        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs May 15, 2013

              JACK LAYNE BENSON v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Bedford County
                           No. 17446   Lee Russell, Judge


               No. M2012-02041-CCA-R3-PC - Filed September 6, 2013


Pro se petitioner, Jack Layne Benson, appeals the post-conviction court’s denial of his second
petition for post-conviction relief, which the court treated as a motion to reopen his first
petition for post-conviction relief. On appeal, the petitioner asserts that he received
ineffective assistance of counsel during the first post-conviction petition, which prevented
him from seeking permission to appeal to the Tennessee Supreme Court. He also asserts that
the post-conviction court improperly dismissed his petition without the benefit of an
evidentiary hearing in violation of his due process rights. 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

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which R OBERT W.
W EDEMEYER and R OGER A. P AGE, JJ., joined.

Jack Layne Benson, Nashville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Leslie E. Price, Senior Counsel,
Assistant Attorney General; Victor S. (Torry) Johnson, III, District Attorney General; and
Richard Cawley, Assistant District Attorney General, for the Appellee, State of Tennessee.

                                         OPINION

       In 1996, a Bedford County jury convicted the petitioner of first degree felony murder
and especially aggravated robbery, for which he was sentenced to consecutive terms of life
and twenty-four years. On direct appeal, the petitioner challenged the imposition of
consecutive sentencing. This Court affirmed the judgment of the trial court on August 15,
1998, and the Tennessee Supreme Court denied the petitioner’s permission to appeal on
March 15, 1999. State v. Jack Layne Benson, No. 01C01-9707-CC-00283, 1998 WL 531873
(Tenn. Crim. App. Aug. 25, 1998), perm. app. denied, (Tenn. Mar. 15, 1999).

       The petitioner filed a timely petition for post-conviction relief, asserting ineffective
assistance of counsel at trial and on direct appeal. The post-conviction court held an
evidentiary hearing and entered an order denying the petition. This Court affirmed the denial
of post-conviction relief on August 2, 2000. Jack Layne Benson v. State, No. M1999-01649-
CCA-R3-PC, 2000 WL 1130116 (Tenn. Crim. App. Aug. 2, 2000).

       On July 6, 2012, the petitioner filed a second petition for post-conviction relief,
alleging ineffective assistance of counsel during his previous post-conviction proceeding and
a violation of due process. In his second petition, the petitioner asserted that he was
prevented from pursuing a Rule 11 application for permission to appeal to the Tennessee
Supreme Court pro se because his attorney failed to return the only copy of his trial
transcripts, which was “a necessary tool to aid him in attacking his conviction.” Based on
these allegations, the petitioner contends that he is entitled to a delayed appeal.

        On July 10, 2012, the post-conviction court entered an order summarily dismissing
the petition. It treated the petition as a motion to reopen the first post-conviction petition and
determined that it did not raise any issues that permit reopening under Tennessee Code
Annotated section 40-30-102(c) (2013). The order also noted that this Court had advised the
petitioner of his counsel’s withdrawal and the time requirements for filing an application for
permission to appeal to the Tennessee Supreme Court.

       On July 17, 2012, the petitioner filed a “Notice of Appeal” of the trial court’s order
denying post-conviction relief pursuant to Rule 4 of the Tennessee Rules of Appellate
Procedure. The notice stated that petitioner was appealing the judgment of the post-
conviction court, which denied his petition “without [the] benefit of [an] evidentiary hearing
on July 10th, 2012.”

                                          ANALYSIS

        On appeal, the petitioner asserts that he was denied the opportunity to seek permission
to appeal his original post-conviction petition to the Tennessee Supreme Court, which
violated his due process rights. He maintains that he received ineffective assistance of
counsel during his original post-conviction proceedings based on counsel’s failure to return
his trial transcripts, which prevented him from perfecting a Rule 11 appeal pro se. He further
asserts that the post-conviction court’s summary dismissal of his petition without an
evidentiary hearing violated his due process rights. In response, the State contends that the
court properly treated the second petition as a motion to reopen the first petition for post-

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conviction relief and that the petitioner’s appeal to this Court should be dismissed because
the petitioner failed to comply with the procedural requirements to raise such an appeal.
Additionally, the State argues that the post-conviction court properly denied the motion
because the petitioner has failed to raise any issues that permit reopening. Finally, the State
asserts that petitioner is not entitled to a delayed appeal from a denial of a petition for post-
conviction relief under the statute, and therefore, summary dismissal was appropriate. We
agree with the State that the post-conviction court properly denied the petition.

