         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs October 15, 2003

                       JOSEPH MARTIN THURMAN v. STATE

              Post-Conviction Appeal from the Circuit Court for Marion County
                             No. 5556 Buddy D. Perry, Judge



                    No. M2002-00637-CCA-R3-PC - Filed February 3, 2004


The petitioner, Joseph Martin Thurman, appeals the dismissal of his petition for post-conviction
relief based upon its filing beyond the statute of limitations. He argues that due process
considerations tolled the limitations period of Tennessee Code Annotated section 40-30-102(a) and
that the trial court erred in dismissing the petition without an evidentiary hearing. Because the time
for filing the petition cannot be tolled under the circumstances presented in this case, we conclude
that the petition for post-conviction relief was untimely and we affirm the decision of the trial court.



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

JERRY L. SMITH, J., delivered the opinion of the court, in which DAVID G. HAYES, and THOMAS T.
WOODALL, JJ., joined.

Howard L. Upchurch, Pikeville, Tennessee, for the appellant, Joseph Martin Thurman.

Paul G. Summers, Attorney General & Reporter; Jennifer L. Bledsoe, Assistant Attorney General;
J. Michael Taylor, District Attorney General, for the appellee, State of Tennessee.


                                              OPINION


                                        Factual Background

       A Marion County jury convicted the petitioner of first degree murder and arson, and he was
sentenced to life in prison for first degree murder and three years for arson, to be served concurrently.
This Court affirmed his convictions on direct appeal. See State v. Joseph Martin Thurman, No.
01C01-9706-CC-00231, 1999 WL 173676 (Tenn. Crim. App. at Nashville, Mar. 31, 1999), perm.
to appeal denied, (Tenn. Oct. 4, 1999). The petitioner filed a petition for post-conviction relief on
January 18, 2001, and an amendment to the petition was filed November 5, 2001, along with an
affidavit executed by the petitioner. The affidavit claimed that his trial attorney failed to
communicate the status of the application for permission to appeal to the supreme court and that he
did not learn of the supreme court’s denial of the application for permission to appeal until June of
2000, when his family contacted another attorney. The State filed a motion to dismiss the petition
as untimely. Following a hearing on the motion to dismiss, the trial court dismissed the petition.
The trial court found that the statute of limitations for filing the petition for post-conviction relief
began to run on October 5, 1999, and expired one year later pursuant to Tennessee Code Annotated
section 40-30-102(a). The lower court found that:

        [A]ssuming that the actions or inaction of petitioner’s former counsel did in fact
        result in petitioner not becoming aware of the final actions of the Tennessee
        Appellate Courts in his case until June of 2000, the petitioner would have still had
        until the first week of October of 2000 in which to file for post-conviction relief
        under T.C.A. 40-30-202(a),1 but did not do so. The Court does not find that the
        petitioner was deprived of his rights to the due process of law in this case, and that
        consideration of his petition for post-conviction relief is barred by the limitation
        period of T.C.A. 40-30-202(a).

          The petitioner appeals, arguing that the trial court erred in dismissing the petition without
an evidentiary hearing. He claims that he should be entitled to maintain a post-conviction action
even though the statutory time to file the petition has expired. For authority, the petitioner relies
primarily on Williams v. State, 44 S.W.3d 464, 467-68 (Tenn. 2001) and Seals v. State, 23 S.W.3d
272, 279 (Tenn. 2000), in which the supreme court held that the strict application of the statute of
limitations applying to post-conviction petitions cannot deny a petitioner the “reasonable opportunity
to assert a claim in a meaningful time and manner.” The State argues that the petitioner has set forth
no factual basis to toll the statute of limitations and that the trial court did not err in dismissing the
petition for post-conviction relief. We agree.

        In addition to fixing a one-year statute of limitations for the filing of a post-conviction
petition, Tennessee Code Annotated section 40-30-102(a) contains a statement of legislative policy
with respect to post-conviction proceedings. The statute provides:

        The statute of limitations shall not be tolled for any reason, including any tolling or
        saving provision otherwise available at law or equity. Time is of the essence of the
        right to file a petition for post-conviction relief or a motion to reopen established by
        this chapter, and the one-year limitations period is an element of the right to file such
        an action and is a condition upon its exercise. Except as specifically provided in
        subsections (b) and (c), the right to file a petition for post-conviction relief or a
        motion to reopen under this chapter shall be extinguished upon the expiration of the
        limitations period.


        1
            Tennesse e Co de A nnotated sec tion 40 -30-2 02 w as renumbe red section 4 0-30 -102 in 200 3.

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Tenn. Code Ann. § 40-30-102(a) (2003).

Thus, it is apparent that the legislature intended to definitively restrict, rather than expand, the time
frame within which post-conviction proceedings must be initiated. The only exceptions to the one-
year statutory period for filing a petition for post-conviction relief are set forth in Tennessee Code
Annotated section 40-30-102(b), and include: (1) claims based on an appellate ruling concerning a
constitutional right not recognized at the time of the trial and given retroactive effect by the appellate
courts; (2) claims based upon newly discovered scientific evidence which establishes that the
petitioner is actually innocent of the crime; and (3) claims which arise out of a situation where the
petitioner received an enhanced sentence for a crime based on previous convictions which were later
held to be invalid. See Tenn. Code Ann. § 40-30-102(b) (2003). The petitioner herein has not
alleged the existence of any of the exceptions embodied in Tennessee Code Annotated section 40-30-
102(b).

        Further, although the supreme court has also recognized certain narrow factual scenarios in
which the application of the one-year statute of limitations would violate a petitioner’s due process
guarantees, the test is “whether the time period provides an applicant a reasonable opportunity to
have the claimed issue heard and determined.” Seals, 23 S.W.3d at 278. Additionally, this Court
has held that a petitioner’s personal ignorance of post-conviction procedures, “even when alleged
to stem from an attorney’s negligent failure to render advice to the petitioner, does not toll the
running of the statute” of limitations. State v. Phillips, 904 S.W.2d 123, 124 (Tenn. Crim. App.
1995). In the case herein, this Court affirmed the petitioner’s convictions on March 31, 1999, and
the supreme court denied his application for permission to appeal on October 4, 1999. The petitioner
learned of the denial of the application for permission to appeal in June of 2000, several months prior
to the expiration of the statute of limitations. The petition for post-conviction relief was not filed
until January 18, 2001, more than three months after the expiration of the statute of limitations. We
conclude that the petition for post-conviction relief was untimely under the circumstances.
Accordingly, we affirm the judgment of the trial court dismissing the petition.


                                                ________________________________________
                                                JERRY L. SMITH, JUDGE




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