        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs October 4, 2011

             TIMOTHY CASTERLOW v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                    No. 98-14186     James C. Beasley, Jr., Judge




                No. W2011-00969-CCA-R3-PC - Filed October 31, 2011


The petitioner, Timothy Casterlow, appeals from the summary dismissal of his petition for
post-conviction relief as time-barred. In this appeal, he contends that principles of due
process require the tolling of the statute of limitations. Discerning no error, we affirm.

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

J AMES C URWOOD W ITT, J R., J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and A LAN E. G LENN, JJ., joined.

Timothy Casterlow, Henning, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; and Amy P. Weirich, District Attorney General, for the appellee, State of
Tennessee.

                                          OPINION

               A Shelby County Criminal Court jury convicted the petitioner of rape of a
child, and the trial court imposed a sentence of 20 years’ incarceration. This court affirmed
the petitioner’s conviction and sentence via Rule 20 of the Rules of the Court of Criminal
Appeals. See State v. Timothy Casterlow, No. W2001-03112-CCA-R3-CD (Tenn. Crim.
App., Jackson, Aug. 8, 2002) (Order), perm. app. denied (Tenn. Dec. 23, 2002) (Casterlow
I). Nearly six years later, on September 12, 2008, the petitioner filed a petition for writ of
error coram nobis, claiming newly discovered evidence in the form of an affidavit from a
nurse practitioner who examined the victim and a medical report created by the nurse after
the petitioner’s trial. The trial court summarily dismissed the petition for writ of error coram
nobis as time-barred, and this court affirmed the dismissal, concluding that the petitioner had
failed to establish circumstances warranting tolling of the coram nobis statute of limitations
on due process grounds. See Timothy Casterlow v. State, No. W2008-02683-CCA-R3-CO
(Tenn. Crim. App., Jackson, Sept. 18, 2009), perm. app. denied (Tenn. Feb. 22, 2010)
(Casterlow II).

               On March 1, 2011, the petitioner filed a petition for post-conviction relief,
alleging that newly discovered evidence entitled him to a new trial, that he was deprived of
the effective assistance of counsel, that the trial court erred by imposing a sentence beyond
the presumptive sentence, and that the petition was timely when timed from the denial of
discretionary appeal in the coram nobis proceeding or, alternatively, that principles of due
process required the tolling of the one-year statute of limitations. The allegedly newly-
discovered evidence propounded by the petitioner consisted of the same affidavit and
medical report presented via the petition for writ of error coram nobis.

                The post-conviction court summarily denied relief, holding that the petition
was time-barred. The court concluded that the petitioner had erroneously relied upon the
denial of permission to appeal in the coram nobis proceeding and that the petitioner had
failed to state a colorable claim for relief. The court did not address the petitioner’s claim
of due process tolling. The petitioner filed a timely notice of appeal in this court.

              In this appeal, the petitioner again asserts that his petition is timely because the
supreme court’s denial of his application for permission to appeal in the coram nobis action
was the “final action” of the highest appellate court in his case. In the alternative, he
contends that due process principles require tolling of the statute of limitations because his
claim for relief did not arise until after the expiration of the limitations period. The State
contends that summary dismissal was appropriate.

               We need not tarry long over the petitioner’s claim that his petition is timely vis-
a-vis our supreme court’s denial of his application for permission to appeal in the coram
nobis proceeding. Tennessee Code Annotated section 40-30-102 provides that 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, within one
(1) year of the date on which the judgment became final.” T.C.A. § 40-30-102(a) (2006).
This section refers to direct appeal immediately following the conviction and not to an appeal
of any collateral attack filed in the case. The supreme court denied the petitioner’s
application for permission to appeal on direct appeal on December 23, 2002, see Casterlow
I; thus, the one-year period for filing a petition for post-conviction relief expired on
December 23, 2003. The instant petition, filed in 2011, was clearly untimely.

               That being said, there are exceptions to the statute of limitations. Code section

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40-30-102 provides that a petition may be filed outside the one-year limitations period if:

               (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.

Id. § 40-30-102(b). The petitioner contends that his petition is timely because the affidavit
and medical report constitute new scientific evidence establishing his actual innocence of the
offense. This is precisely the claim raised and rejected by this court in the coram nobis
proceeding. There we concluded that although the potential evidence came to light only after
the petitioner’s trial, it appeared in his attorney’s file as early as 2000 and could not,
therefore, be described as newly-discovered. Casterlow II, slip op. at 2. We see no reason
to depart from that reasoning now.

                In addition to the statutory exceptions to the statute of limitations, due process
principles may, in very limited circumstances, require tolling of the post-conviction statute
of limitations. See generally Seals v. State, 23 S.W.3d 272 (Tenn. 2000); Burford v. State,
845 S.W.2d 204 (Tenn. 1992). When a petitioner seeks tolling of the limitations period on
the basis of due process, however, he is obliged “to include allegations of fact in the petition
establishing . . . tolling of the statutory period,” and the “[f]ailure to include sufficient factual
allegations . . . will result in dismissal.” State v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001).



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               Here, contrary to the State’s assertion, the petitioner did allege in his original
petition that “due process requires that the petitioner be afforded to prove his contentions.”
He reiterates the claim on appeal, stating that “the DUE PROCESS CLAUSES of the state
and federal constitutions require that the claimant be given, ‘a reasonable opportunity to have
the claimed issue heard and determined.’” Other than his bare allegations that principles of
due process require tolling the statute of limitations in this instance, the petitioner failed to
include specific factual allegations to support his claim. Dismissal was appropriate on this
basis alone.

               Moreover, the record establishes, and our opinion in the coram nobis
proceeding confirms, that the petitioner’s attorney had access to the information as early as
2000. See Casterlow II, slip op. at 2. By his own admission, the petitioner obtained the file
from his attorney in 2004. Despite having access to the information, the petitioner waited
some seven years to file a post-conviction petition in this case. Because of this delay
between his alleged discovery of the pertinent information and the filing of the petition for
post-conviction relief, the petitioner has failed to establish that application of the statute of
limitations to bar his claim prevents him from having his claim heard in a meaningful time
or in a meaningful manner. We conclude, as we did in the coram nobis proceeding, that
principles of due process do not require the tolling of the statute of limitations.

              Accordingly, the judgment of the post-conviction court is affirmed.


                                                     _________________________________
                                                     JAMES CURWOOD WITT, JR., JUDGE




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