                                                                                        07/06/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                          Assigned on Briefs April 19, 2017

            SHANTERRICA MADDEN v. STATE OF TENNESSEE

                Appeal from the Circuit Court for Rutherford County
                          No. F-75377 Royce Taylor, Judge
                     ___________________________________

                           No. M2016-01396-CCA-R3-PC
                       ___________________________________

The Petitioner, Shanterrica Madden, appeals the post-conviction court’s dismissal of her
petition for post-conviction relief as untimely. The Petitioner contends that due process
concerns should toll the one-year statute of limitations to allow review of her underlying
claims. Upon review, we affirm the judgment of the post-conviction court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES
CURWOOD WITT, JR. and JOHN EVERETT WILLIAMS, JJ., joined.

Wesley Clark, Nashville, Tennessee, for the Petitioner, Shanterrica Madden.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant
Attorney General; Jennings H. Jones, District Attorney General; and J. Paul Newman,
Assistant District Attorney General, for the Appellee, State of Tennessee.

                                       OPINION

       On May 14, 2012, a Rutherford County jury convicted the Petitioner of second
degree murder and tampering with evidence for which the Petitioner received an effective
sentence of twenty-nine years. See State v. Shanterrica Madden, No. M2012-02473-
CCA-R3-CD, 2014 WL 931031 (Tenn. Crim. App. Mar. 11, 2014), perm. app. denied
(Tenn. Sep. 18, 2014), cert. denied, 135 S.Ct. 1509 (Mar. 2, 2015) (No. 14-880). This
court affirmed her convictions and sentence on direct appeal, and the Tennessee Supreme
Court denied permission to appeal on September 18, 2014. Id.. On March 2, 2015, the
United States Supreme Court also denied the Petitioner’s petition for writ of certiorari.
Id.
        On March 29, 2016, the Petitioner filed her pro se petition for post-conviction
       1
relief. In her petition, the Petitioner alleged that she received ineffective assistance of
counsel, that the evidence was insufficient to support her second degree murder
conviction, and that she was denied due process based on impartial treatment towards the
defense and improper juror questions. On March 30, 2016, the post-conviction court
found that the Petitioner presented a colorable claim, appointed post-conviction counsel,
and ordered the State to file a response. On April 18, 2016, the State filed a motion to
dismiss the petition claiming that the petition was filed outside of the statute of
limitations and was time-barred. The State contended that the one-year statute of
limitations for the Petitioner’s post-conviction petition began to run on September 18,
2014, when the Tennessee Supreme Court denied her application to appeal. The
Petitioner did not address the statute of limitations in her post-conviction petition and did
not file an amended petition. The post-conviction court held an evidentiary hearing on
June 13, 2016.

       The attorney who represented the Petitioner at trial and on appeal was deceased at
the time of the hearing. However, trial counsel’s widow, who was also co-counsel on the
Petitioner’s case, testified at the hearing. Co-counsel testified that trial counsel wrote the
Petitioner a letter, dated April 14, 2015, which stated, in pertinent part:2

           Dear Shanterrica,

           Previously, when I sent you the denial from the United States Supreme
           Court, I failed to inform you that you have one year to file a [p]ost[-]
           [c]onviction act against [co-counsel] and I. I am truly sorry that the
           U.S.S.C. refused to hear your appeal.

           ….

           Upon your receipt and digestion[,] please advise accordingly.

       Co-counsel testified that, before trial counsel sent the April 14, 2015 letter, they
visited the Petitioner in prison and informed her that “she had a year from the U.S.
Supreme Court denial to file her post[-]conviction.” Co-counsel recalled that trial
counsel explained to Petitioner what a post-conviction appeal was and “told her to file it.”

           1
           The Petitioner asserts that her post-conviction petition was filed on February 26, 2016, the date
listed on her certificate of service and when she gave the petition to prison authorities for mailing. The
petition was not file-stamped until March 29, 2016. However, the distinction is insignificant since both
dates are well past the expiration of the one-year statute of limitations on September 19, 2015.
         2
           The letter also contained information regarding a civil case in which trial counsel was still
representing the Petitioner.
                                                   -2-
Co-counsel recalled that the deadline they discussed was in March 2016. Co-counsel said
that she was now aware this deadline was incorrect and that the Petitioner’s deadline for
filing a post-conviction petition was actually September 19, 2015, one year from the
Tennessee Supreme Court’s denial of her application for permission to appeal. Co-
counsel testified that she believed trial counsel “just didn’t know” when the statute of
limitations began running in Petitioner’s post-conviction case.

