        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                            Assigned on Briefs July 16, 2013

              JOHNNY L. McGOWAN v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                   No. 2003C2205     J. Randall Wyatt, Jr., Judge


              No. M2012-02490-CCA-R3-PC - Filed September 20, 2013


Pro se petitioner, Johnny L. McGowan, appeals the Davidson County Criminal Court’s
summary dismissal of his petition for post-conviction relief. On appeal, the Petitioner asserts
that the statute of limitations should be tolled because his claim is based on a constitutional
right that did not exist at the time of his plea, and further contends that the post-conviction
court erred in failing to appoint counsel prior to dismissal. Upon review, we affirm the
judgment of the post-conviction court.

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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which D. K ELLY T HOMAS,
J R., and R OGER A. P AGE, JJ., joined.

Johnny L. McGowan, Pro se, on appeal, and Jon Wing, at trial, for the Defendant-Appellant,
Johnny L. McGowan.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney
General; Victor S. (Torry) Johnson III, District Attorney General; and Amy Hunter, on appeal
and James Douglas Sledge, at trial, Assistant District Attorneys General, for the Appellee,
State of Tennessee.

                                         OPINION

       On September 23, 2005, the Petitioner entered a guilty plea to one count of aggravated
assault. He received a sentence of eight years to be served consecutively to the sentence he
was already serving in the Department of Correction. The Petitioner did not file a direct
appeal. On September 21, 2007, the Petitioner filed a petition for writ of error coram nobis.
The trial court dismissed the petition as time-barred, and this Court affirmed on appeal. State
v. Johnny L. McGowan, M2007-02681-CCA-R3-CO, 2008 WL 4170273 (Tenn. Crim. App.
Aug. 5, 2008) perm. app. denied (Tenn. Oct. 27, 2008), perm. to rehear denied (Nov. 18,
2008).

        On August 21, 2012, the Petitioner filed a petition for post-conviction relief in which
he raised claims of ineffective assistance of counsel during the plea bargaining stage.
Acknowledging that his petition fell outside of the one-year statute of limitations, the
Petitioner asserted that his petition should be permitted under Tennessee Code Annotated
section 40-30-102(b). The Petitioner argued that the recent United States Supreme Court
decisions in Missouri v. Frye, 132 S. Ct. 1399 (2012), Lafler v. Cooper, 132 S. Ct. 1376
(2012), and Martinez v. Ryan, 132 S. Ct. 1309 (2012), which were decided less than a year
prior to the filing of his petition, established a new constitutional right requiring retroactive
application. On October 31, 2012, the post-conviction court rejected the Petitioner’s
arguments and summarily dismissed the petition as untimely. On November 15, 2012, the
Petitioner filed a timely notice of appeal.

                                             ANALYSIS

       On appeal, the Petitioner argues that the post-conviction court erred by summarily
dismissing his petition as untimely. He maintains that Frye, Lafler, and Martinez established
a new constitutional right not recognized at the time of the Petitioner’s plea, and retroactive
application is required. He further asserts that the post-conviction court improperly
dismissed his petition without appointing counsel. The State responds that the post-
conviction court properly dismissed the petition as untimely because the Petitioner failed to
allege any basis for tolling the statute of limitations. The State asserts that the cases relied
upon by the Petitioner did not announce a new constitutional right, but rather applied the
well-established Sixth Amendment right to effective assistance of counsel at the plea
bargaining stage. Upon review, we agree with the State.

       Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.
§ 40-30-103 (2006). The Tennessee Supreme Court has held that “[a] post-conviction
court’s findings of fact are conclusive on appeal unless the evidence preponderates
otherwise.” Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006). Questions of law,
however, are reviewed de novo with no presumption of correctness. Id.

        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) (2006). The statute explicitly
states, “[t]he statute of limitations shall not be tolled for any reason, including any tolling or

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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.

        Tennessee Code Annotated section 40-30-102(b) provides three exceptions to the
statute of limitations for petitions for post-conviction relief, which includes when:

       (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[.]

To determine whether a case establishes a new right for constitutional purposes, the test is
whether it “breaks new ground or imposes a new obligation on the States or the Federal
Government,” or whether it “was not dictated by precedent existing at the time the
defendant’s conviction became final.” Oung v. State, No. M2010-02076-CCA-R3-PC, 2011
WL 6382546, at *2 (quoting Teague v. Lane, 489 U.S. 288, 301 (1989)). Similarly, courts
consider “whether the rule was susceptible to debate among reasonable minds as evidenced
by conflicting case law in different jurisdictions.” Oung, 2011 WL 6382546, at *2 (citing
Butler v. McKellar, 494 U.S. 407, 415 (1990) (internal quotations removed)).

        This Court recently addressed whether Frye established a new constitutional rule in
Robinson v. State, No. W2012-01401-CCA-R3-PC, 2013 WL 1858628, at *3 (Tenn. Crim.
App. May 2, 2013). There, we concluded “that Frye did not announce a new rule of
constitutional law to be applied retroactively,” and cited numerous other courts that have
reached the same conclusion when addressing this issue. Id. (citing Buenrosto v. United
States, 697 F.3d 1137, 1139 (9th Cir. 2012); In re King, 697 F.3d 1189 (5th Cir. 2012); Hare
v. United States, 688 F.3d 878, 879 (7th Cir. 2012); In re Perez, 682 F.3d 930, 932 (11th Cir.
2012); Marcus Stovall v. United States, Nos. 1:12-CV-337, 1:02-CR-32, WL 392467, at *2
(E.D. Tenn. Jan. 31, 2013)). Our decision in Robinson is not altered by today’s holding, and
we further conclude that Lafler, likewise, does not establish a new constitutional right
requiring retroactive application.

