         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT NASHVILLE
                            Assigned on Briefs January 26, 2005

                  KEVIN M. RADLEY v. STATE OF TENNESSEE

                     Appeal from the Criminal Court for Davidson County
                           No. 2002-C-1417 Steve Dozier, Judge



                   No. M2004-01816-CCA-R3-PC - Filed February 15, 2005


The Defendant, Kevin M. Radley, appeals from the summary dismissal of his petition seeking post-
conviction relief. The trial court determined that the petition was time-barred and dismissed the
petition without an evidentiary hearing. We affirm the judgment of the trial court pursuant to Rule
20, Rules of the Court of Criminal Appeals.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed Pursuant
                    to Rule 20, Rules of the Court of Criminal Appeals

DAVID H. WELLES, J., delivered the opinion of the court, in which JERRY L. SMITH and ROBERT W.
WEDEMEYER, JJ., joined.

Kevin M. Radley, Clifton, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; Michael Markham, Assistant Attorney General;
Victor S. Johnson, District Attorney General; and Pamela Anderson, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                  MEMORANDUM OPINION


        According to the Defendant’s petition and the record on appeal, the Defendant was convicted,
upon his plea of guilty, of aggravated assault on September 12, 2002. According to his petition, he
received a sentence of eight years in the Department of Correction. There was no appeal. On May
21, 2004, the Defendant filed a petition seeking post-conviction relief, alleging that he received the
ineffective assistance of counsel and that he was mentally incompetent at the time of his guilty plea.

        Alluding to the fact that his petition would appear to be barred by the one-year statute of
limitations applicable to post-conviction petitions, the Defendant alleged that his petition should be
treated as timely filed, because “due to Petitioner’s diminished mental capacity, Petitioner could not
perfect an appeal on this issue.” The Defendant also alleged “that he has substantial mental
problems which would toll the Statutes of Limitations in this cause.”

        The trial court found that the petition was barred by the one-year statute of limitations. See
Tenn. Code Ann. § 40-30-106(b). The court further found that the grounds for relief stated did not
fall with any exception to the limitation period. The trial court noted that although the Defendant
alleged that mental illness kept him from complying with the statute of limitations, “the petitioner
has not presented any proof as to this matter.” The trial court thus entered an order dismissing the
petition as time-barred. It is from the order of dismissal that the Defendant appeals.

        It is apparent that the post-conviction petition was filed beyond the one-year statute of
limitations. Our supreme court has held that the application of the statute of limitations could violate
due process if it denies a mentally incompetent petitioner a reasonable opportunity to seek relief in
a meaningful time and in a meaningful manner. Seals v. State, 23 S.W. 3d 272, 279 (Tenn. 2000).
The Court thus concluded that due process requires tolling of the statute of limitations during a
period of mental incompetency. See id.

        Our supreme court has subsequently emphasized that in order to rely on a tolling of the
statute of limitations based on mental incompetency, “it is incumbent upon a petitioner to include
allegations of fact in the petition establishing either timely filing or tolling of the statutory period.”
State v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001). “Failure to include sufficient factual allegations of
either compliance with the statute or incompetence requiring tolling will result in dismissal.” Id.

        Our supreme court further stated as follows:
        We emphasize that to make a prima facie showing of incompetence requiring tolling
        of the limitations period, a post-conviction petition must include specific factual
        allegations that demonstrate the petitioner’s inability to manage his personal affairs
        or understand his legal rights and liabilities. Unsupported, conclusory, or general
        allegations of mental illness will not be sufficient to require tolling and prevent
        summary dismissal under [Tenn. Code § 40-30-106(b)&(f)].

Id.

        The petition herein alleges that the Defendant has “diminished mental capacity” and
“substantial mental problems.” These unsupported, conclusory and general allegations of mental
illness are not sufficient to toll of the statute of limitations or prevent summary dismissal of the
petition as time-barred.

        Accordingly, the judgment of the trial court is affirmed.


                                                         ___________________________________
                                                         DAVID H. WELLES, JUDGE


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