        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs, at Knoxville July 23, 2013

                   FRED MORGAN V. STATE OF TENNESSEE

              Direct Appeal from the Circuit Court for Franklin County
                        No. 18082     Buddy D. Perry, Judge


              No. M2012-02329-CCA-R3-CO- Filed September 17, 2013


The petitioner, Fred Mogan, appeals the summary dismissal of his petition for post-
conviction relief as untimely. He pled guilty to one count of aggravated sexual battery in
2008 and was sentenced to twelve years in the Department of Correction. In September
2012, the petitioner filed what appears to be his second petition for post-conviction relief in
this case. The post-conviction court dismissed the petition as untimely. On appeal, the
petitioner contends that the court should have considered his petition because due process
requires tolling the statute of limitation. Following review of the somewhat scant record
before us, we affirm the dismissal of the petition for relief.

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

J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which N ORMA M CG EE
O GLE and J EFFREY S. B IVINS, JJ., joined.

Fred Morgan, Whiteville, Tennessee, Pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Brent C. Cherry, Senior Counsel; J.
Michael Taylor, District Attorney General; and Steven M. Blount, Assistant District Attorney
General, for the appellee, State of Tennessee.




                                         OPINION
                                     Procedural History

       In March 2008, a Franklin County grand jury returned an indictment against the
petitioner charging him with two counts of rape of a child, two counts of aggravated sexual
battery, and two counts of incest. He subsequently pled guilty to one count of aggravated
sexual battery and was sentenced to twelve years in the Department of Correction.
Judgement was entered May 29, 2009, and no direct appeal was taken.

        Although not contained within the record before us, the petitioner apparently filed a
petition for post conviction relief prior to filing the one which is the subject of this appeal.
This is referenced by the petitioner, and the following statement is also included within the
post-conviction court’s dismissal order:

       The [petitioner] filed his first Petition for Post-Conviction Relief on December
       18, 2008. On or about July 17, 2009, the [petitioner] appeared in open Court
       and withdrew his Post-Conviction Petition and agreed that the Petition would
       be dismissed. The Court entered an Order dismissing the [petitioner’s] Post-
       Conviction Petition on July 17, 2009.

       Several years later, on April 27, 2012, the petitioner filed a petition for relief pursuant
to Tennessee Code Annotated section 40-35-313 as a motion to correct an illegal sentence
and to consider re-sentencing the petitioner to split confinement. In July 2012, the court
denied that petition, finding: (1) no relief was warranted because the offense for which the
petitioner was convicted of rendered him ineligible under the statute; and (2) the petition was
untimely. Next, on September 7, 2012, the petitioner filed the instant petition for post-
conviction relief and a motion to withdraw his guilty plea. There also appears in the record
an unsigned, undated petition for mental illness examination, although it bears no court
stamp to indicate that it was filed with the court.

       On September 18, 2012, the State filed a motion to dismiss the post-conviction
petition based upon the statute of limitations, the motion to withdraw the guilty plea, and the
petition for mental evaluation. For reasons not clear, the petitioner filed a notice of appeal
on September 28, 2012.

        On October 25, 2012, the post-conviction court filed an order summarily dismissing
the three petitions. On November 19, 2012the petitioner filed an amended petition for post-
conviction relief, along with a motion for leave to amend and “a declaration of petitioner in
support of the motion for leave to amend.” On November 29, 2012 he again filed these
motions, in addition to a motion to consider post-judgment facts. On December 3, 2012, the
petitioner again filed a notice of appeal. On December 19, the post-conviction court entered

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an order denying and dismissing all the petitioner’s “recent filings.”

                                           Analysis

        On appeal, the petitioner has designated three specific issues for our review: (1)
whether the trial court erred in denying the petition for post-conviction relief; (2) whether the
petitioner’s rights were violated when counsel neither withdrew from representation nor filed
an application for permission to appeal after this court ruled against him on his petition for
post-conviction relief; and (3) whether due process can be implicated when a statute of
limitations prevents the petitioner from seeking post-conviction relief. In his brief, he states
that this court should remand the case for a determination of

       when and how [he] learned that no application for permission to appeal had
       been made as to this court’s 2009 judgment affirming the dismissal of his first
       post-conviction petition; why counsel did not either withdraw or file an
       application for permission to appeal the judgment; and whether due process
       requires that [he] be given the opportunity to file an application for permission
       to appeal that judgment.

He further states that

       [w]ith this addition to the record, and the findings of the post-conviction court,
       this court can determine whether this court should withdraw and then refile its
       2009 opinion, so as to provide an opportunity for the [petitioner] to file an
       application for permission to appeal to the supreme court.

The petitioner also raises the issue that counsel was ineffective for failing to interview and
investigate potential witnesses and that his plea was coerced by the prosecution, who
threatened to prosecute his wife.

        As an initial matter, we are somewhat perplexed by the petitioner’s argument, as much
of it centers on his claim that he was not made aware of the denial of his first petition for
post-conviction relief or a subsequent affirmance by this court on appeal. However,
statements by the post-conviction court indicate that the petitioner, while present in the
courtroom, sought to withdraw the petition and agreed that it would be dismissed. We must
assume that no ruling was ever made on the merits of the petition, and further, we have no
record whatsoever of an appeal being filed with this court. Thus, the petitioner’s argument
is not meritorious.

