                                                                                       04/17/2020
       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                        AT KNOXVILLE

          PATRICK LEWIS LAFORCE v. STATE OF TENNESSEE

              Appeal from the Criminal Court for Cumberland County
                        No. 5078B Gary McKenzie, Judge
                      ___________________________________

                           No. E2019-00603-CCA-R3-PC
                      ___________________________________


The Petitioner, Patrick Lewis LaForce, appeals as of right from the Cumberland County
Criminal Court’s order summarily denying his petition for post-conviction relief as
untimely. The State has filed a motion to affirm by memorandum opinion the judgment
of the trial court. Following our review, we conclude that an opinion in this case would
have no precedential value and affirm the judgment of the post-conviction court pursuant
to Rule 20 of the Rules of the Tennessee Court of Criminal Appeals.

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


NORMA MCGEE OGLE, J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Patrick Lewis LaForce, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; Bryant C. Dunaway, District Attorney General; and Philip A. Hatch,
Assistant District Attorney General.


                             MEMORANDUM OPINION




      On October 25, 1999, the Petitioner pleaded guilty in Cumberland County
Criminal Court to two counts of felony murder, one count of aggravated burglary, and
one count of theft of property valued at $10,000 or more. Pursuant to the plea agreement,
the trial court imposed two life sentences for the felony murder convictions, a ten-year
sentence for the aggravated burglary, and a five-year sentence for the theft. The trial
court ordered the sentences for the felony murder and theft counts to be served
concurrently with one another but consecutively to the sentence for aggravated burglary.
Thus, the Petitioner was sentenced to a total effective sentence of life imprisonment plus
ten years.

        Nearly twenty years later, on January 17, 2019, the Petitioner filed a petition for
post-conviction relief alleging that his guilty plea was involuntarily and unknowingly
entered as the result of the ineffective assistance of counsel. The Petitioner specifically
alleged that trial counsel coerced him into pleading guilty by telling him he would receive
the death penalty if convicted at trial and that counsel failed to investigate his mental
state at the time of the offenses, which he alleged was impaired by marijuana use. The
Petitioner acknowledged that the petition was untimely, but he alleged that the petition
was not barred by the one-year statute of limitations because he was “unskilled in the
law,” was unaware of the limitations period, and his indigency prevented his retaining
counsel to file a petition on his behalf. On March 1, 2019, the post-conviction court
summarily denied the petition for post-conviction relief, ruling that the petition was
untimely and that insufficient grounds for tolling the statute of limitations had been
alleged.

       The Petitioner filed a timely notice of appeal from the post-conviction court’s
order denying relief. On appeal, the Petitioner alleges that the post-conviction court erred
by summarily denying the petition for post-conviction relief and that due process requires
the appointment of counsel to investigate and amend the untimely petition. The State
argues that the Petitioner failed to establish grounds for tolling the statute of limitations
and that, therefore, the post-conviction court was required to summarily deny the
untimely petition. The State asks this court to affirm the judgment of the post-conviction
court by memorandum opinion. Tenn. Ct. Crim. App. R. 20.

                                          Analysis

       Post-conviction relief “shall be granted when the 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.
However, to obtain relief, the post-conviction petition must be filed “within one (1) year
of the date on which the judgment became final.” Tenn. Code Ann. § 40-30-102(a); see
also Williams v. State, 44 S.W.3d 464, 468 (Tenn. 2001). The statute emphasizes that
“[t]ime is of the essence of the right to file a petition for post-conviction relief” and that
“the one-year limitations period is an element of the right to file the action and is a
condition upon its exercise.” Tenn. Code Ann. § 40-30-102(a). “Issues regarding
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whether due process required the tolling of the post-conviction statute of limitations are
mixed questions of law and fact and are, therefore, subject to de novo review.”
Whitehead v. State, 402 S.W.3d 615, 621 (Tenn. 2013) (citing Smith v. State, 357
S.W.3d 322, 355 (Tenn. 2011)). Generally, “appellate courts must defer to a post-
conviction court’s findings with regard to witness credibility, the weight and value of
witness testimony, and the resolution of factual issues presented by the evidence.” Id.
(citing Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999)).

