                                                                                           09/05/2017
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                  Assigned on Briefs August 15, 2017 at Knoxville

                    DEAN HEATH v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                     No. 10-02252       W. Mark Ward, Judge
                      ___________________________________

                           No. W2016-00786-CCA-R3-PC
                       ___________________________________

The Petitioner filed a pro se petition for post-conviction relief. The post-conviction court
summarily dismissed the petition because it was not timely filed and the Petitioner failed
to present any factual allegations or documents allowing the tolling of the statute of
limitations. On appeal, the Petitioner concedes that his petition was untimely filed but
argues that the statute of limitations should be tolled and his petition addressed on its
merits. The Petitioner also contends that this court should treat his motion to vacate,
which was denied by the trial court, as a properly-filed petition for post-conviction relief.
After a thorough review of the record and applicable case law, we affirm.


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

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which THOMAS T.
WOODALL, P.J., and CAMILLE R. MCMULLEN, JJ., joined.

Eric Mogy, Memphis, Tennessee, for the appellant, Dean Heath.

Herbert H. Slatery III, Attorney General and Reporter; Zachary T. Hinkle, Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Omar Malik,
Assistant District Attorney General, for the appellee, State of Tennessee.


                                        OPINION

                           Factual and Procedural Background

       A Shelby County jury convicted Dean Heath, “the Petitioner,” of first degree
premeditated murder, first degree felony murder, and especially aggravated robbery. The
trial court merged the murder convictions and sentenced the Petitioner to life and
imposed a concurrent sentence of twenty-five years for especially aggravated robbery.
On direct appeal, the Petitioner claimed that the trial court erred in finding him competent
to stand trial and that there was not sufficient evidence to sustain the convictions. This
court affirmed the convictions and application for permission to appeal was denied by the
supreme court. State v. Dean Heath, No. W2011-02515-CCA-R3-CD, 2013 WL
2297133, at *1 (Tenn. Crim. App. May 23, 2013), perm. app. denied (Tenn. Oct. 17,
2013).

       On January 21, 2016, the Petitioner filed a pro se Petition for Post-Conviction
Relief (“the Petition”). Below the section of the Petition asking the Petitioner to “state
why the statute of limitations should not bar [his] claim,” was handwritten:

       Because in the matter of me failing to go pass [sic] the statute of
       limitations, was one my mental capability doen’t [sic] fully register in this
       field of work, so I had to go wit [sic] the help I could, me or my family
       can’t afford proper legal assistant for this case to be awarded in its proper
       form.

        The post-conviction court appointed counsel on February 1, 2016. On February
24, the State moved to dismiss, arguing the Petition was not timely filed. Post-conviction
counsel filed an affidavit stating that, shortly after he was appointed, he asked the
Petitioner and the Petitioner’s mother for additional information to “demonstrate the
[P]etitioner’s inability to manage his affairs or understand his legal rights and liabilities.”
Post-conviction counsel stated that, as of March 21, he had received no information from
the Petitioner or the Petitioner’s mother. On March 22, the post-conviction court entered
an order summarily dismissing the petition because it was not timely filed and because
the Petitioner “fail[ed] to present any factual allegations or documents allowing the
tolling of the statute.” On April 13, the Petitioner filed a Notice of Appeal and a motion
asking for appointment of counsel. On April 14, the post-conviction court found that it
had lost jurisdiction after the filing of a notice of appeal and denied appointment of
counsel for appeal. On August 1, the Petitioner filed a pro se “Motion to Vacate the
Previous Post-Conviction Judgment Order and/or Appoint Counsel for Purposes of
Appeal in the Interest of Justice” (“the Motion to Vacate”). By order entered on August
4, the post-conviction court denied the Motion to Vacate and again denied appointment of
counsel. On August 22, the Petitioner filed a pro se Notice of Appeal from the denial of
the Motion to Vacate.1 On September 2, this court remanded the case back to the post-
conviction court ordering “that if [post-conviction] counsel has not been allowed to
withdraw, [post-conviction] counsel shall continue to represent the [Petitioner] on

       1
       The appeal from the denial of the Motion to Vacate was assigned docket number W2016-01943-
CCA-R3-CD. This court ordered the two appellate cases to be consolidated.
                                              -2-
appeal.” The post-conviction court then ordered post-conviction counsel to continue to
represent Petitioner on appeal.

