IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs December 15, 2004

MICHAEL BRAXTON v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 97-B-1350 Steve Dozier, Judge

No. M2004-00791-CCA-R3-PC - Filed May 31, 2005

The petitioner, Michael Braxton, was convicted by a jury in the Davidson County Criminal Court

of aggravated rape and aggravated assault. He received a total effective sentence of twenty-three

years incarceration in the Tennessee Department of Correction. Subsequently, the petitioner filed

a petition for post-conviction relief, which petition the post-conviction court summarily dismissed

as being untimely. The petitioner appeals the dismissal, arguing that his petition was not barred by

the statute of limitations. Upon our review of the record and the parties’ briefs, we reverse the

judgment of the post-conviction court and remand for a hearing on the timeliness of the petitioner’s

petition.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Reversed and

Remanded.

NORMA MCGEE OGLE, J., delivered the opinion of the court, in which JERRY L. SMITH and JOHN

EVERETT WILLIAMS, JJ., joined.

Michael Braxton, Only, Tennessee, Pro Se.

Paul G. Summers, Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;

Victor S. Johnson, III, District Attorney General; and Pamela Anderson, Assistant District Attorney

General, for the appellee, State of Tennessee

OPINION

I. Factual Background

On March 24, 1998, the petitioner was convicted of aggravated rape and aggravated assault.

The petitioner, then represented by counsel, filed a timely notice of appeal. This court affirmed the

convictions on direct appeal. See State v. Michael Braxton, No. M1998-00255-CCA-R3-CD, 1999

WL 1072866, at *1 (Tenn. Crim. App. at Nashville, Nov. 29, 1999). On January 28, 2000, the
 This motion has no bearing on the instant case.

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petitioner, proceeding pro se, filed an application for permission to appeal to our supreme court. On

June 26, 2000, our supreme court denied permission to appeal. 

On February 14, 2003, the petitioner sent a letter by certified mail to the supreme court clerk

inquiring about the status of his application for permission to appeal. A copy of this letter was

apparently forwarded to the petitioner’s trial counsel by the supreme court clerk. On March 3, 2003,

the petitioner’s trial counsel sent the petitioner a letter. Therein, trial counsel explained:

I have checked my file. It appears that I did receive a copy of

the Supreme Court’s Order dated June 26, 2000. I am enclosing a

copy of that also. . . . My file does not include any letter from me to

you regarding this Order. I have concluded that, since I was not

representing you in connection with your Application for Permission

to Appeal to the Supreme Court, I did not send you a copy of the

Order. Frankly, while I cannot remember exactly what I thought at

the time, I believe that I must have assumed that the Court would

send you a copy of the Order since you filed the Application pro se.

Thereafter, on February 24, 2004, the petitioner filed three separate documents in the

Davidson County Criminal Court. First, the petitioner filed a “Motion to Amend Judgment of

Conviction,” wherein the petitioner requested pretrial jail credits. Second, the petitioner filed a 1

“Motion to Toll the One (1) Year Statute of Limitation of the State Post Conviction Statute.” In this

motion, the petitioner alleged that following this court’s opinion on his direct appeal, he filed a pro

se application for permission to appeal to the supreme court. He further alleged that the supreme

court clerk failed to notify him that his application had been denied. The petitioner contended that

although his trial counsel had properly withdrawn following this court’s opinion, notice was sent by

the supreme court clerk to his former trial counsel, not to the petitioner. Counsel did not provide the

petitioner notice of the denial of his application for permission to appeal. Accordingly, the petitioner

argued that due to his failure to receive notice of the denial of his application for permission to

appeal, he did not timely file his petition for post-conviction relief. Finally, the petitioner filed a

petition for post-conviction relief, alleging numerous instances of ineffective assistance of counsel.

