Crim. App. Aug. 27, 2001).
The trial court imposed a life sentence for the felony murder conviction and a concurrent
sentence of twenty years for the aggravated child abuse. On direct appeal, this court initially
concluded that the conviction for aggravated child abuse violated the prohibition against
double jeopardy and that the petitioner was entitled to a new trial on the felony murder
conviction due to the trial court’s failure to charge lesser included offenses. However, the
Tennessee Supreme Court remanded for reconsideration in light of its opinion in State v.
Godsey, 60 S.W.3d 759 (Tenn. 2001), and this court reinstated the conviction for aggravated
child abuse on June 20, 2002 and remanded for a new trial on the murder charge. State v.
Monger, No. W2002-00321-CCA-RM-CD, 2002 WL 1349528, at *1 (Tenn. Crim. App. June
20, 2002), perm. app. denied (Tenn. Dec. 9, 2002). The petitioner then pled guilty to second
degree murder, and on February 10, 2004, he was sentenced to serve twenty years in prison.1
No appeal was taken from the guilty plea.

        On October 11, 2005, the petitioner filed a “petition to correct illegal sentence,” which
was treated as a petition for the writ of habeas corpus and denied based on the petitioner’s
failure to attach the appropriate judgments of conviction. This court affirmed the dismissal,
concluding that the failure to attach the judgment sheets was sufficient cause to deny the
petition, but also concluding that the petitioner was properly ordered to serve 100 percent of
his sentences under Tennessee Code Annotate section 40-35-501(i). Monger v. Mills, No.
W2005-02516-CCA-R3-HC, 2006 WL 1063613, at *2 (Tenn. Crim. App. Apr. 21, 2006)
perm. app. denied (Tenn. Aug. 28, 2006). The petitioner filed a subsequent habeas corpus
petition, asserting that his convictions were void because a new rule of constitutional law
requiring retroactive application barred his sentence from being enhanced by judicially
determined facts. This court found that the cases cited did not require retroactive application
and at most rendered petitioner’s sentences voidable.                  Monger v. State, No.
M2008-01203-CCA-R3-CO, 2009 WL 111651, at *1 (Tenn. Crim. App. Jan. 13, 2009).

        On December 15, 2010, the petitioner filed the instant petition, entitled “Motion to
Reopen Post-Conviction Relief Under Tennessee Supreme Court Rule 28, Sec. 9(B), T.C.A.
§ 40-30-117(a)(4) and New Found Evidence Under T.C.A. § 40-30-103.” The petitioner
asserts that his Sixth and Fourteenth Amendment rights were violated because his sentence
was enhanced by judicially found facts; that he is entitled to relief because it was error to
enhance his sentences beyond the minimum in his range or to order them served at 100
percent; that his plea was not knowing and voluntary because he was unaware that he was


        1
         Although the amended judgment sheet attached to the petition fails to indicate that the petitioner
was found guilty, whether such a finding was the result of a guilty plea, and whether his sentence would be
concurrent to the sentence for aggravated child abuse, the parties agree that he pled guilty and the appellate
opinion in his second habeas corpus petition notes that the sentences are concurrent.

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not sentenced to the minimum in his range and unaware that he would have to serve 100
percent of the sentence and because of a clerical error on the judgment form; and that he was
entitled to be sentenced under the 2005 amendment to Tennessee Code Annotated section
40-35-210(c) (2005). The trial court dismissed the petition based on failure to file within the
limitations period.

                                           Analysis

        Tennessee Code Annotated section 40-30-117 (2010) permits “the first post-
conviction petition” to be reopened under certain circumstances. T.C.A. § 40-30-117(a).
Appeal from denial of a motion to reopen is permissive, and the decision is reviewed for
abuse of discretion. T.C.A. § 40-30-117(c). However, the petitioner in this case never filed
an original post-conviction petition. The action he filed on October 11, 2005, entitled
“petition to correct illegal sentence,” was commenced over a year after his conviction for
second degree murder became final, and it was treated as a petition for habeas corpus by the
court. His subsequent challenge was also an action for habeas corpus relief. The petitioner’s
brief refers to his own motion as a petition for post-conviction relief. Accordingly, we treat
this petition as his first petition for post-conviction relief. On appeal, the findings of fact
made by a post-conviction court are conclusive unless the evidence preponderates otherwise.
Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006). A post-conviction court’s application
of the law to the facts is de novo, and the post-conviction court’s conclusions of law are not
afforded any presumption of correctness. Grindstaff v. State, 297 S.W.3d 208, 216 (Tenn.
2009).

