        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                 Assigned on Briefs September 18, 2012 at Knoxville

           DONALD KEITH SOLOMON v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Bedford County
                       No. 17,404-PCR      F. Lee Russell, Judge


               No. M2012-01161-CCA-R3-PC - Filed December 19, 2012


The Petitioner, Donald Keith Solomon, appeals as of right from the Bedford County Circuit
Court’s denial of his petition for post-conviction relief. The Petitioner contends that the post-
conviction court erred by summarily dismissing his petition for being untimely filed.
Discerning no error, we affirm the judgment of the post-conviction court.

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

D. K ELLY T HOMAS, JR., J., delivered the opinion of the court, in which J OHN E VERETT
W ILLIAMS and R OBERT W. W EDEMEYER, JJ., joined.

James R. Tucker, Jr., Shelbyville, Tennessee (on appeal), for the appellant, Donald Keith
Solomon.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
Robert Carter, District Attorney General; and Richard A. Cawley, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                          OPINION

        Based upon the scant record before this court, the Petitioner pled guilty in 2009 to an
unspecified offense for which he remains incarcerated. On March 26, 2012, the Petitioner
sent a letter to the Bedford County Circuit Court requesting that an attorney be appointed to
assist him “in preparing and filing” a petition for post-conviction relief. In the letter, the
Petitioner complained that his trial counsel was ineffective and “neglected to advise [him]
of certain aspects of [his] defense[] that would have led [him to] not accept” the plea
agreement. The Petitioner also complained that trial counsel did not have time “to prepare
or investigate a proper defense” and that trial counsel failed to meet with him prior to his
acceptance of the plea agreement. The Petitioner further complained that the State’s “key
evidence against” him, a videotape of his interview with the police, “violated [his]
constitutional and civil rights” because his repeated requests for an attorney during the
interview were ignored.

        On April 16, 2012, the post-conviction court entered an order treating the Petitioner’s
letter as a petition for post-conviction relief and summarily dismissing the petition because
it was filed beyond the one-year statute of limitations. The Petitioner responded to the post-
conviction court’s order with a second letter complaining that he was “a lay person,” that he
was unaware that his “rights were violated” until March 2012, that “such time limitations
should start at the time [he] knew [he] was wronged,” and that there was no statute of
limitations “on a manifest of justice.” The Petitioner also complained that he was not present
when the post-conviction court heard this matter and that he was not allowed to prepare and
present evidence to support his claims. The Petitioner requested that counsel be appointed
to represent him to appeal the post-conviction court’s summary dismissal of his petition. The
post-conviction court appointed counsel and a timely notice of appeal was filed.

        On appeal, the Petitioner contends that the post-conviction court erred in summarily
dismissing his petition. The Petitioner argues that the post-conviction court erred by
dismissing his petition without appointing counsel to investigate and raise any possible
arguments for tolling the statute of limitations. The Petitioner also argues, generally, that due
process justified tolling the statute of limitations in this matter. However, the Petitioner
provides no factual support for this argument. The State responds that the Post-Conviction
Procedure Act requires a post-conviction court to summarily dismiss a petition when it is
untimely filed and states no proper reason for tolling the statute of limitations. The State
further responds that there is no authority requiring a post-conviction court to appoint counsel
prior to summary dismissal for the purpose of investigating an untimely petition.

         Post-conviction relief is available when a “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.” Tenn. Code Ann. § 40-30-103. A petition for post-
conviction relief 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, withing one
(1) year of the date on which the judgment became final . . . .” Tenn. Code Ann. § 40-30-
102(a). “[T]he right to file a petition for post-conviction relief . . . shall be extinguished upon
the expiration of the limitations period.” Id. “If it plainly appears from the face of the
petition, any annexed exhibits or the prior proceedings in the case that the petition was not
filed . . . within the time set forth in the statute of limitations, . . . the judge shall enter an
order dismissing the petition.” Tenn. Code Ann. § 40-30-16(b); see also Tenn. Sup. Ct. R.
28, §5(F) (stating that “[a] petition my be dismissed without a hearing if it: (1) is not timely



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filed; [or] . . . (4) does not state the reasons that the claim is not barred by the statute of
limitations”).

        The Post-Conviction Procedure Act provides three factual circumstances in which the
statute of limitations may be tolled: (1) the claim is based upon a constitutional right “that
was not recognized as existing at the time of trial, if retrospective application of that right is
required”; (2) the claim is based upon “new scientific evidence” establishing the actual
innocence of the petitioner; or (3) the claim seeks relief from a sentence that was enhanced
based upon a previous conviction which was subsequently held to be invalid and the previous
conviction “was not a guilty plea with an agreed sentence.” Tenn. Code Ann. § 40-30-
102(b). There is nothing in the record to suggest that any of these exceptions apply to the
Petitioner’s case.

        In addition to the statutory circumstances listed above, our supreme court has held that
“in certain circumstances, due process prohibits the strict application of the post-conviction
statute of limitations to bar a petitioner’s claim . . . when the grounds arise after the point at
which the limitations period would normally have begun to run.” Sands v. State, 903 S.W.2d
297, 301 (Tenn. 1995) (emphasis added). To determine whether due process tolls the post-
conviction statute of limitations, courts utilize the following 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 fo the case, a strict application of the
       limitations period would effectively deny the petitioner a reasonable
       opportunity to present the claim.

Id. (emphasis added).

        Here, the Petitioner does not contend that his claims arose after the limitations period
commenced. Instead, the Petitioner contends that he was simply unaware that he had any
cognizable post-conviction claims until March 2012 because he was “a lay person.” This
court has repeatedly held that a petitioner’s ignorance of post-conviction procedures and
“mere lack of knowledge that a claim exits” does not constitute a due process violation which
would toll the statute of limitations. Joshua Jacobs v. State, No. M2009-02265-CCA-R3-PC,
2010 WL 3582493, at *3 (Tenn. Crim. App. Sept. 15, 2010) (citing cases), perm. app. denied,
(Tenn. Jan. 20, 2011). As such, the Petitioner has failed to assert a valid reason to toll the
statute of limitations. With respect to the Petitioner’s contention that the post-conviction
court should have appointed him counsel prior to summary dismissal to investigate and raise
any possible arguments for tolling the statute of limitations, we agree with the State that there

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is no legal authority to justify such an appointment. Accordingly, we affirm the post-
conviction court’s summary dismissal of the untimely petition.

       Upon consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.




                                                 _________________________________
                                                 D. KELLY THOMAS, JR., JUDGE




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