        When determining whether a colorable claim has been presented, pro se petitions are
held to a less rigid standard than formal pleadings drafted by attorneys. Allen v. State, 854
S.W.2d 873, 875 (Tenn. 1993) (citing Gable v. State, 836 S.W.2d 558, 559-60 (Tenn. 1992)).
Construing the petitioner’s filing in this case leniently, we can interpret it as either (1) a
motion to reopen the first petition for post-conviction relief, or (2) a second petition for post-
conviction relief. Under either interpretation, we conclude that the petitioner is not entitled
to relief.

       First, construing the petitioner’s filing as a motion to reopen the original petition for
post-conviction relief, we agree with the State that the petitioner did not follow the statutory
requirements to appeal the post-conviction court’s denial of the motion. Tennessee Code
Annotated section 40-30-117(c) governs an appeal from the denial of a motion to reopen:

       If the motion is denied, the petitioner shall have thirty (30) days to file an
       application in the court of criminal appeals seeking permission to appeal. The
       application shall be accompanied by copies of all the documents filed by both
       parties in the trial court and the order denying the motion.

Tenn. Code Ann. § 40-30-117(c). The Tennessee Supreme Court has summarized the
requirements of the statute, stating that it “outlines four requirements of an appeal from a
motion to reopen to be considered: (1) the timeliness of filing, (2) the place of filing, (3) the
application to be filed, and (4) the attachments to the application.” Graham v. State, 90
S.W.3d 687, 689 (Tenn. 2002). Although the petitioner filed a document entitled “Notice
of Appeal” pursuant to Rule 4 of the Tennessee Rules of Appellate Procedure, a notice of
appeal may be treated as an application for permission to appeal as long as it “contain[s]
sufficient substance that it may be effectively treated as an application for permission to
appeal.” Id. at 691. This generally requires the application to include “the date and judgment
from which the petitioner seeks review, the issue which the petitioner seeks to raise, and the
reasons why the appellate court should grant review.” Id. (citing Tenn. R. App. P. 9(d),
10(c), 11(b)). When the petitioner fails to follow the statutory requirements seeking review
of a denial of a motion to reopen, this Court is without jurisdiction to consider the appeal.
Mario Gates v. State, No. W2002-02873-CCA-R3-PC, 2003 WL 23100815, at *2 (Tenn.

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Crim. App., at Jackson, Dec. 31, 2003) (citing John Harold Williams, Jr. v. State, No.
W1999-01731-CCA-R3-PC, 2000 WL 303432, at *1 (Tenn. Crim. App., at Jackson, Mar.
23, 2000), perm. app. denied, (Tenn. Oct. 16, 2000)).

       Here, the petitioner’s notice of appeal cannot be treated as an application for
permission to appeal. Although the notice complies with the requirements that an application
for permission to appeal be filed in this Court within thirty days and state the date and
judgment from which it seeks review, it does not comply with the other requirements. The
notice does not state the issues for review or the reasons why the petitioner deserves relief.
The notice simply states that the petition was “denied without [the] benefit of [an]
evidentiary hearing.” Such a statement fails to provide “sufficient substance that it may be
effectively treated as an application for permission to appeal.” Graham, 90 S.W.3d at 691.
We, therefore, conclude that the petitioner failed to properly seek review of the post-
conviction court’s denial of the motion to reopen, and we lack jurisdiction to review the
appeal.

       Furthermore, even if the petitioner had properly appealed the denial of his motion to
reopen, the post-conviction court correctly denied the motion because the allegations in the
petition do not fall within the limited circumstances for reopening a first post-conviction
petition. Tennessee Code Annotated section 40-30-117(a) allows a petitioner to file a motion
to reopen a post-conviction petition only when:

       (1) The claim in the motion 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. The motion
       must be filed within one (1) year of the ruling of the highest state appellate
       court or the United States supreme court establishing a constitutional right that
       was not recognized as existing at the time of trial; or

       (2) The claim in the motion is based upon new scientific evidence establishing
       that the petitioner is actually innocent of the offense or offenses for which the
       petitioner was convicted; or

       (3) The claim asserted in the motion 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, in which case
       the motion must be filed within one (1) year of the finality of the ruling
       holding the previous conviction to be invalid; and



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       (4) It appears that the facts underlying the claim, if true, would establish by
       clear and convincing evidence that the petitioner is entitled to have the
       conviction set aside or the sentence reduced.

Tenn. Code Ann. § 40-30-117(a). None of these grounds for reopening the petition for post-
conviction relief are applicable here. Indeed, the petitioner even concedes that he does not
satisfy the permissible grounds to reopen the petition. Therefore, the post-conviction court
properly denied the petitioner’s motion to reopen.