                                                  Analysis

                       Due Process Tolling of the Statute of Limitations

        On appeal, the Petitioner avers that “due process required tolling of the one[-]year
statute of limitations.” The State claims that the “[P]etitioner’s bare allegations . . . that
he suffered from mental incompetency was insufficient to establish a prima facie case for
due process tolling of the statute of limitations.” We agree with the State.

        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[.]”
Tenn. Code Ann. § 40-30-102(a). In this case, the Petitioner had one year from October
17, 2013, the date the application for permission to appeal was denied by the supreme
court, to file the Petition. Subsection 40-30-102(b) provides that “[n]o court shall have
jurisdiction to consider a petition filed after the expiration of the limitations period
unless” one of three narrow circumstances apply.2 The Petitioner does not claim that any
of the three statutory exceptions apply. Because “the General Assembly may not enact
laws that conflict with the Constitution of Tennessee or the Constitution of the United
States,” our supreme court has recognized other exceptions that can toll the running of
the one-year statute of limitations. Whitehead v. State, 402 S.W.3d 615, 622-23 (Tenn.
2013). “Both [our supreme court] and the United States Supreme Court have recognized
that fundamental due process requires that, once the legislature provides prisoners with a
method for obtaining post-conviction relief, prisoners must be afforded an opportunity to
seek this relief ‘at a meaningful time and in a meaningful manner.’” Id. quoting Burford
v. State, 845 S.W.2d 204, 208 (Tenn.1992).


        In Seals v. State, our supreme court concluded that:

        while the one-year statute of limitations set forth in Tenn. Code Ann. § 40-
        30-202(a) does not violate due process on its face, application of the statute
        must not deny a petitioner a reasonable opportunity to raise a claim in a
        meaningful time and manner. Thus, a petitioner who is mentally

        2
          “These three exceptions include: (1) claims based on a newly recognized constitutional right
that applies retroactively, and that are filed within one year of the ruling recognizing that right; (2) claims
based on new scientific evidence that proves that the prisoner is innocent of the offense; and (3) claims
seeking relief from a sentence that was enhanced because of a previous conviction that was subsequently
held to be invalid.” Whitehead 402 S.W.3d at 622.
                                                    -3-
       incompetent is denied an opportunity to raise a claim in a meaningful
       manner unless the statute of limitations is tolled during the period of mental
       incompetence.

23 S.W.3d 272, 279 (Tenn. 2000).

       In State v. Nix, our supreme court held “that due process requires tolling of the
post-conviction statute of limitations only if a petitioner shows that he is unable either to
manage his personal affairs or to understand his legal rights and liabilities.” State v. Nix,
40 S.W.3d 459, 462 (Tenn. 2001). The court noted that “the mere assertion of a
psychological problem” was not sufficient to require tolling. Id. at 463.

       In Reid ex rel. Martiniano, a case in which a petitioner facing the death penalty
sought to abandon his claim for post-conviction relief, our supreme court held that
“henceforth, all competency determinations made in the context of post-conviction
proceedings shall be conducted using the competency standards contained in Tenn. Sup.
Ct. R. 28, § 11 and discussed in this opinion.” Reid ex rel. Martiniano v. State, 396
S.W.3d 478, 518 (Tenn. 2013). The supreme court explained that Rule 28, section 11
would apply “not only when a petitioner seeks to withdraw a previously-filed petition for
post-conviction relief, but also when a petitioner seeks to toll the statute of limitations in
Tenn. Code Ann. § 40-30-102(a) due to incompetency[.]” Id. at 512. Tennessee
Supreme Court Rule 28, section 11(B)(1) provides:

       The standard for determining competency of a petitioner to withdraw a
       post-conviction petition and waive further post-conviction relief under this
       section is: whether the petitioner possesses the present capacity to
       appreciate the petitioner’s position and make a rational choice with respect
       to continuing or abandoning further litigation or on the other hand whether
       the petitioner is suffering from a mental disease, disorder, or defect which
       may substantially affect the petitioner’s capacity.

Tenn. Sup. Ct. R. 28, § 11(B)(1).

