        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                          Assigned on Briefs December 2, 2014

       JEFFERSON LAWTON FREEMAN v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Henry County
                No. 40CC1-2010-CR-14758      Donald E. Parish, Judge


                No. W2014-00605-CCA-R3-PC - Filed January 14, 2015


The Petitioner, Jefferson Lawton Freeman, appeals as of right from the Henry County Circuit
Court’s summary dismissal of his petition for post-conviction relief. The Petitioner contends
that the post-conviction court erred by summarily dismissing his petition for having been
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, J R., J., delivered the opinion of the court, in which J AMES C URWOOD
W ITT, J R., and R OGER A. P AGE, JJ., joined.

Jefferson Lawton Freeman, Whiteville, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Senior Counsel;
Hansel Jay McCadams, District Attorney General; and Scott Rich, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                          OPINION

        The Petitioner entered a “best interest” guilty plea pursuant to North Carolina v.
Alford, 400 U.S. 25 (1970), to a charge of voluntary manslaughter and received a sentence
of fifteen years as a Range III, persistent offender. The judgment form was entered by the
trial court on October 11, 2011. The Petitioner filed a timely pro se petition for post-
conviction relief on February 24, 2012. Counsel was appointed and several amendments to
the petition were filed, as well as numerous other motions. However, on January 11, 2013,
the Petitioner filed a motion to withdraw his petition for post-conviction relief.

       The Petitioner’s motion stated that he met with his counsel repeatedly and “discussed
the various constitutional and other legal merits of [his] case.” The motion further stated that
counsel had provided the Petitioner with “written material to further assist [him] in
understanding [his] case.” The motion stated that counsel and the Petitioner had “discussed
the various benefits and detriments associate[d] with” withdrawing the petition. The motion
concluded, “Being fully advised of my legal rights in this action, it is my wish to withdraw
my [p]etition for [p]ost[-][c]onviction [r]elief.” The motion was signed by both the
Petitioner and his counsel.

       The post-conviction court issued a written order on January 11, 2013, “allowing the
withdrawal of a petition for post-conviction relief.” In the order, the post-conviction court
found that, “based on testimony of the Petitioner, statements of counsel for the Petitioner as
well as statements from the Assistant District Attorney and the record as a whole,” the
Petitioner had “been adequately represented” in the matter and had “been made aware of all
[c]onstitutional and [s]tatutory [r]ights associated with [the] proceedings.” The order further
stated that the Petitioner suffered “from [a] mental disease or defect,” but that “after
extensive questioning of the Petitioner,” the post-conviction court concluded that he had
“made a knowledgeable and informed choice to withdraw” his petition.

        On January 9, 2014, the instant petition for post-conviction relief was delivered to
prison officials in the prison mail room by the Petitioner. The petition was filed in the post-
conviction court on February 7, 2014. On February 21, 2014, the post-conviction court
entered a written order summarily dismissing the petition as being untimely filed. The order
stated that the Petitioner’s previous petition was withdrawn “in open court, with the
assistance of counsel and after a thorough examination in which [the Petitioner] personally
expressed his desire to do so.” In addition to finding that the petition had been untimely
filed, the order also stated that the petition was “an improper second petition for post-
conviction relief.” The Petitioner filed a timely notice of appeal.

       On appeal, the Petitioner contends that the post-conviction court erred by summarily
dismissing his petition as being untimely filed. The Petitioner argues that the withdrawal of
his original petition tolled the statute of limitations and gave him one year to file a new
petition for post-conviction relief. The State responds that the Petitioner’s withdrawal of his
original petition did not toll the statute of limitations and that his time to file a petition for
post-conviction relief expired on October 11, 2012, one year after his judgment of conviction
was entered.

       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, within one

                                               -2-
(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. § 40-30-106(b).

        A petitioner “may withdraw a petition at any time prior to the hearing without
prejudice to any rights to refile, but the withdrawn petition shall not toll the statute of
limitations . . . .” Tenn. Code Ann. § 40-30-109(c) (emphasis added). Furthermore, the Post-
Conviction Procedure Act is explicit that the one-year statute of limitations “shall not be
tolled for any reasons, including any tolling or saving provision otherwise available at law
or equity.” Tenn. Code Ann. § 40-30-102(a). The Act provides for only three narrow factual
circumstances in which the statute of limitations may be tolled, none of which apply to the
Petitioner’s case. See Tenn. Code Ann. § 40-30-102(b).

        In addition to the statutory circumstances listed above, our supreme court has held that
due process principles may require tolling the statute of limitations. Whitehead v. State, 402
S.W.3d 615, 622-23 (Tenn. 2013). To date, our supreme court “has identified three
circumstances in which due process requires tolling the post-conviction statute of
limitations”: (1) when the claim for relief arises after the statute of limitations has expired;
(2) when the petitioner’s mental incompetence prevents him from complying with the statute
of limitations; and (3) when the petitioner’s attorney has committed misconduct. Id. at 623-
24. The Petitioner does not claim that any of these circumstances justify tolling the statute
of limitations in this case.

        The post-conviction court’s order allowing the Petitioner to withdraw his original
petition stated that the Petitioner suffered from a “mental disease or defect” but that he was
competent to withdraw his petition for post-conviction relief. A petitioner seeking to toll the
statute of limitations due to mental incompetence “must make a prima facie showing that [he]
is incompetent by submitting ‘affidavits, depositions, medical reports, or other credible
evidence that contain specific factual allegations showing the petitioner’s incompetence.’”
Reid ex rel. Martiniano v. State, 396 S.W.3d 478, 512-13 (Tenn. 2013) (quoting Holton v.
State, 201 S.W.3d 626, 632 (Tenn. 2006)). “Unsupported, conclusory, or general allegations
of mental illness will not be sufficient to require tolling and prevent summary dismissal.”
State v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001), overruled on other grounds, Reid, 396
S.W.3d at 512 ; see also Tenn. Code Ann. § 40-30-106(b),(f). The Petitioner did not attach
any such supporting material to his second petition for post-conviction relief. As such, we
agree with the State that the statute of limitations expired on October 11, 2012, and affirm
the post-conviction court’s summary dismissal of the instant petition.

                                                -3-
       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




                                           -4-