        Co-counsel said that she and trial counsel had complied with the Petitioner’s
document requests in the past but that the Petitioner did not make any further requests
after the letter was sent. Co-counsel said that the Petitioner’s case files were extensive,
consisting of approximately “10 banker boxes,” and she agreed that it would be
impossible to keep the files in an ordinary prison cell. However, co-counsel testified that,
although the Petitioner did not have access to her full case file, co-counsel and trial
counsel sent the Petitioner “legal documents as they would come in.” Co-counsel said
that the Petitioner also had an ongoing civil case at the time and that it was “really hard
for [the Petitioner], I’m sure, to keep up with the volume of information that we were
sending.” Co-counsel stated that she did not have any further contact with the Petitioner
after the letter was sent and that she was likewise unaware of any contact between the
Petitioner and trial counsel. Co-counsel denied that she or trial counsel did anything that
might have prevented the Petitioner from filing her post-conviction petition aside from
giving her the wrong filing deadline.

        The Petitioner testified that she began working on her post-conviction petition as
soon as she received trial counsel’s letter and that it took her ten months to complete.
The Petitioner estimated that she worked on her post-conviction petition for three to six
hours a day on “two or three days of the week” and that she also received legal assistance
with her petition from a prison law clerk. The Petitioner said that she only had about
“five . . . manila folders” of legal documents that were mostly related to her civil lawsuits
and that she “didn’t have all of the information that [she] needed.” However, the
Petitioner also testified that trial counsel always sent any documents that she requested.
The Petitioner testified that the last time she spoke with trial counsel was about a week
before she received his letter.

       The Petitioner stated that she was unaware that trial counsel could not file her
post-conviction petition and that she thought he was going to file the petition “because he
was still [her] attorney.” When asked whether she wrote to trial counsel requesting that
he file her post-conviction petition, the Petitioner said that she was “not sure to be
honest.” The Petitioner claimed that she did not file her post-conviction petition by
September 19, 2015, because trial counsel told her she had until March 2016 to file the
petition. The Petitioner agreed that trial counsel did not do anything else to prevent her
from filing her petition besides giving her the wrong deadline. The Petitioner disagreed
                                            -3-
that trial counsel intentionally gave her the wrong deadline and said, “I think [trial
counsel] just simply made a mistake.”

       The post-conviction court denied relief by order on June 29, 2016. The court
found that “[the] Petitioner did not face an extraordinary combination of circumstances
that prevented her from filing her post-conviction petition on time.” Accordingly, the
post-conviction court held that “trial counsel’s failure to provide the correct filing
deadline is insufficient to justify equitable tolling of the statute of limitations,” pursuant
to Whitehead v. State, 402 S.W.3d 615 (Tenn. 2013). It is from this order that the
Petitioner now timely appeals.

                                        ANALYSIS

        On appeal, the Petitioner concedes that her post-conviction petition was filed
outside the statute of limitations but argues that trial counsel’s misconduct necessitates
tolling the statute of limitations in the interests of due process. The State responds that
the post-conviction court properly dismissed the Petitioner’s claims as time-barred and
that trial counsel’s alleged misconduct is not enough to necessitate tolling the statute of
limitations in this case.

         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.” T.C.A. § 40-30-103. 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. Id. § 40-30-102(a). “The statute of limitations shall not be
tolled for any reason, including any tolling or saving provision otherwise available at law
or equity.” Id. Moreover, “[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. If it plainly appears on the face of the post-conviction petition that the
petition was filed outside the one-year statute of limitations or that a prior petition
attacking the conviction was resolved on the merits, the post-conviction court must
summarily dismiss the petition. Id. § 40-30-106(b). “The question of whether the post-
conviction statute of limitations should be tolled is a mixed question of law and fact that
is . . . subject to de novo review.” Bush v. State, 428 S.W.3d 1, 16 (Tenn. 2014) (citing
Smith v. State, 357 S.W.3d 322, 355 (Tenn. 2011))

       Tennessee Code Annotated section 40-30-102(b) provides three exceptions to the
statute of limitations for petitions for post-conviction relief: (1) claims based on a final
                                            -4-
ruling of an appellate court establishing a constitutional right not recognized as existing
at the time of trial and given retroactive effect by the appellate courts; (2) claims based
upon new scientific evidence establishing that the petitioner is actually innocent of the
conviction offense; and (3) claims seeking relief from a sentence that was enhanced
because of a previous conviction and the previous conviction was later held to be invalid.
T.C.A. §§ 40-30-102(b)(1)-(3). There is nothing in the record to suggest that any of these
exceptions apply to the Petitioner’s case.