        In Frye and Lafler, the Court held that a defendant’s Sixth Amendment right to
counsel is violated where counsel’s deficient performance at the plea bargaining stage results
in the defendant receiving a harsher sentence at trial. See Frye, 132 S. Ct. at 1404, 1410-11
(addressing attorney’s deficient failure to inform defendant of a plea offer); Lafler, 132 S.

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Ct. 1383, 1390-91 (addressing attorney’s deficient advice to reject a plea offer). Contrary
to the Petitioner’s assertions, these cases do not mark the first time that the Court has
addressed ineffective assistance of counsel at the plea bargaining stage, and do not establish
a new constitutional right. Indeed, two terms after the Court’s holding in Strickland v.
Washington, 466 U.S. 668 (1984), the Court applied the Strickland test in the context of
guilty pleas in Hill v. Lockhart, 474 U.S. 52, 58 (1985). There, the Court reasoned that “the
same two-part standard seems to us applicable to . . . the plea process,” and held, “therefore,
that the [Strickland] test applies to challenges to guilty pleas based on ineffective assistance
of counsel.” Id. The recent holdings in Frye and Lafler applied the well-established
Strickland test as extended to the plea process in Hill. See Frye, S. Ct. at 1409 (“This
application of Strickland to the instances of an uncommunicated, lapsed plea does nothing
to alter the standard laid out in Hill.”); Lafler, 132 S. Ct. at 1384 (“The question for this
Court is how to apply Strickland’s prejudice test where ineffective assistance results in a
rejection of the plea offer and the defendant is convicted at the ensuing trial.”); see also,
Buenrostro, 697 F.3d at 1140 (observing that Frye and Lafler repeatedly noted the Court’s
application of well-established law to the facts presented); In re Perez, 682 F.3d at 933
(“Lafler and Frye are not new rules because they were dictated by Strickland.”); Marcus
Stovall, WL 392467, at *2 (“[N]either the Frye nor Lafler case constitute a new rule as they
merely applied the Sixth Amendment right to effective assistance of counsel claims
according to the test articulated in [Strickland] and established in the plea bargaining context
in [Hill].”). We conclude, therefore, that Frye and Lafler did not announce a new
constitutional right, and cannot establish a ground upon which to toll the statute of limitations
under Tennessee Code Annotated 40-30-102(b)(1).

        We decline to determine whether Martinez establishes a new constitutional right
requiring retroactive application because the Petitioner has failed to provide a sufficient basis
to make that determination. Nevertheless, Martinez cannot establish a ground upon which
to toll the statute of limitations in the present case because it is inapplicable to the facts
presented. Martinez’s narrow holding concerns a procedural default based on ineffective
assistance of counsel at the state collateral proceedings phase. See Martinez, 132 S. Ct. at
1313. There, the Supreme Court concluded that where ineffective assistance claims may
only be raised in collateral proceedings, “procedural default will not bar a federal habeas
court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review
collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” 1
Id. at 1320. The Court was careful to note the narrow nature of its holding, stating “this case
does not concern attorney errors in other kinds of proceedings.” Id. Here, the Petitioner’s
claims involve attorney errors at the plea bargaining phase, and thus, Martinez is inapplicable


         1
           Martinez arose in Arizona, where state law allows claims of ineffective assistance of counsel to be raised only
in state collateral proceedings rather than on direct review. 132 S. Ct. 1309, 1313 (2012).

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to his petition. Therefore, Martinez cannot provide a basis in this case to justify tolling the
statute of limitations under Tennessee Code Annotated 40-30-102(b)(1).

        As previously noted, the Post-Conviction Procedure Act stresses that “time is of the
essence” in filing for post-conviction relief. T.C.A. § 40-30-102(a) (2006). In the event that
a petitioner files a petition for post-conviction relief outside the one-year statute of
limitations, the trial court is required to summarily dismiss the petition. See id. § 40-30-
106(b). While the Petitioner correctly notes that the post-conviction court must take “as true”
all facts alleged by the Petitioner, see Tenn. Code Ann. § 40-30-106(f), “[i]f and when a
petition is competently drafted and all pleadings, files and records of the case conclusively
show that the petitioner is entitled to no relief the court may properly dismiss the petition
without the appointment of counsel or conducting a hearing.” Martucci v. State, 872 S.W.2d
947, 949 (Tenn. Crim. App. 1993) (citing T.C.A. § 40-30-109; Stokely v. State, 470 S.W.2d
37, 39 (Tenn. Crim. App. 1971)).

       Here, the Petitioner filed his petition for post-conviction relief on August 21, 2012,
seven years after his conviction became final. Taking all allegations in his petition as true,
the Petitioner has failed to provide a basis upon which to toll the statute of limitations.
Therefore, because the Petitioner’s petition does not fit within the exception outlined in
Tennessee Code Annotated section 40-30-102(b)(1), it was properly dismissed by the post-
conviction court without appointment of counsel or an evidentiary hearing.


                                 CONCLUSION
       Upon review, we affirm the judgment of the post-conviction court.


                                                    ___________________________________
                                                    CAMILLE R. McMULLEN, JUDGE




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