       Second, construing the petitioner’s filing as a petition for post-conviction relief, we
conclude that the post-conviction court properly denied the petition without an evidentiary
hearing.

        The Post-Conviction Procedure Act of 1995 requires that a post-conviction petition
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 year of the date on which the
judgment becomes final. Tenn. Code Ann. § 40-30-102(a). The statute 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. Section 40-30-102(b) sets out
limited circumstances where late filings may be considered:

       (1) The 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. The petition must be filed
       within one (1) year of the ruling of the highest state appellate court or the United
       States supreme court establishing a constitutional right that was not recognized as
       existing at the time of trial;

       (2) The claim in the petition is based upon new scientific evidence establishing that
       the petitioner is actually innocent of the offense or offenses for which the petitioner
       was convicted; or

       (3) The 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, in which case the petition must be filed
       within one (1) year of the finality of the ruling holding the previous conviction to be
       invalid.



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Tenn. Code Ann. § 40-30-102(b). Additionally, due process concerns may toll the statute of
limitations for seeking post-conviction relief. The Tennessee Supreme Court has stated:

       [B]efore a state may terminate a claim for failure to comply with procedural
       requirements such as statutes of limitations, due process requires that potential
       litigants be provided an opportunity for the presentation of claims at a
       meaningful time and in a meaningful manner.

Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992) (citing Logan v. Zimmerman Brush Co.,
455 U.S. 422, 437 (1982)). However, the Post-Conviction Procedure Act of 1995
“contemplates the filing of only one (1) petition for post-conviction relief,” and states that
“[i]f a prior petition has been filed which was resolved on the merits by a court of competent
jurisdiction, any second or subsequent petition shall be summarily dismissed.” Tenn. Code
Ann. § 40-30-102(c).

       Here, the petitioner filed his second post-conviction petition on July 6, 2012,
approximately thirteen years after the Tennessee Supreme Court denied review on direct
appeal. The petition is untimely by twelve years, and alleges none of the grounds under
section 40-30-102(b) that would allow consideration of the petition despite the late filing.
Additionally, this Court advised the petitioner of his counsel’s withdrawal and the time
requirements for filing a Rule 11 application to the Tennessee Supreme Court, yet the
petitioner still failed to meet the requirements. Cf. Williams v. State, 44 S.W.3d 464 (Tenn.
2001) (holding that due process concerns may toll the statute of limitations where attorney
misrepresentations prevented the petitioner from filing an application for permission to
appeal to the Tennessee Supreme Court on direct appeal).

        The petitioner asserts that he is entitled to a delayed appeal due to ineffective
assistance of counsel during his original post-conviction proceeding, which prevented him
from perfecting a Rule 11 application for permission to appeal to the Tennessee Supreme
Court. However, even if we take petitioner’s claim as true, considered in the light most
favorable to the petitioner, Tenn. Sup. Ct. R. 28, § 2(H), the petitioner is not entitled to relief.
Although Tennessee has established a statutory right to post-conviction counsel, Tenn. Code
Ann. § 40-20-107(b)(1) (2013), Tennessee courts have long held that there is no right to
effective assistance of post-conviction counsel. See Stokes v. State, 146 S.W.3d 56, 60
(Tenn. 2004) (“[B]ecause there is no constitutional right to counsel in post-conviction
proceedings . . . ‘there is no constitutional right to effective assistance of counsel in post-
conviction proceedings.’”) (quoting House v. State, 911 S.W.3d 705, 712 (Tenn. 1995)).
As such, a claim of ineffective assistance of post-conviction counsel “cannot provide an
excuse for a defendant’s failure to timely file a Rule 11 application.” Stokes, 146 S.W.3d
at 60. Under these circumstances, the petitioner is not entitled to relief.

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        The petitioner further contends that the post-conviction court improperly dismissed
his petition without an evidentiary hearing in violation of his due process rights. However,
in the post-conviction setting, all that is required by due process “is the opportunity to be
heard at a meaningful time and in a meaningful manner.” Id. at 61 (quoting Mathews v.
Eldridge, 424 U.S. 319, 333 (1976)). In the present case, the petitioner was afforded an
evidentiary hearing by the trial court and first-tier review by this Court for his first petition
for post-conviction relief. Because his prior petition was resolved on the merits by a court
of competent jurisdiction, summary dismissal of the second petition was appropriate. See
Tenn. Code Ann. § 40-30-102(c). Accordingly, the petitioner is not entitled to relief.

                                       CONCLUSION

       Upon review, we affirm the judgment of the post-conviction court.

                                                     ___________________________________
                                                     CAMILLE R. McMULLEN, JUDGE




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