        The Petitioner acknowledges that his post-conviction petition was filed outside the
one-year statute of limitations. Pursuant to Tennessee Code Annotated section 40-30-
102(b), a court does not have jurisdiction to consider a petition for post-conviction relief
if it was filed outside the one-year statute of limitations unless (1) “[t]he claim in the
petition is based upon a final ruling of an appellate court establishing a constitutional
right that was not recognized as existing at the time of trial, if retrospective application of
that right is required”; (2) “[t]he claim in the petition is based upon new scientific
evidence establishing that such petitioner is actually innocent of the offense or offenses
for which the petitioner was convicted”; or (3) “[t]he claim asserted in the petition seeks
relief from a sentence that was enhanced because of a previous conviction and the
conviction in the case in which the claim is asserted was not a guilty plea with an agreed
sentence, and the previous conviction has subsequently been held to be invalid . . . .”
Tenn. Code Ann. § 40-30-102(b). The Petitioner did not allege any of the enumerated
reasons for tolling the statute of limitations.

        Nevertheless, our supreme court has held that due process may require tolling the
statute of limitations in certain situations. Whitehead, 402 S.W.3d at 622-23.
Specifically, the court identified the following three circumstances in which due process
requires tolling the 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
compliance with the statute of limitations; and (3) when the petitioner’s attorney has
committed misconduct. Id. at 623-24. Our supreme court has explained that

       [a] petitioner is entitled to due process tolling upon a showing (1) that he or
       she has been pursuing his or her rights diligently, and (2) that some
       extraordinary circumstance stood in his or her way and prevented timely
       filing. Specifically, the second prong is met when the prisoner’s attorney of
       record abandons the prisoner or acts in a way directly adverse to the
       prisoner’s interests, such as by actively lying or otherwise misleading the
       prisoner to believe things about his or her case that are not true.

             In terms of diligence, courts have recognized that due diligence
       “does not require a prisoner to undertake repeated exercises in futility or to
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       exhaust every imaginable option, but rather to make reasonable efforts . . . .
       Moreover, the due diligence inquiry is an individualized one that must take
       into account the conditions of confinement and the reality of the prison
       system.”

Id. at 631 (citations omitted).

        In this case, the Petitioner made no allegation that mental incompetency prevented
his timely filing the petition for post-conviction relief. Likewise, he cannot establish that
his claims of ineffective assistance of counsel are later-arising claims that require due
process tolling. Regarding the Petitioner’s complaint that he is unskilled in law and
unaware of the statute of limitations, this court “has consistently 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.” Jarvis Taylor v. State, No. W2014-00683-CCA-R3-PC, 2014
WL 6491076, at *3 (Tenn. Crim. App. Nov. 20, 2014) (internal quotation marks and
citation omitted); see State v. Phillips, 904 S.W.2d 123, 124 (Tenn. Crim. App. 1995);
Frederick D. Deberry v. State, No. W2015-00951-CCA-R3-PC, 2016 WL 369390, at *4
(Tenn. Crim. App. Jan. 29, 2016). Furthermore, the Petitioner made no allegation that
any misrepresentations by counsel led him to delay filing his post-conviction petition
until almost twenty years after the statute of limitations expired.

        Based upon the foregoing, we conclude that the post-conviction court correctly
determined that the Petitioner failed to establish a basis for tolling the statute of
limitations. The post-conviction was required to summarily dismiss the petition as
untimely. Tenn. Code Ann. § 40-30-106(b).


                                        Conclusion

      We affirm the judgment of the post-conviction court pursuant to Rule 20 of the
Rules of the Tennessee Court of Criminal Appeals.



                                          _____________________________________
                                          NORMA MCGEE OGLE, JUDGE




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