       Nonetheless, as it appears that the first petition was voluntarily dismissed in July

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2009, the question before this court becomes one of a statute of limitations bar. Under
Tennessee Code Annotated section 40-30-102(a), a post-conviction petition must be filed
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 (1) year of the date on which the
judgment became final.” The statute explicitly states, “The statute of limitations shall not
be tolled for any reason, including any tolling or 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. 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.
T.C.A. § 40-30-106(b).

       Subsection (b) of the statute sets forth the three narrow exceptions under which an
untimely petition may be considered: (1) when the claim is based upon a final ruling of an
appellate court establishing a constitutional right that was not recognized at the time of trial
and which requires retrospective application; (2) when the claim is based upon new
scientific evidence establishing that the petitioner is innocent; and (3) when a previous
conviction that was not a guilty plea and which was used to enhance the petitioner’s sentence
has been held to be invalid. Id. § 40-30-102(b). The post-conviction court must also consider
an otherwise untimely petition if the application of the statute of limitations would be a
denial of due process. See Seals v. State, 23 S.W.3d 272, 278-79 (Tenn. 2000).

       [B]efore a state may terminate a claim for failure to comply with procedural
       requirements such as statutes of limitations, due process requires that a
       potential litigant be provided an opportunity for the “presentation of claims at
       a meaningful time and in a meaningful manner.” The test is “whether the time
       period provides an applicant a reasonable opportunity to have the claimed
       issue heard and determined.”

Id. at 277-278 (quoting Burford v. State, 845 S.W.2d 204, 207 (Tenn. 1992)).

        In the recent case of Artis Whitehead v. State of Tennessee, our supreme court
discussed the matter of due process in a post-conviction context. The court identified three
circumstances in which due process requires tolling the post-conviction statute of limitations.
Whitehead v. State, ___ S.W.3d ___, 2013 Tenn. LEXIS 310, *19 (Tenn., Mar. 21, 2013).
The first of the three circumstances involves claims for relief that arise after the statute of
limitations has expired. Id. The second due process basis for tolling the statute of limitations
involves prisoners whose mental incompetence prevents them from complying with the
statute’s deadline. Id. at *20-21. The third exception is when attorney misconduct

                                                -4-
necessitates the tolling of the statute of limitations. Id. at 21.

        As an initial matter, there is no dispute in this case that the petition for post-conviction
relief was filed outside the applicable one-year statute of limitations. Indeed, the petition at
issue was filed over four years after the judgment became final. The petitioner does not
dispute that the petition was not timely filed. Nor does he contend that any of the enumerated
statutory exceptions to the statute of limitations are applicable. We agree that none of those
are applicable on these facts, as did the post-conviction court in its order of dismissal.

        The petitioner’s argument that the untimeliness of his filing should be excused is
based upon due process. From our reading of the petitioner’s argument on appeal, he does
not appear to argue that the issues he challenges were later-arising or that mental
incompetence kept him from complying with the statute of limitations. The post-conviction
court specifically noted that “[t]he [petitioner’s] claims of ineffective assistance of counsel,
misrepresentation, violation of Sentence Reform Act and prosecutor misconduct all are
alleged to have occurred at the guilty plea hearing[.]” Thus, as concluded by the post-
conviction court, they were clearly not “later-arising” claims which arose after the running
of the statute of limitations.

        The petitioner’s main contention is one of attorney misconduct. He asserts that the
misconduct occurred when post-conviction counsel did not withdraw from representation or
file for permission to appeal following the dismissal of his initial post-conviction petition.
Again, we note that the petitioner’s claim is simply not supported by the facts on this record.
The petitioner was present in court when the initial petition was dismissed. Moreover, the
petitioner is attacking his post-conviction counsel. In Stokes v. State, the attorney failed to
withdraw or to file an appeal. 146 S.W.3d 56 (2004). Our supreme court unanimously held
that due process did not require tolling the statute of limitations because “there is no right to
effective assistance of counsel in post-conviction proceedings.” Id. at 57, 60-61.

        Due process, in the post-conviction context, serves to protect people who have not
been given the opportunity to have their issues heard in court. However, this record is clear
that the petitioner was given an opportunity to file and have heard a petition for post-
conviction relief. He chose, for whatever reason, to withdraw that petition and did not file
a subsequent timely post-conviction petition. The petitioner can not attempt to circumvent
the statute of limitations by claiming misconduct on the part of counsel at this point.

        After careful consideration of the appropriate statutes and the facts of the case, the
post-conviction court failed to find a valid reason to toll the statute of limitations. Nothing
in the record before us preponderates against the findings of the post-conviction court.



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                                     CONCLUSION

       Based upon the foregoing, the dismissal of the petition for post-conviction relief is
affirmed.




                                                  _________________________________

                                                  JOHN EVERETT WILLIAMS, JUDGE




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