       A petitioner bears the burden of proving incompetency by clear and convincing
evidence. Tenn. Code Ann. § 40-30-110(f); see also Reid v. State, 197 S.W.3d 694, 703
(Tenn. 2006). For the evidence to be clear and convincing there can be “no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.”
State v. Sexton, 368 S.W.3d 371, 404 (Tenn. 2012) (quoting Grindstaff v. State, 297
S.W.3d 208, 221 (Tenn. 2009)) (internal quotation marks omitted). “Whether the
evidence is clear and convincing is a question of law that appellate courts must review de
novo without a presumption of correctness.” Reid ex rel. Martiniano, 396 S.W.3d at 515.
                                            -4-
A petitioner must make a prima facie showing of incompetence. See Nix, 40 S.W.3d at
464. “[A] prima facie showing of mental incompetency requires more than conclusions
or assertions[.]” Holton v. State, 201 S.W.3d 626, 634 (Tenn. 2006), as amended on
denial of reh’g (June 22, 2006). “The required prima facie showing may be satisfied by
attaching to the petition affidavits, depositions, medical reports, or other credible
evidence that contain specific factual allegations showing the petitioner’s incompetence.”
Nix, 40 S.W.3d at 464 (citing Tenn. Code Ann. § 40-30-204(e)).

        In his petition for post-conviction relief, the Petitioner has only made “mere
conclusions,” Don C. Lee v. State, No. E2006-00844-CCA-R3-PC, 2007 WL 2316388, at
*2 (Tenn. Crim. App. Aug. 14, 2007), or “mere assertions,” Nix, 40 S.W.3d at 463, that
he was mentally incompetent during the year after our supreme court denied his
application for permission to appeal. The Petitioner did not offer any credible evidence,
such as affidavits, depositions, or medical reports to support his claim of mental
incompetence during the one-year statute of limitations period. The Petitioner has failed
to prove that he did not “possess[] the present capacity to appreciate the [P]etitioner’s
position and make a rational choice with respect to” timely filing the Petition or that he
was “suffering from a mental disease, disorder, or defect which [] substantially affect[ed]
the [P]etitioner’s capacity” to understand when the Petition must be filed to be timely.
Tenn. Sup. Ct. R. 28, § 11(B)(1). Therefore, the Petitioner has failed to make a prima
facie case to toll the statute of limitations due to mental incompetence. “Absent
sufficient facts establishing [the Petitioner] is entitled to due process tolling, an untimely
petition must be dismissed.” Edward Hood, Jr. v. State, No. W2016-01998-CCA-R3-PC,
2017 WL 2482991, at *6 (Tenn. Crim. App. June 7, 2017) (citing Eddie Williams, Jr. v.
State, No. W2011-00202-CCA-R3-PC, 2011 WL 2410364, at *1-2 (Tenn. Crim. App.
June 9, 2011)), no perm. app. filed.

                                     Motion to Vacate

      The Petitioner additionally argues that this court should treat his Motion to Vacate
as a properly-filed petition for post-conviction relief. The State argues that the post-
conviction court properly denied the motion. We agree with the State.

      First, we note that the Petitioner initiated an appeal by filing his pro se Notice of
Appeal with the clerk of the appellate court on April 13, 2016. Tenn. R. App. P. 3(e).
The Motion to Vacate was filed on August 1, 2016, over three and one-half months after
the Petitioner initiated an appeal from the judgment he was seeking to have vacated.
“The jurisdiction of the Court of Criminal Appeals attaches upon the filing of the notice
of appeal, and therefore, the [post-conviction] court los[t] jurisdiction” before the Motion
to Vacate was filed. State v. Pendergrass, 937 S.W.2d 834, 837 (Tenn. 1996).

                                            -5-
        Second, the Motion to Vacate does not provide any additional credible evidence to
allow tolling the one-year statute of limitations. We decline to treat the untimely filed
Motion to Vacate as a petition for post-conviction relief, and even if we treated it as such,
for the reasons previously discussed in this opinion, it would have been filed outside the
statute of limitations. See Randall Turner v. State, No. E2011-00110-CCA-R3-PC, 2011
WL 2416927, at *2 (Tenn. Crim. App. June 13, 2011), perm. app. denied (Tenn. Sept. 21,
2011) (affirming the trial court’s summary dismissal of the petitioner’s Motion to Vacate
Convictions, which our court stated “appears in substance to be a proceeding brought
pursuant to the Post-Conviction Procedure Act,” because the motion “state[d] only a
conclusory basis for due process tolling” of the one-year statute of limitations).

                                        Conclusion

       The judgment of the post-conviction court summarily denying the petition for
post-conviction relief because it was not timely filed is affirmed.


                                              ____________________________________
                                              ROBERT L. HOLLOWAY, JR., JUDGE




                                            -6-
