Tolling of Post-Conviction Statute of Limitations

Hill v. State, No. E2022-01061-CCA-R3-PC, p. 5 (Tenn. Ct. Crim. App. Aug. 15, 2023). 

The first is whether the post- conviction petition was timely filed within the one-year statute of limitations. This question is one of law that we review under a de novo standard of review. See, e.g., McCoy v. State, No. W2019-00574-CCA-R3-PC, 2020 WL 1227304, at *1 (Tenn. Crim. App. Mar. 11, 2020), no perm. app. filed.

Montgomery v. State, No. M2022-00780-CCA-R3-PC, p. 4-5 (Tenn. Ct. Crim. App. Aug. 21, 2023). 

A court may consider an untimely petition for post-conviction relief if applying the statute of limitations would deny a petitioner due process. Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992). Due process, in the post-conviction context, requires that a petitioner be afforded an opportunity to present his or her claims “at a meaningful time and in a meaningful manner” before those claims are dismissed for failure to comply with the statute of limitations. Seals v. State, 23 S.W.3d 272, 277-78 (Tenn. 2000) (quoting Burford, 845 S.W.2d at 208). Whether due process requires tolling of the post-conviction statute of limitations is a mixed question of law and fact 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)). A post-conviction court’s findings of fact, however, are conclusive on appeal unless the evidence preponderates against them. Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006). The Tennessee Supreme Court has identified three circumstances in which due process requires tolling of the statute of limitations: (1) claims arising after the statute of limitations has expired; (2) claims based on mental incompetence that prevented the petitioner from complying with the statute of limitations; and (3) claims based on attorney misconduct. Whitehead, 402 S.W.3d at 623-24.

A post-conviction petitioner is entitled to due process tolling of the statute of limitations 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.” Bush v. State, 428 S.W.3d 1, 22 (Tenn. 2014) (citing Whitehead v. State, 402 S.W.3d 615, 631 (Tenn. 2013)). Pursuing one’s rights diligently “‘does not require a prisoner to undertake repeated exercises in futility or to exhaust every imaginable option, but rather to make reasonable efforts [to pursue his or her claim].’” Id. (quoting Whitehead, 402 S.W.3d at 631). Due process tolling “‘must be reserved for those rare instances where — due to circumstances external to the party’s own conduct — it would be unconscionable to enforce the limitation period against the party and gross injustice would result.’” Id. (quoting Whitehead, 402 S.W.3d at 631-32). “The question of whether the post-conviction statute of limitations should be tolled is a mixed question of law and fact that is . . . subject to de novo review.” Id. at 16 (citing Smith v. State, 357 S.W.3d 322, 355 (Tenn. 2011)); Whitehead, 402 S.W.3d at 621.

Thomas v. State, No. W2022-00887-CCA-R3-PC, p. 3-4 (Tenn. Ct. Crim. App. July 7, 2023). 

Post-conviction relief is available when a “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.” T.C.A. § 40-30-103 (2018). A petition 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 . . . .” T.C.A. § 40-30-102(a). Here, the one-year statute of limitations expired nine days before the petition was filed.

“[T]he right to file a petition for post-conviction relief . . . shall be extinguished upon the expiration of the limitations period.” T.C.A. § 40-30-102(a). “If it plainly appears from the face of the petition, any annexed exhibits or the prior proceedings in the case 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.” T.C.A. § 40-30-106(b). The Post- Conviction Procedure Act is explicit that the one-year statute of limitations “shall not be tolled for any reasons, including any tolling or saving provision otherwise available at law or equity.” T.C.A. § 40-30-102(a).

The Post-Conviction Procedure Act provides for only three narrow factual circumstances in which the statute of limitations may be tolled, none of which the Petitioner alleges apply to her case. See T.C.A. § 40-30-102(b). In addition to the statutory circumstances, our supreme court has held that due process principles may require tolling the statute of limitations. See Whitehead v. State, 402 S.W.3d 615, 622-23 (Tenn. 2013). “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.” Id. at 631 (citing Holland v. Florida, 560 U.S. 631, 649 (2010)).

Our supreme court has held that “it is incumbent upon a petitioner to include allegations of fact in the petition establishing either timely filing or tolling of the statutory period.” State v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001) (abrogated on other grounds by Reid ex rel. Martiniano v. State, 396 S.W.3d 478, 511-13 (Tenn. 2013)).

Morris v. State, No. M2022-00926-CCA-R3-PC, p. 8-9 (Tenn. Ct. Crim. App. June 9, 2023). 

A petitioner may seek post-conviction relief when a “conviction or sentence is void or voidable because of the abridgement of any right guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-103. A post- conviction petition must 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[.]” Id. § 40-30-102(a). If the petition is untimely, in most circumstances “consideration of the petition shall be barred.” Id.; see also id. § 40-30-106(b) (“If it plainly appears from the face of the petition . . . that the petition was not filed” within the one-year limitations period, “the judge shall enter an order dismissing the petition.”). “As a general rule, a trial court’s judgment becomes final thirty days after its entry unless a timely notice of appeal or specified post-trial motion is filed.” State v. Moore, 814 S.W.2d 381, 382 (Tenn. Crim. App. 1991) (citing Tenn. R. App. 4(a) and (c)).

The one-year limitations period may be tolled in limited circumstances. “The question of whether the post-conviction statute of limitations should be tolled is a mixed question of law and fact that is . . . subject to de novo review.” Bush v. State, 428 S.W.3d 1, 16 (Tenn. 2014) (citing Smith v. State, 357 S.W.3d 322, 355 (Tenn. 2011)). Tennessee Code Annotated section 40-30-102(b) provides three exceptions to the statute of limitations for petitions for post-conviction relief:

(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.

Tenn. Code Ann. § 40-30-102(b)(1)-(3).

Additionally, the statute of limitations may be tolled on due process grounds. “[I]n certain circumstances, strict application of the statute of limitations would deny a defendant a reasonable opportunity to bring a post-conviction claim and thus, would violate due process.” Williams v. State, 44 S.W.3d 464, 468 (Tenn. 2001). Thus, “[w]hen a petitioner fails to timely file a petition for post-conviction relief due to circumstances outside of his control, due process requires tolling of the statute of limitations.” Ugenio Dejesus Ruby- Ruiz v. State, No. M2017-00834-CCA-R3-PC. 2018 WL 1614054, at *2 (Tenn. Crim. App. Apr. 3, 2018) (“Ruby-Ruiz”) (citing Williams, 44 S.W.3d at 468-69). “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.” State v. Whitehead, 402 S.W.615, 631 (Tenn. 2013) (citing Holland v. Florida, 560 U.S. 631, 648 (2012)). “This rule applies to all due process tolling claims, not just those that concern alleged attorney misconduct.” Bush, 428 S.W.3d at 22. The post-conviction petitioner “bears the burden of pleading and proving that the statute of limitations should be tolled on due process grounds.” Raymond Andrew Herbst v. State, No. M2014-01918-CCA-R3-PC, 2015 WL 4575140, at *3 (Tenn. Crim. App. July 30, 2015) (citing Tenn. Sup. Ct. R. 28, § 5(F)(4)).