        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                         Assigned on Briefs September 7, 2016

               KENNETH SHERRON v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Madison County
                    No. C-15-347       Roy B. Morgan, Jr., Judge
                      ___________________________________

               No. W2016-00515-CCA-R3-PC - Filed October 6, 2016
                     ___________________________________


The Petitioner, Kenneth Sherron, pleaded guilty to facilitation of kidnapping. Thereafter,
the Petitioner filed an untimely petition for post-conviction relief, and the post-conviction
court summarily dismissed the petition as time-barred. The Petitioner appeals, asserting
that the post-conviction court erred when it summarily dismissed the petition. After
review, we affirm the post-conviction court’s judgment.

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which NORMA MCGEE
OGLE and D. KELLY THOMAS, JR., JJ., joined.

Joseph T. Howell, Jackson, Tennessee, for the appellant, Kenneth Sherron.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Assistant Attorney
General; Jerry Woodall, District Attorney General; and Al Earls, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION
                                      I. Background

       On September 27, 2012, the Petitioner entered a best interest plea to facilitation of
kidnapping and received a sentence of five years. On December 14, 2015, the Petitioner,
pro se, filed a petition seeking post-conviction relief. The Petitioner claimed that his plea
was unknowing and involuntary. Appointed counsel filed an amendment to the original
petition on December 30, 2015, asserting that trial counsel had been ineffective and that
the Petitioner’s guilty plea was unknowing and involuntary. In response, the State filed a
motion requesting to dismiss the petition as time-barred.
       On March 10, 2016, the post-conviction court filed an order dismissing the
petition with the following findings:

       The [P]etition[er] entered guilty pleas on September 27, 2012 with no
       appeal being taken and the present petition was not filed until December
       14th, 2015. The issues raised by the [P]etitioner are not later arising as the
       petition clearly states that he advised his trial attorney of the matters but
       then pled guilty on the date the matter was set for trial. There is nothing in
       the petition that gives any justification for not raising the matters at a timely
       manner either pretrial or at the guilty plea hearing even though they were
       known to the [P]etitioner prior to the plea date. Line 11 of the petition
       clearly states that the [P]etitioner should offer some reason as to why the
       petition is not time barred if filed beyond the one year date. This line is left
       blank. At the hearing on the petition the [P]etitioner offered no evidence as
       to justify any tolling of the statute of limitations and none of the reasons for
       tolling the statute are applicable in this matter.

It is from this judgment that the Petitioner appeals.

                                         II. Analysis

        On appeal, the Petitioner asserts that he is entitled to equitable tolling of the post-
conviction statute of limitations because his attorney failed to notify him of post-
conviction procedures. The State responds that the Petitioner has failed to show that he is
entitled to due process tolling of the statute of limitations. We agree with the State.

        A person in custody under a sentence of a court of this state must petition for post-
conviction relief 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 becomes final. T.C.A. § 40-30-102(a) (2014). 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 post-conviction court is required to summarily dismiss the
petition. T.C.A. § 40-30-106(b) (2012).

        Tennessee Code Annotated section 40-30-102(b) sets out three exceptions to the
statute of limitations for petitions for post-conviction relief:
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       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.

Additionally, due process concerns may toll the statute of limitations for post-conviction
relief. The Tennessee Supreme Court has stated:

             [B]efore a state may terminate a claim for failure to comply with
      procedural requirements such as statutes of limitations, due process requires
      that potential litigants be provided an opportunity for the presentation of
      claims at a meaningful time and in a meaningful manner.

Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992) (citing Logan v. Zimmerman Brush
Co., 455 U.S. 422, 437 (1982)).

       In the case under submission, the Petitioner was required to file his petition for
post-conviction relief within one year of the date on which the judgment became final.
See T.C.A. § 40-30-102(a) (2012). The Petitioner filed his petition on December 14,
2015. This filing occurred more than one year after the judgment became final, and thus,
was barred by the statute of limitations. The Petitioner does not allege, nor do we find
applicable, any of the statutory exceptions to the one-year statute of limitations. After
reviewing the record and the Petitioner’s claims, we conclude that the Petitioner has been
“provided an opportunity for the presentation of claims at a meaningful time and in a
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meaningful manner.” Burford, 845 S.W.2d at 208. Therefore, due process does not
require tolling of the statute of limitations. The post-conviction court properly dismissed
the Petitioner’s petition.

                                     III. Conclusion

      After a thorough review of the record and relevant authorities, we affirm the post-
conviction court’s judgment.

                                             ____________________________________
                                            ROBERT W. WEDEMEYER, JUDGE




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