IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 10, 2002

MELVIN JOHNSON v. STATE OF TENNESSEE

 Direct Appeal from the Criminal Court for Shelby County

No. P-26159 J.C. McLin, Judge

No. W2002-00904-CCA-R3-PC - Filed October 15, 2002

The Shelby County Criminal Court dismissed the petition for post-conviction relief filed by the

petitioner, Melvin Johnson, as untimely under the one-year statute of limitations. In this appeal, the

sole issue before this court is whether the petitioner’s allegation that he was housed in a therapeutic

community with limited access to legal information tolls the statute of limitations. Upon review of

the record, we affirm the judgment of the trial court.

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

JOE G. RILEY, J., delivered the opinion of the court, in which JOSEPH M. TIPTON and DAVID G.

HAYES, JJ., joined.

James E. Thomas, Memphis, Tennessee, for the appellant, Melvin Johnson.

Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr., Assistant Attorney General;

William L. Gibbons, District Attorney General; and Raymond J. Lepone, Assistant District Attorney

General, for the appellee, State of Tennessee.

OPINION

On October 20, 2000, the petitioner, Melvin Johnson, pled guilty to attempted first degree

murder and was sentenced to fifteen years in the Department of Correction. On February 15, 2002,

the petitioner, acting pro se, filed a petition for post-conviction relief, alleging ineffective assistance

of counsel and an involuntary guilty plea. He noted in his petition that he was filing beyond the oneyear statute of limitations because he was housed in a “therapeutic community” with “limited access

to legal assistance and no law books.” The trial court dismissed the petition as untimely under the

one-year statute of limitations. This appeal followed.

The petitioner contends that due to his segregation from the general prison population, he did

not have access to adequate legal materials and adequate legal assistance, thus violating his
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constitutional right to access to the courts. The petitioner further contends the one-year statute of

limitations should be tolled as a result. We disagree.

Under the current Post-Conviction Procedure Act, all petitions 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. § 40-30-202(a). 

The statute further provides that a court may consider a petition filed outside the one-year

period if (1) a new constitutional right has been recognized; (2) the petitioner’s innocence has been

established by new scientific evidence; or (3) a previous conviction that enhanced the petitioner’s

sentence has been held to be invalid. Tenn. Code Ann. § 40-30-202(b)(1)–(3). 

In addition to the exceptions expressed in the statute, the Tennessee Supreme Court has held

a court may consider an otherwise untimely petition if the application of the statute of limitations

would be a denial of due process. Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992). Thus, a

mentally incompetent petitioner is entitled to tolling relief during the period of incompetency. Seals

v. State, 23 S.W.3d 272, 279 (Tenn. 2000).

In the present action, the plea and sentence were entered in October 2000. The petitioner did

not file a petition for post-conviction relief until February 15, 2002, well over one year after final

judgment. 

The petitioner asserts that the statute of limitations should be tolled because he lacked the

adequate legal resources and assistance required to prepare the petition as a result of his incarceration

in a segregated area of the state penitentiary. Neither the due process exception nor the statutory

exceptions for untimely filing listed in Tennessee Code Annotated section 40-30-202(b) apply in this

case. See William Lynn Johnson v. State, No. 02C01-9605-CR-00136, 1997 Tenn. Crim. App.

LEXIS 555, at **8-9 (Tenn. Crim. App. June 10, 1997, at Jackson), perm. to app. denied (Tenn.

Sept. 15, 1997) (holding that incarceration in a federal prison without access to Tennessee legal

resources does not fall within the statutory exceptions nor the Burford exception); Freddie Mans v.

State, No. 02C01-9605-CR-00147, 1997 Tenn. Crim. App. LEXIS 548, at **9-11 (Tenn. Crim. App.

June 9, 1997, at Jackson), perm. to app. denied (Tenn. Dec. 8, 1997).

In accordance with prevailing case law, we hold the petitioner’s lack of adequate legal

resources does not toll the one-year statute of limitations. We affirm the trial court’s dismissal of

the petition for post-conviction relief.

___________________________________ 

JOE G. RILEY, JUDGE