        Under Tennessee Code Annotated section 40-30-102(a), a post-conviction petition
must be filed “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 the petition shall be barred.” The
statute provides that the limitations period “shall not be tolled for any reason, including any
tolling or saving provision otherwise available at law or equity.” Id. Failure to file within
the limitations period removes the case from the court’s jurisdiction. The limitations period
has three statutory exceptions for certain claims involving new constitutional rights, certain
claims involving new scientific evidence, and for sentences enhanced by subsequently
overturned convictions. T.C.A. § 40-30-102(b) (formerly T.C.A. § 40-30-202(b) (1997);
this provision located at section -202 in 2002, when the petitioner’s conviction for aggravated
child abuse became final). On appeal, the petitioner acknowledges that none of the statutory
exceptions to the limitations period apply to his petition. He nevertheless asserts that due
process requires the limitations period to be tolled.

       In addition to the statutory exception, our courts have recognized that on occasion, due

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process requires that the statute of limitations be tolled. Williams v. State, 44 S.W.3d 464,
468 (Tenn. 2001). Inherent in due process is “‘a reasonable opportunity to have the claimed
issue heard and determined.’” Sands v. State, 903 S.W.2d 297, 300 (Tenn. 1995) (quoting
Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992)). Accordingly, despite statutory
language that “the statute of limitations shall not be tolled for any reason, including any
tolling or saving provision otherwise available at law or equity,” T.C.A. § 40-30-102(a), due
process may require tolling when circumstances beyond the petitioner’s control preclude
raising the post-conviction claims. Williams, 44 S.W.3d at 469. Due process may toll the
statute of limitations when the petitioner is caught in a procedural trap, Burford, 845 S.W.2d
at 208 (concluding due process tolled the limitations period when petitioner’s sentence was
enhanced by prior conviction which had been overturned); when the petitioner is the victim
of his counsel’s misrepresentation, Williams, 44 S.W.3d at 471 (remanding for a
determination of misconduct); and when mental incompetence prevents timely filing, Seals
v. State, 23 S.W.3d 272, 279 (Tenn. 2000). In Williams, the Tennessee Supreme Court
specifically asserted that it was “not holding that a petitioner may be excused from filing an
untimely post-conviction petition as a result of counsel’s negligence.” Williams, 44 S.W.3d
at 468 n.7. The petitioner urges a rule which would toll the statute based on a petitioner’s
lack of legal training and the absence of assistance by counsel, and the petitioner asserts that
he believed his October 11, 2005 action tolled the limitations period.2 However, we find
“[t]he petitioner’s argument that this Court should create an exception to the well established
rule simply because he is not a lawyer . . . unconvincing.” Harden v. State, 873 S.W.2d 2,
4 (Tenn. Crim. App. 1993).

      In evaluating whether due process should toll the statute of limitations on a post-
conviction action,

                  courts should utilize a three-step process: (1) determine when
                  the limitations period would normally have begun to run; (2)
                  determine whether the 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.

Sands, 903 S.W.2d at 301. Determining whether due process requires an opportunity to
present a claim involves considering “(1) the private interest at stake; (2) the risk of
erroneous deprivation of the interest through the procedures used and the probable value, if

       2
           We note that this filing likewise falls outside the statutory limitations period.

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any, of additional or substitute safeguards; and finally, (3) the government’s interest,
including the function involved and the fiscal and administrative burdens that the additional
or substitute procedural requirement would entail.” Seals, 23 S.W.3d at 277.

        The statute of limitations on the petitioner’s conviction for aggravated child abuse
began to run on December 9, 2002, when his appeal to the Tennessee Supreme Court was
denied. His guilty plea to second degree murder became final thirty days after it was entered
on February 10, 2004, and the limitations period began to run on that date. See State v.
Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996). The instant petition was filed on
December 15, 2010. The petitioner alleges no later-arising grounds for relief, and we note
that some of the petitioner’s claims have previously been addressed in his prior habeas corpus
petitions. Because the petitioner has alleged no grounds which could be deemed to be later-
arising, we do not proceed to step three of the Sands analysis but conclude that due process
does not require the statute of limitations to be tolled.

                                      CONCLUSION

        Because the petition was filed outside the statutory limitations period and because
there is no reason to toll the statute of limitations, we affirm the post-conviction court’s
dismissal of the petition for post-conviction relief.




                                                   _________________________________
                                                   JOHN EVERETT WILLIAMS, JUDGE




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