IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

October 2, 2012 Session in Nashville

ARTIS WHITEHEAD v. STATE OF TENNESSEE

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Shelby County

No. 03-04835 James C. Beasley, Jr., Judge

No. W2010-00784-SC-R11-PC - Filed March 21, 2013

JANICE M. HOLDER, dissenting

I respectfully dissent from the majority’s conclusion that due process requires tolling

of Mr. Whitehead’s post-conviction statute of limitations based on attorney abandonment.

As the majority noted, with three statutory exceptions, the explicit language of

Tennessee Code Annotated section 40-30-102(a) prohibits tolling, in law or equity, of the

post-conviction statute of limitations. This Court has recognized, however, that the strict

application of the statute of limitations could violate due process by denying a defendant a

reasonable opportunity to bring a post-conviction claim. See, e.g. Williams v. State, 44

S.W.3d 464, 471 (Tenn. 2001) (tolling warranted in certain instances of attorney misconduct

but not for attorney negligence); Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000) (tolling

warranted when petitioner failed to file a timely petition due to mental incompetence);

Burford v. State, 845 S.W.2d 204, 209 (Tenn. 1992) (tolling appropriate when the prior

convictions used to enhance petitioner’s sentence were overturned after the statute of

limitations had expired).

Today the majority adopts the two-pronged analysis of Holland v. Florida, U.S. ,

130 S. Ct. 2549 (2010), to expand our due process tolling jurisprudence to include a

petitioner’s failure to file a timely post-conviction petition due to an “extraordinary

circumstance” outside his control. I am unable to agree to the expansion of our due process

tolling exceptions based on the facts of this case.

Nor do I agree that the test adopted by the majority provides relief to Mr. Whitehead.

Applying the first Holland prong, it is not clear that Mr. Whitehead diligently pursued his

claim. The trial court determined, correctly in my opinion, that Mr. Whitehead had two

months from his receipt of the August 3, 2007 letter to prepare his pro se post-conviction
petition. The prison law library afforded him the opportunity to research the law applicable

to post-conviction relief, and Mr. Whitehead testified that he began researching the law after

receiving his former attorney’s letter.

The majority suggests that Mr. Whitehead could not have prepared a meaningful

petition until he received his former attorney’s file. Although the record does not reflect

what, if anything, his attorney had previously provided to him, Mr. Whitehead possessed

sufficient factual information to timely file a pro se petition even in the absence of his files.

See Tenn. Sup. Ct. R. 28, § 6 (B)(4)(b) (“No pro se petition shall be dismissed for failure to

follow the prescribed form until the court has given petitioner a reasonable opportunity to

amend the petition with the assistance of counsel.”).

As to the second Holland prong, Mr. Whitehead has not proven the existence of an

extraordinary circumstance nor that an extraordinary circumstance prevented the timely filing

of his petition. The focus of the inquiry in Holland was whether attorney abandonment could

constitute an extraordinary circumstance. The majority concludes in this case that the

collective failures of Mr. Whitehead’s former attorney are equivalent to the types of attorney

abandonment described in Holland and Maples v. Thomas, U.S. , 132 S. Ct. 912 (2012),

and thus constitute an extraordinary circumstance. I disagree.

The facts here are not analogous to the attorney abandonment described in Holland

and Maples. The petitioners in Holland and Maples were not only the victims of attorney

mistakes and communication failures, but each petitioner also erroneously believed his

attorney was pursuing his legal matter on his behalf. In contrast, Mr. Whitehead was given

an incorrect date for filing a timely petition and was delayed in receiving files from his

former attorney. Mr. Whitehead never operated under the misconception that the pursuit of

post-conviction relief was not his responsibility or that his former appellate attorney was

pursuing his post-conviction claim.

The trial court determined that the attorney-client relationship between Mr. Whitehead

and his appellate counsel terminated when the United States Supreme Court denied his writ

of certiorari on March 5, 2008. The trial court found that:

In this case Mr. Whitehead knew that he no longer had counsel.

Mr. Whitehead knew that it was on him from the time that the

Supreme Court of the United States denied cert, at least at that

point he knew he no longer had [appellate counsel] as his

lawyer. So whatever occurred after that was up to him. . . . if I

accept Mr. Whitehead’s statement that he knew nothing about

post-convictions until he got that letter in August, he still had

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time because he testified that as soon as he read that word “postconviction” he wanted to find out what it was and goes to the

library and he starts reading up on it.

The majority does not conclude that the evidence preponderates against the trial court’s

factual findings. Giving due deference to those findings, Mr. Whitehead knew that his

former counsel’s representation ended when the United States Supreme Court denied

certiorari. Any negligence attributable to Mr. Whitehead’s former counsel occurred after her

representation of him ended. Under these circumstances, I cannot find his former attorney’s

negligence to have constituted abandonment.

For a number of years we have applied the test established in Burford and found due

process tolling warranted in extremely limited circumstances. The majority concedes that

“[n]one of [appellate counsel’s] failures, standing alone, would be sufficient” to toll the

statute of limitations under our prior case law. Although Mr. Whitehead’s situation is

unfortunate, the cumulative negligent acts of his former attorney do not constitute attorney

abandonment or an extraordinary circumstance and do not fall within our narrowly carved

due process tolling exceptions. I find no reason to adopt a new test or to add attorney

abandonment as a new ground for due process tolling under the facts of this case. Therefore,

I respectfully dissent.

_________________________________

JANICE M. HOLDER, JUSTICE

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