        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs August 18, 2009

         DUANE MICHAEL COLEMAN v. STATE OF TENNESSEE

             Direct Appeal from the Criminal Court for Davidson County
                     No. 97-A-33    J. Randall Wyatt, Jr., Judge




                  No. M2008-02180-CCA-R3-CD - Filed July 23, 2010


Petitioner, Duane Michael Coleman, appeals the dismissal of his petition for post-conviction
relief. The Petitioner filed his petition outside the statute of limitations. Accordingly, the
judgment of the post-conviction court is affirmed.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which D AVID H. W ELLES,
and R OBERT W. W EDEMEYER, JJ., joined.

Duane Michael Coleman, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant
Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and Amy
Eisenbeck, Assistant District Attorney General, for the appellee, the State of Tennessee.

                                         OPINION

I. Background

       Petitioner was convicted on November 5, 1997, of second degree murder and
sentenced to thirty-two years as a Range II multiple offender to be served consecutively to
two four-year sentences previously imposed for attempted aggravated robbery. On appeal,
this Court affirmed the convictions and sentence. State v. Duane Coleman, No. M1998-
00663-CCA-R3-CD, 2000 WL 31858 (Tenn. Crim. App. Jan. 18, 2000).

       According to the record, Petitioner filed on January 17, 2001, a petition for post-
conviction relief, which was denied on July 5, 2001. A motion to reopen the petition was
denied on January 22, 2003, and this Court affirmed the order denying the motion to reopen
on December 29, 2005. Duane Coleman v. State, No. M2003-00512-CCA-R3-PC, order
dismissing appeal, (Tenn. Crim. App. Dec. 29, 2005). Petitioner’s application for
discretionary appeal was denied by the Supreme Court on May 1, 2006. Duane Coleman v.
State, No. M2003-00512-SC-R3-PC, 2006 Tenn. LEXIS 377 (Tenn., May 1, 2006). On
August 1, 2008, Petitioner filed a second petition for post-conviction relief alleging that “his
due process rights were violated because he was not afforded second-tier review after the
Court of Criminal Appeals affirmance of his judgment on Jan. 18, 2000.” On September 9,
2008, the post-conviction court entered an order summarily dismissing the petition.

        Pursuant to Tennessee Code Annotated section 40-30-102(a), 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. The statute emphasizes 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 such an action and is a condition upon its
exercise.” T.C.A. § 40-30-102(a).

        Additionally, Tennessee Code Annotated section 40-30-102(b), provides that the trial
court does not have jurisdiction to consider a petition for post-conviction relief if it was filed
outside the one-year statute of limitations 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; (2) the
claim in the petition is based upon new scientific evidence establishing that such petitioner
is actually innocent of the offense or offenses for which the petitioner was convicted; or (3)
the claim in the petition seeks relief from a sentence that was enhanced because of a previous
conviction and such conviction in the case in which the claim is asserted was not a guilty plea
with an agreed sentenced, and the previous conviction has subsequently been held to be
invalid. T.C.A. § 40-30-102(b).

        Clearly, in the present case, Petitioner filed his post-conviction petition well beyond
the one-year statute of limitations. This Court affirmed Petitioner’s conviction and sentence
on January 18, 2000, and no application for permission to appeal to the Supreme Court was
filed. The post-conviction petition, which is the subject of this appeal, was not filed until
August 1, 2008. Petitioner contends in his brief that the limitations period should be tolled
because his “rights were violated when he was denied second-tier review following the
Criminal Court of Appeals [sic] affirmance of the lower Court Judgment on 18 January 2008
[sic].” He claims that he was “unaware that his defense lawyer had failed to file with the
Supreme Court,” and he was “ignorant of his right to - and the steps necessary to - obtain due
process and had to rely solely on his attorney’s expertise.” Under some circumstances,


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constitutional due process may require tolling of the statute of limitations for filing a post-
conviction petition. In Williams v. State, 44 S.W.3d 464 (Tenn. 2001), our Supreme Court
concluded that “due process considerations may have tolled the limitations period” for filing
a post-conviction petition when the petitioner’s appointed counsel may have misled the
petitioner into believing that counsel was continuing the direct appeal process. Id. at 471; see
also Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000)(The strict application of the statute of
limitations of the Post-Conviction Procedure Act may not deny a petitioner “a reasonable
opportunity to assert a claim in a meaningful time and manner” if a petitioner is unable to
pursue his or her post-conviction claims due to circumstances beyond the petitioner’s control
such as a period of mental incompetence).

        However, as noted by the post-conviction court in the present case, this is Petitioner’s
second petition for post-conviction relief. Our post-conviction statute provides that only one
petition for post-conviction relief may be filed attacking a single judgment. See T.C.A. § 40-
30-1029(c). The statute further provides that if a prior petition has been resolved on the
merits by a court of competent jurisdiction, a second petition shall be summarily dismissed.
See Id. According to the record, Petitioner filed a prior petition for post-conviction relief on
January 17, 2001, which was denied by the post-conviction court on July 5, 2001.Petitioner
did not file a notice of appeal, but subsequently filed a motion to reopen that post-conviction
petition. The trial court denied the motion on January 22, 2003. On appeal, Petitioner argued
that the trial court erred in dismissing his petition for post-conviction relief and in denying
his motion to reopen. In the order dismissing Petitioner’s appeal, this Court determined that
it did not have jurisdiction to entertain the appeal because Petitioner did not file a timely
application for permission to appeal to this court as required by T.C.A. § 40-30-117(c) and
Rule 28, § 10(B), Rules of the Supreme Court. Instead, Petitioner filed a notice of appeal in
the trial court. This Court further determined that the issues arising from the denial of
Petitioner’s post-conviction petition were not properly before this Court because Petitioner
never filed a timely notice of appeal from the trial court’s order denying post-conviction
relief. However, this Court stated: “Moreover, even if an appeal had been timely filed from
the order denying post-conviction relief, there is nothing in the record before this court to
support a reversal of the trial court’s order.” Duane Coleman v. State, No. M2003-00512-
CCA-R3-PC, order dismissing appeal, (Tenn. Crim. App. Dec. 29, 2005). Since Petitioner’s
first petition for post-conviction relief was resolved on the merits by a court of competent
jurisdiction, the trial court did not err in summarily dismissing the second petition.

                                       CONCLUSION

       The judgment of the trial court is affirmed.

                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE

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