01/31/2017




        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                   Assigned on Briefs January 18, 2017 at Knoxville

             JAMES FLOYD THOMAS v. STATE OF TENNESSEE

                  Appeal from the Circuit Court for Bedford County
                   Nos. 17825 & 17839 Forest Durard, Jr., Judge


                              No. M2016-01630-CCA-R3-PC


The petitioner, James Floyd Thomas, appeals the denial of post-conviction relief from his
2014 Bedford County Circuit Court guilty-pleaded convictions of the promotion of
methamphetamine manufacture and initiation of the process to manufacture
methamphetamine, for which he received an effective sentence of 18 years. Because the
petitioner failed to file a timely petition for post-conviction relief, the post-conviction
court’s order is affirmed.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which D. KELLY
THOMAS, JR., and ROBERT H. MONTGOMERY, JR., JJ., joined.

Andrew Jackson Dearing, III, Assistant District Public Defender, for the appellant, James
Floyd Thomas.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant
Attorney General; Robert J. Carter, District Attorney General; and Michael D. Randles,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                          OPINION

                On June 16, 2014, the petitioner entered pleas of guilty to one count of the
promotion of methamphetamine manufacture in case number 17825 and to one count of
the initiation of the process to manufacture methamphetamine in case number 17839, in
exchange for respective four-year and 14-year sentences, to be served consecutively for a
total effective sentence of 18 years’ incarceration. On December 29, 2015, the petitioner
filed, pro se, a petition for post-conviction relief, alleging, inter alia, that he was deprived
of the effective assistance of counsel. In addition, the petitioner alleged that he had
attempted to file a previous petition for post-conviction relief but that the “prison through
[sic] my post[-]conviction [petition] away.” Following the appointment of counsel and
the amendment of the petition, the post-conviction court conducted an evidentiary
hearing on March 29, 2016, and entered an order denying the petition on May 2, 2016.
Before addressing the merits of the petition in its order, the post-conviction court made
the following findings:

                       Petitioner’s petition for post[-]conviction relief was
               filed in the office of the Bedford County Circuit Court on
               December 29, 2015. It appears no appellate activity was filed
               on [p]etitioner’s behalf regarding his above plea. There is no
               showing when the original petition was given to prison
               authorities by the [p]etitioner. Tenn. Sup. Ct. R. 28 § (2)(G).
               Petitioner avers in his pro se petition he had filed a previous
               petition which was lost by prison authorities but there is no
               proof as to when this may have occurred. Consequently, it
               does not appear the petition was timely filed within 12
               months after the finality of the judgments per T.C.A. § 40-30-
               102. . . .

                       In candor, the post-conviction court did not identify
               the statute of limitation problem upon its initial review of the
               petition but only saw the same when writing the opinion.
               Apparently, too, all other parties either missed or ignored the
               same.

               In this appeal, the petitioner reiterates his claim of ineffective assistance of
counsel, claiming that trial counsel performed deficiently by failing “to adequately
prepare, interview and call witnesses” and by failing “to set his case for trial.” The State
contends that the appeal should be dismissed because the petition was untimely filed and
that, in any event, the court did not err by denying 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
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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
                  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 principles require 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
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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 convictions via a post-
conviction petition filed in December 2015, some 17 months after the judgments became
final. Although the petitioner claimed in his pro-se petition that he had previously
attempted to file a petition for post-conviction relief, no proof of such a petition or the
date on which he attempted to file it appears in the record. 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 claim for
relief is not “later arising.”

              Accordingly, the post-conviction court lacked jurisdiction to consider the
post-conviction petition, and, as such, the denial of the petition is affirmed.


                                                  _________________________________
                                                  JAMES CURWOOD WITT, JR., JUDGE




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