        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                  Assigned on Briefs August 19, 2015 at Knoxville

              ADRIAN WILKERSON v. STATE OF TENNESSEE

                Appeal from the Criminal Court for Davidson County
                     No. 95-B-856   Monte D. Watkins, Judge


              No. M2015-00420-CCA-R3-PC – Filed September 8, 2015


The petitioner, Adrian Wilkerson, appeals pro se from the summary dismissal of his 2014
petition for post-conviction relief, which challenged his 1996 convictions of first degree
felony murder, especially aggravated robbery, and theft of property valued at $1000 or
more but less than $10,000. Because the petition was filed more than a decade beyond
the applicable statute of limitations, because this is the petitioner‟s second successive
petition for post-conviction relief, and because the petitioner failed to either allege or
prove a statutory exception to the timely filing or a due process tolling of the statute of
limitations, we affirm the judgment of the post-conviction court.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN
EVERETT WILLIAMS and TIMOTHY L. EASTER, JJ., joined.

Adrian Wilkerson, Wartburg, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Assistant Attorney
General; Victor S. Johnson III, District Attorney General; and Amy Hunter, Assistant
District Attorney General, for the appellee, State of Tennessee.

                                       OPINION

              In 1996, a Davidson County Criminal Court jury convicted the petitioner of
first degree felony murder, especially aggravated robbery, and theft of property valued
over $1000 but less than $10,000, and the trial court imposed an effective sentence of life
plus 29 years in prison. This court affirmed the convictions on direct appeal but modified
the sentence to life plus 25 years. State v. Adrian Wilkerson and Steven Murphy, No.
01C01-9610-CR-00419, slip op. at 30 (Tenn. Crim. App., Nashville, Aug. 26, 1998).
The petitioner then filed a petition for post-conviction relief, alleging ineffective
assistance of counsel. Following a hearing, the post-conviction court denied the petition,
and this court affirmed the denial. Adrian Wilkerson v. State, No. M2001-02295-CCA-
R3-PC, slip op. at 1 (Tenn. Crim. App., Nashville, July 16, 2002), perm. app. denied
(Tenn. Dec. 9, 2002).

               The petitioner next sought habeas corpus relief, which was denied by the
habeas corpus court, and this court affirmed the denial by memorandum opinion pursuant
to Rule 20 of the Rules of the Court of Criminal Appeals. Adrian Wilkerson v. State, No.
M2003-01385-CCA-R3-HC (Tenn. Crim. App., Nashville, Nov. 12, 2004), perm. app.
denied (Tenn. Feb. 28, 2005). The petitioner then filed a second petition for writ of
habeas corpus, which was denied by the habeas corpus court and again affirmed by this
court by memorandum opinion. Adrian Wilkerson v. Howard Carlton, Warden, No.
E2007-00382-CCA-R3-HC (Tenn. Crim. App., Knoxville, Mar. 26, 2008). The
petitioner sought habeas corpus relief on a third occasion, claiming that judgments had
not been entered for the convictions of especially aggravated robbery and theft. The
State filed a motion to dismiss the petition and attached to its motion copies of the
petitioner‟s judgments. The habeas corpus court then summarily dismissed the petition
and forwarded the case to the trial court for correction of clerical errors in the judgments.
This court, once again, affirmed the decision. Adrian Wilkerson v. Howard Carlton,
Warden, No. E2007-02453-CCA-R3-HC (Tenn. Crim. App., Knoxville, Nov. 20, 2008).

              On August 18, 2014, the petitioner filed a “Petition for Relief from
Conviction or Sentence Pursuant to TCA 40-30-117a(1)(4).” On October 9, 2014, the
post-conviction court summarily dismissed the petition, deeming it time barred.

               On appeal, the petitioner challenges the summary dismissal of his 2014
petition, arguing that the ineffective assistance of post-conviction counsel “excuse[d] the
[p]etitioner[‟s] procedural default of a claim that his trial counsel was constitutionally
ineffective[,] thus, denying [p]etitioner due process.” The State responds that the appeal
was untimely filed and that, in any event, the petition at issue was not timely filed.

