Opinion
No. M2004-00558-CCA-R3-PC.
Assigned on Briefs February 1, 2005.
Filed March 30, 2005.
Direct Appeal from the Criminal Court for Davidson County; No. 2000-B-1103; Seth Norman, Judge.
Judgment of the Criminal Court Affirmed.
David Lackey, Only, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Jennifer L. Bledsoe, Assistant Attorney General; Victor S. Johnson, III, District Attorney General; and Dan Hamm, Assistant District Attorney General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the court, in which John Everett Williams and Robert W. Wedemeyer, JJ., joined.
OPINION
The petitioner appeals the summary dismissal of his petition for post-conviction relief, arguing that he should have been appointed post-conviction counsel and given an evidentiary hearing. Following our review, we affirm the dismissal of the petition, as it was untimely filed.
FACTS
Based on his participation in the 1998 murder of Nashville resident Billy Wiggins, the petitioner, David Lackey, was convicted by a Davidson County jury of one count of premeditated murder, one count of felony murder during the perpetration of a theft, and one count of misdemeanor theft. After merging the two murder convictions, the trial court sentenced the petitioner to an effective sentence of life imprisonment. This court affirmed the convictions on direct appeal. See State v. David Allen Lackey, No. M2001-01043-CCA-R3-CD, 2002 WL 31007442, at *1 (Tenn.Crim.App. Sept. 6, 2002).
On October 31, 2003, the petitioner filed a pro se "Petition for Relief from Conviction or Sentence" in which he raised numerous grounds for relief and requested that counsel be appointed, but failed to provide any specific factual allegations in support of his claims. Accordingly, on November 5, 2003, the post-conviction court entered an order granting the petitioner thirty days to amend his petition to include specific allegations of fact on which his claims for relief were based. The petitioner responded with a pro se "Amendment to Petition for Post-Conviction Relief," filed on December 4, 2003, in which he asserted various general instances of trial counsel ineffectiveness, prosecutorial misconduct, and trial court error. He also filed a "Motion for Appointment of Counsel" on December 4, 2003.
In an opinion filed on January 12, 2004, the post-conviction court denied the petition, finding that the petitioner "again lists vague and ambiguous claims without proper support consisting of specific allegations," the court noting also that neither the original petition nor the amended petition was verified under oath as required by statute.
Thereafter, the petitioner filed a pro se notice of appeal to this court.
ANALYSIS
Under the Post-Conviction Procedure Act of 1995, a claim 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 or, if no appeal is taken, within one (1) year of the date on which the judgment became final, or consideration of such petition shall be barred." Tenn. Code Ann. § 40-30-102(a) (2003). The 1995 Act contains a specific anti-tolling provision:
The statute of limitations shall not be tolled for any reason, including any tolling or saving provision otherwise available at law or equity. Time 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 such an action and is a condition upon its exercise. Except as specifically provided in subsections (b) and (c), the right to file a petition for post-conviction relief or a motion to reopen under this chapter shall be extinguished upon the expiration of the limitations period.
Id. The legislature has set forth three narrow exceptions which would permit consideration of an otherwise untimely petition: (1) retrospective application of a new constitutional right established by a ruling of the highest appellate court of the state or the United States Supreme Court; (2) new scientific evidence establishing that the petitioner is actually innocent; or (3) a previous conviction that was not a guilty plea that was used to enhance the sentence from which relief is being sought has been held to be invalid. See id. § 40-30-102(b).
Additionally, the state supreme court has determined that due process may, in certain circumstances, require tolling the statute of limitations. See Sample v. State, 82 S.W.3d 267, 273 (Tenn. 2002) (statute of limitations tolled due to a late arising suppression of exculpatory evidence claim); Williams v. State, 44 S.W.3d 464, 477 (Tenn. 2001) (misrepresentation by attorney as to continuing representation, rather than mere attorney negligence, possibly tolled the statute of limitations);Seals v. State, 23 S.W.3d 272, 278-79 (Tenn. 2000) (statute of limitations tolled due to mental incompetence of petitioner);Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995) (grounds for relief arose after the statute of limitations normally would have run); Burford v. State, 845 S.W.2d 204, 206 (Tenn. 1992) (petitioner unable to file post-conviction claim in one county until conviction in another county had been set aside).
In his initial petition, the petitioner stated that an appeal of our opinion affirming his convictions was denied by our supreme court on November 4, 2002. Additionally, in its appellate brief, the State avers that application for permission to appeal was denied by our supreme court on November 12, 2002. The petition, as previously stated, was filed on October 31, 2003, and the post-conviction court in its original order stated that the petition was timely filed. Since the record on appeal does not contain a response by the State to the original petition, we cannot determine whether the statute of limitations was raised as a defense in the post-conviction court.
As we will explain, the petition, filed on October 31, 2003, was untimely because it was filed after expiration of the one-year statute of limitations. Our opinion affirming the defendant's convictions was filed on September 6, 2002. No Rule 11 application for permission to appeal to the supreme court was filed in this case. The last action taken by either party during the direct appeal was a Supreme Court Rule 14 motion to withdraw as counsel, filed by the petitioner's counsel on September 10, 2002, and granted on September 13, 2002. The mandate of this court, issued on November 12, 2002, was not the final action of this court for purposes of the post-conviction act. See Edward Pinchon v. State, No. M2003-00816-CCA-R3-PC, 2004 WL 193055, at *4 (Tenn.Crim.App. Jan. 28, 2004), perm. to appeal denied (Tenn. May 10, 2004); Kenneth P. Bondurant v. State, No. M2000-02287-CCA-R3-PC, 2002 WL 31487529 (Tenn.Crim.App. Oct. 30, 2002); see also Tenn. R. App. P. 42. Therefore, the post-conviction statute of limitations began to run at the date of the final action of the "highest state appellate court to which an appeal [was] taken," which was the date our direct appeal opinion was filed, or September 6, 2002. Tenn. Code Ann. § 40-30-102(a).
It is unquestioned that "[n]o court shall have jurisdiction" to consider a time-barred petition unless it falls within one of the enumerated statutory exceptions, see Tenn. Code Ann. § 40-30-102(b) (2003), or is mandated by due process. "Given the post-conviction statute's language conferring jurisdictional import to the timely filing of a petition, it is essential that the question of timeliness be resolved before any adjudication on the merits of the petitioner's claims may properly occur."Antonio L. Saulsberry v. State, No. W2002-02538-CCA-R3-PC, 2004 WL 239767, at * 1 (Tenn.Crim.App. Feb. 9, 2004) (citing Tenn. Code Ann. § 40-30-102(b) (2003)), perm. to appeal denied (Tenn. June 1, 2004). An untimely petition is subject to summary dismissal. See Tenn. Code Ann. § 40-30-106(b) (2003) ("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.") (emphasis added). In the present case, just as in Saulsberry, "[t]he fact that the lower court did not take that action [dismissal based on the statute of limitations] does not allow the petitioner, at this juncture, to avoid operation of the statute of limitations. As such, his appeal must be dismissed due to the untimeliness of the underlying petition. This court lacks jurisdiction to adjudicate the case." 2004 WL 239767, at *2. Additionally, from our review of the original and amended petitions and the briefs on appeal, we cannot find any facts which would provide the petitioner relief from the statute of limitations. Id.
CONCLUSION
Due to the untimeliness of the petition, neither the post-conviction court nor this court possesses jurisdiction to consider it. We affirm the dismissal.