The post-conviction court summarily dismissed the petition without an evidentiary hearing,

finding that the petition was untimely. The court discounted the petitioner’s claim that he had not

received notice of the supreme court’s denial of his application for permission to appeal. The postconviction court noted, “The Court’s records indicate that the mandate from the Supreme Court was

sent to the Tennessee Department of Corrections. . . . Therefore, the Court is of the opinion that the

petition should be overruled and dismissed without a hearing.” The petitioner now appeals this

ruling.

II. Analysis
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We begin our analysis by noting that post-conviction “[r]elief under this part shall be granted

when the 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.” Tenn. Code

Ann. § 40-30-103 (2003). The Post-Conviction Procedure Act provides that

a person in custody under a sentence of a court of this state must

petition for post-conviction relief under this part within one (1) year

of the date of the final action of the highest state appellate court to

which an appeal is taken . . . or consideration of such petition shall be

barred. . . . Time is of the essence of the right to file a petition for

post-conviction relief . . . 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 . . . shall be

extinguished upon the expiration of the limitations period.

Tenn. Code Ann. § 40-30-102(a) (2003). 

However, Tennessee courts “have previously recognized that in 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). Notably, our supreme court has “emphasized that a post-conviction petitioner should

not be denied a reasonable opportunity to raise a claim due to another’s misconduct.” Sample v.

State, 82 S.W.3d 267, 277 (Tenn. 2002); see also Williams, 44 S.W.3d at 468.

We find that the factual scenario in the instant case is analogous to that presented in

Williams. In Williams, the petitioner filed a petition for post-conviction relief nine months after the

statute of limitations had expired, alleging that counsel failed to notify him of his intent to withdraw

after the petitioner’s convictions were affirmed on direct appeal by this court. 44 S.W.3d at 466 n.4.

Additionally, counsel failed to file an application for permission to appeal to the Tennessee Supreme

Court. Id. Our supreme court reversed the dismissal of the petition and granted the petitioner an

evidentiary hearing, noting that “the record indicates that [the petitioner] might have been denied the

opportunity to challenge his conviction in a timely manner through no fault of his own but because

of the possible misrepresentation of his counsel.” Id. at 468. The court stated, “If a defendant

erroneously believes that counsel is continuing to represent him or her, then the defendant is

essentially precluded from pursuing certain remedies independently.” Id. at 469. 

In this case, the petitioner contends that the supreme court clerk’s office failed to provide

notice as to when his application for permission to appeal to the supreme court had been denied.

Thus, he alleges that through no fault of his own, he was unaware of the date that his direct appeal

had concluded and the statute of limitation to file a post-conviction petition began to run. Id. at 469

(stating that “the Post Conviction Procedure Act clearly contemplates that a post-conviction petition

is appropriately filed only after the direct appeal process had concluded”); see also Eric Wright v.
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State, No. W2001-00386-CCA-R3-PC, 2001 WL 1690194, at *2 (Tenn. Crim. App. at Jackson, Dec.

17, 2001). Importantly, we can find no evidence in the record before us to support the postconviction court’s finding “that the mandate from the Supreme Court was sent to the Tennessee

Department of Corrections.” Regardless, even if notice of the mandate had been sent to the

Tennessee Department of Correction, such would not constitute evidence that the petitioner received

notice. Therefore, we are constrained to reverse the post-conviction court’s summary denial of the

petition and remand for appointment of counsel and for an evidentiary hearing “to determine (1)

whether due process tolled the statute of limitations so as to give the [petitioner] a reasonable

opportunity after the expiration of the limitations period to present his claim in a meaningful time

and manner; and (2) if so, whether the [petitioner’s] filing of the post-conviction petition in

[February 2004] was within the reasonable opportunity afforded by the due process tolling.”

Williams, 44 S.W.3d at 471. 

III. Conclusion

Accordingly, we reverse the post-conviction court’s dismissal of the petitioner’s claim and

remand for further proceedings consistent with this opinion. 

___________________________________ 

NORMA McGEE OGLE, JUDGE