               We must first address the petitioner‟s failure to timely file his notice of
appeal. In its brief before this court, the State correctly notes that the petitioner‟s
February 26, 2015 notice of appeal from the order dismissing his post-conviction petition
was not filed within 30 days of the entry of the challenged judgment and is therefore
untimely. See Tenn. R. App. P. 4(a). Although the petitioner states in his notice of
appeal that he “did not receive the Court Order dated 10-9-14 until February 10, 2015,”
he failed to request that we waive the untimely filing. However, in view of the
petitioner‟s status as an incarcerated, pro se litigant, we will waive the timely filing
requirement in the interest of justice. See id.

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             The petitioner frames his issue as one pursuant to Tennessee Code
Annotated section 40-30-117, which addresses motions to reopen post-conviction
proceedings:

              (a) A petitioner may file a motion in the trial court to
           reopen the first post-conviction petition only if the following
           applies:

              (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

              (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.

              (b) The motion must set out the factual basis underlying its
           claims and must be supported by affidavit. The factual
           information set out in the affidavit shall be limited to
           information which, if offered at an evidentiary hearing, would
           be admissible through the testimony of the affiant under the

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               rules of evidence. The motion shall be denied unless the
               factual allegations, if true, meet the requirements of
               subsection (a). If the court grants the motion, the procedure,
               relief and appellate provisions of this part shall apply.

Id. However, the instant petition does not satisfy any of the statutory criteria to reopen.
We will thus examine the petition as one for post-conviction relief.

                “[A] person in custody . . . must petition for post-conviction relief . . .
within one (1) year of the date of the final action of the highest state appellate court to
which an appeal is taken.” T.C.A. § 40-30-102(a). “If it plainly appears from the face of
the petition, . . . 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. The order shall
state the reason for the dismissal and the facts requiring dismissal.” Id. § 40-30-106(b).
The statute of limitations for filing a post-conviction petition is jurisdictional. See id. §
40-30-102(b) (“No court shall have jurisdiction to consider a petition filed after the
expiration of the limitations period unless [certain statutory prerequisites are met].”). Our
supreme court has held that “the one-year statutory period is an element of the right to
file a post-conviction petition and that it is not an affirmative defense that must be
asserted by the State.” State v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001). Thus, “it is
incumbent upon a petitioner to include allegations of fact in the petition establishing
either timely filing or tolling of the statutory period,” and the “[f]ailure to include
sufficient factual allegations of either compliance with the statute or [circumstances]
requiring tolling will result in dismissal.” Id.

             A petition for post-conviction relief filed outside the one-year statute of
limitations may nevertheless be considered if its allegations fall within three rather
narrow exceptions:


               (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. Such
                   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

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                  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 such 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.

T.C.A. § 40-30-102(b)(1)-(3). Additionally, due process principles may, in very limited
circumstances, require tolling of the post-conviction statute of limitations. See generally
Seals v. State, 23 S.W.3d 272 (Tenn. 2000); Burford v. State, 845 S.W.2d 204 (Tenn.
1992). To determine whether due process requires tolling of the statute of limitations, we
must determine “when the limitations period would normally have begun to run”;
“whether the grounds for relief actually arose after the limitations period would normally
have commenced”; and “if the grounds are „later arising,‟ determine if, under the facts of
the case, a strict application of the limitations period would effectively deny the petitioner
a reasonable opportunity to present the claim.” Sands v. State, 903 S.W.2d 297, 301
(Tenn. 1995).

               In the instant case, the petitioner challenged his 1996 convictions via a
second post-conviction petition filed in 2014, more than a decade after the judgments
became final. The statutory grounds for the tolling of the statute of limitations are not
applicable. Moreover, due process principles do not mandate the tolling of the statute of
limitations because the petitioner‟s convoluted claim for relief is not “later arising.” In
addition, the instant petition is the second petition for post-conviction relief filed by the
petitioner. “In no event may more than one (1) petition for post-conviction relief be filed
attacking a single judgment. If 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.” T.C.A. § 40-30-102(c). Finally, the petitioner utterly failed to
cite any law in the single-sentence, declaratory argument contained in his brief and has
thus waived review by this court. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are
not supported by argument, citation to authorities, or appropriate references to the record
will be treated as waived in this court.”).

               For all of the foregoing reasons, the judgment of the post-conviction court
is affirmed.
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       _________________________________
      JAMES CURWOOD WITT, JR., JUDGE




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