       In addition to the statutory exceptions, due process may require tolling the statute
of limitations in certain circumstances, including situations where an attorney has
abandoned the petitioner or actively lied or misled the petitioner regarding the case. See
Whitehead, 402 S.W.3d at 631. To succeed upon such a claim, a petitioner must show
“(1) that he or she had been pursuing his or her rights diligently, and (2) that some
extraordinary circumstance stood in his or her way and prevented timely filing.” Id. The
Tennessee Supreme Court emphasized that, “‘[i]n every case in which we have held the
statute of limitations is tolled, the pervasive theme is that circumstances beyond a
petitioner’s control prevented the petitioner from filing a petition for post-conviction
relief within the statute of limitations’ . . . [which still] holds true today.” Id. at 634
(quoting Smith, 357 S.W.3d at 358) (emphasis in original). Importantly, due process
tolling “‘must be reserved for those rare instances where—due to circumstances external
to the party’s own conduct—it would be unconscionable to enforce the limitation period
against the party and gross injustice would result.’” Bush, 428 S.W.3d at 22 (quoting
Whitehead, 402 S.W.3d at 631-32).

        Turning to the present case, we conclude that the Petitioner has failed to put forth
facts that amount to “extraordinary circumstances” to justify tolling the statute of
limitations. The Petitioner’s sole criticism is that her attorney provided her with the
incorrect deadline to file her post-conviction petition. However, in Whitehead, the
Tennessee Supreme Court noted that trial counsel’s failure to accurately inform the client
about the applicable statute of limitations, standing alone, was not sufficient to require
due process tolling of the statute of limitations. Whitehead, 402 S.W.3d at 632.
Additionally, the Petitioner presented no proof that trial counsel led her to believe he was
continuing to work on the Petitioner’s case or that counsel withheld any documents or
case files that she requested. Cf. Whitehead, 402 S.W.3d at 633-34 (reasoning that
counsel’s “unreasonable delay” in sending the petitioner his files, coupled with other
attorney misconduct like the failure to inform the petitioner that his petition for certiorari
to the United States Supreme Court had been denied, constituted an “impediment that
cannot be fairly attributed” to the petitioner); cf. Williams v. State, 44 S.W.3d 464, 471
(Tenn. 2001) (holding that due process may toll the statute of limitations if the petitioner
was misled to believe that counsel was continuing the appeals process).

                                            -5-
        Although the Petitioner claimed that it took her ten months to complete her
petition, and while we sympathize with the practicalities of researching and filing a post-
conviction petition while incarcerated, this court has previously held that “a petitioner’s
personal ignorance of post-conviction procedures, ‘even when alleged to stem from an
attorney’s negligent failure to render advice to the petitioner, does not toll the running of
the statute’ of limitations.” Joshua Jacobs v. State, No. M2009-02265-CCA-R3-PC, 2010
WL 3582493, at *3 (Tenn. Crim. App. Sep. 15, 2010) (quoting State v. Phillips, 904
S.W.2d 123, 124 (Tenn. Crim. App. 1995)); see also Marcus Johnson v. State, No.
E2013-01464-CCA-R3-PC, 2014 WL 1118018 (Tenn. Crim. App. Mar. 20, 2014)
(rejecting a petitioner’s claim that he did not have time to properly review his file in three
months before the expiration of the post-conviction statute of limitations). We agree with
the post-conviction court that the Petitioner had adequate resources and documentation
available to determine the correct deadline for filing her post-conviction petition.
Accordingly, trial counsel’s mistaken advice did not constitute attorney abandonment for
purposes of tolling the statute of limitations and did not, by itself, create circumstances
beyond the Petitioner’s control which prevented timely filing. The Petitioner is not
entitled to relief.

                                      CONCLUSION

       Based on the above authority, we affirm the judgment of the post-conviction court.

                                                      ______________________________
                                                      CAMILLE R. McMULLEN, JUDGE




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