        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                    Assigned on Briefs at Knoxville May 20, 2014

            KELVIN DEWAYNE KING v. STATE OF TENNESSEE

                 Appeal from the Criminal Court for Davidson County
                   No. 2006-B-1695    J. Randall Wyatt, Jr., Judge


                  No. M2013-02505-CCA-R3-PC - Filed June 23, 2014


The Petitioner, Kelvin Dewayne King, appeals as of right from the Davidson County
Criminal Court’s dismissal of his petition for post-conviction relief. The Petitioner contends
that the post-conviction court erred by dismissing his petition as 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 Criminal Court Affirmed

D. K ELLY T HOMAS, J R., J., delivered the opinion of the court, in which T HOMAS T. W OODALL
and J EFFREY S. B IVINS, JJ., joined.

Richard D. Dumas, Jr., Nashville, Tennessee, for the appellant, Kelvin Dewayne King.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith DeVault, Senior Counsel;
Victor S. Johnson, III, District Attorney General; and Kathy Morante, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                         OPINION

        Following a jury trial in March 2007, the Petitioner was convicted of three counts of
first degree premeditated murder, three counts of first degree felony murder, and one count
of especially aggravated robbery. The trial court merged the first degree premeditated
murder and first degree felony murder convictions and sentenced the Petitioner to an
effective sentence of two life sentences without the possibility of parole. This court affirmed
the Petitioner’s convictions and sentences on direct appeal. See State v. Kelvin Dewayne
King, No. M2009-01778-CCA-R3-CD, 2010 WL 1172209 (Tenn. Crim. App. Mar. 26,
2010), perm. app. dismissed, (Tenn. June 30, 2010). On June 30, 2010, our supreme court
dismissed the Petitioner’s application for permission to appeal because it was untimely.
        On July 14, 2011, the Petitioner filed a pro se motion seeking a “suspension of the
rules” and an extension of time to file his petition for post-conviction relief. A second such
motion was filed by appointed counsel on September 20, 2011. Both motions alleged that
a “satellite library” in the unit where the Petitioner was being held at the Northwestern
Correctional Complex (NWCX) was closed on June 28, 2011, and that the Petitioner was
unable to access legal materials needed to finish preparing his petition before the one-year
statute of limitations ran. Both motions also incorrectly stated that the last day for filing the
petition was July 9, 2011, rather than the actual deadline of June 30, 2011.

        On October 5, 2012, the Petitioner filed a petition for post-conviction relief, and on
November 6, 2012, the Petitioner filed an amended petition for post-conviction relief. Both
petitions also raised the issue of the tolling of the statute of limitations and alleged that the
satellite library was closed on June 28, 2011. The trial court held a hearing on the timeliness
issue, at which the Petitioner testified. The Petitioner claimed the satellite library closed in
March or April 2011 despite the fact that he had averred in all of his previous pleadings that
it had closed on June 28, 2011. The Petitioner had also attached a memorandum from
NWCX officials to his motion for an extension of time which was dated June 20, 2011, and
stated that the library would “be removed” “[b]eginning [that] week.”

       The Petitioner admitted that he could still access legal materials from the NWCX’s
main library by filling out a request form. However, the Petitioner complained that there was
a lengthy delay between his requests and his receipt of the requested materials. The
Petitioner also admitted that he “got everything [he] needed” to file his petition “four to five
weeks before [his] time was up.” The Petitioner implied that he filed his motion for an
extension of time “as soon as” he found out that he was not “going to be able to finish” his
petition prior to the statute of limitations running. When confronted by the prosecutor about
whether the motion was actually filed after the deadline, the Petitioner was unable to answer
her questions. In a written order filed October 10, 2013, the post-conviction court dismissed
the petition for having been untimely filed.

        On appeal, the Petitioner contends that the trial court erred by dismissing his petition
due to untimeliness. The Petitioner argues that the statute of limitations should have been
tolled because he was denied his right to due process when the satellite library was removed
from his unit. The State responds that the Petitioner “has failed to establish that he suffered
any violation of due process and failed [to] establish that any of the narrow exceptions to the
one-year statute of limitations apply to him.”

        At the outset, the State argues that the Petitioner has waived our review of this issue
by failing to reference any facts “relevant to the issue presented for review” in his brief and
by failing to make the required references to the record. See Tenn. Ct. Crim. App. R. 10(b)

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(“Issues which are not supported by argument, citation to authorities, or appropriate
references to the record will be treated as waived in this court”). In fact, it appears that the
majority of the Petitioner’s brief was copied from portions of his petition for post-conviction
relief filed in October 2012. Additionally, there is nothing in the brief that refers to the post-
conviction court’s hearing on this issue. Typically, such a flagrant disregard for this court’s
rules would result in waiver of our review. However, in the interest of finality, we will
address the Petitioner’s issue on the merits.

         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
(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).

        The Post-Conviction Procedure Act provides three factual circumstances in which the
statute of limitations may be tolled: (1) the claim is based upon a constitutional right “that
was not recognized as existing at the time of trial, if retrospective application of that right is
required”; (2) the claim is based upon “new scientific evidence” establishing the actual
innocence of the petitioner; or (3) the claim seeks relief from a sentence that was enhanced
based upon a previous conviction which was subsequently held to be invalid and the previous
conviction “was not a guilty plea with an agreed sentence.” Tenn. Code Ann. § 40-30-
102(b). There is nothing in the record to suggest that any of these exceptions apply to the
Petitioner’s case.

        In addition to the statutory circumstances listed above, our supreme court has held that
due process 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. There is nothing
in the record to suggest that any of these circumstances apply to the Petitioner’s case.




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        We need not determine whether denial of access to legal materials would constitute
a fourth circumstance in which due process requires tolling the post-conviction statute of
limitations because the record established that the Petitioner was never denied access to legal
materials. The Petitioner averred in all of his pleadings that the satellite library was closed
on June 28, 2011, two days before the deadline. Even if the library had been closed in March
or April as the Petitioner claimed at the hearing on this matter, the Petitioner was still able
to request legal materials from the NWCX facility’s main library. In fact, the Petitioner
testified that he “got everything [he] needed” to file his petition “four to five weeks before
[his] time was up.” Furthermore, the Petitioner did not file his motion for an extension of
time until fourteen days after the statute of limitations had lapsed and did not file an actual
petition for post-conviction relief until October 5, 2012, over a year past the one-year
deadline. Accordingly, we affirm the post-conviction’s dismissal of the petition due to
untimeliness.

       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




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