IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs July 25, 2017, at Knoxville 

MONTERIOUS BELL v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 11-02524 James C. Beasley, Jr., Judge

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No. W2016-01709-CCA-R3-PC

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The petitioner, Monterious Bell, appeals the dismissal of his post-conviction petition, 

arguing the post-conviction court erred in dismissing the petition as time-barred.

Following our review, we conclude the petition was timely filed. The judgment of the 

post-conviction court is reversed and the matter remanded for consideration of the postconviction petition in accord with the Post-Conviction Procedure Act. 

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

Case Remanded

J. ROSS DYER, J., delivered the opinion of the court, in which ALAN E. GLENN and 

ROBERT H. MONTGOMERY, JR., JJ., joined.

Monterious Bell, Henning, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Assistant 

Attorney General; Amy P. Weirich, District Attorney General; and Karen Cook, Assistant 

District Attorney General, for the appellee, State of Tennessee.

OPINION

FACTS

This post-conviction appeal stems from the petitioner’s participation in a home 

invasion on November 1, 2010. The petitioner hired trial counsel, and proceeded to trial 

where he was convicted of aggravated burglary and sentenced to fifteen years in 

confinement. Subsequent to trial, the trial court ordered trial counsel to represent the 

petitioner on direct appeal where counsel challenged the sufficiency of the evidence 

12/05/2017
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supporting the petitioner’s conviction for aggravated burglary. This Court summarized 

the underlying facts leading to the petitioner’s conviction as follows:

The State’s proof at trial showed that on the morning of November 

1, 2010, Odella McKinnon was at home preparing to take a bath when she 

heard the doorbell and then “intense beating” on her iron front door. Ms. 

McKinnon immediately began dressing. As she left the bathroom to open 

the front door, she heard someone “beating” on the back door, and she 

noticed a tan Toyota automobile backed into her driveway. Before she 

could react, she heard “cracking and breaking” on the back door. Ms. 

McKinnon then proceeded directly to her bedroom and retrieved her 

handgun. As Ms. McKinnon approached the back door, the door “flew 

open” and two men rushed inside. Ms. McKinnon fired a single gunshot, 

and the two men turned and fled. Ms. McKinnon testified that she got “a 

good quick look” at the two men, and she stated that she had no trouble 

seeing their faces because it was “a sunny day.” At trial, Ms. McKinnon 

described the first man, later identified as the defendant, as having light 

skin and standing between five feet, eight inches, and five feet, ten inches 

in height, and she described the second man as heavier and bald with darker 

skin.

Ms. McKinnon called 9-1-1, and Memphis Police Department 

(“MPD”) Officer Martrell Boswell arrived at the scene two to three minutes 

after receiving the call from dispatch. Upon his arrival, Officer Boswell 

observed a black male, the defendant, standing by the driver’s door of the 

tan Toyota parked in Ms. McKinnon’s driveway. When the man noticed 

Officer Boswell’s unmarked police vehicle approaching, he “crossed the 

street and attempted to gently knock on the door” of a neighbor’s house. 

Officer Boswell then detained the defendant in the front yard of the 

neighbor’s house. After other officers arrived at Ms. McKinnon’s 

residence, Officer Boswell had the defendant stand outside Ms. 

McKinnon’s house, and Ms. McKinnon positively identified the defendant 

as the first of the two men who had just broken into her home. Ms. 

McKinnon admitted that, at the preliminary hearing, she initially 

misidentified the second male who had broken into her home, but, at trial, 

she was adamant that she had never misidentified the defendant.

MPD Officer Patricia Turnmire photographed, among other things, a 

footprint on the back door of Ms. McKinnon’s house and the bottoms of the 

shoes the defendant was wearing on November 1. Based on the ridges on 

the defendant’s shoes, Officer Turnmire believed the defendant’s shoes “to 
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be a match” to the footprint on Ms. McKinnon’s back door. Officer 

Boswell, a self-described “shoe connoisseur,” testified that the defendant 

was wearing Nike “Air Force 1” athletic shoes when he was taken into 

custody and that the treads on those shoes matched the footprint left on the 

back door. Officer Boswell testified that, when the defendant’s accomplice, 

Bryant Johnson, was arrested two hours later, he was wearing Nike “Air 

Max” shoes rather than “Air Force 1” shoes and that the treads on the two 

types of shoes were different.

Mr. Johnson testified that he had known the defendant since 

childhood and that, on November 1, the defendant picked him up in a tan 

Toyota Camry owned by the defendant’s girlfriend. After the two men 

smoked some marijuana, the defendant drove through Ms. McKinnon’s 

neighborhood looking for houses to burglarize. The defendant backed the 

Camry into Ms. McKinnon’s driveway, and the defendant knocked on the 

front door. When he received no answer, the men proceeded to the back 

door and knocked. The defendant then “kicked the door in.” Mr. Johnson 

entered the house just behind the defendant. Mr. Johnson “heard a shot,” 

and both men fled from the house. Mr. Johnson was arrested later that day, 

and he admitted that he was wearing Nike “Air Max” shoes at the time of 

his arrest. He recalled that the defendant was wearing Nike “Air Force 1” 

shoes at the time of the burglary.

With this evidence, the State rested. Following the trial court’s 

denial of the defendant’s motion for judgment of acquittal and 

a Momon colloquy, the defendant elected not to testify but did choose to 

present proof. MPD Officer Joshua Leslie testified that he interviewed Mr. 

Johnson following his arrest and that Mr. Johnson had stated, among other 

things, that his accomplice had “kicked in the door” at Ms. McKinnon’s 

residence. Officer Leslie also testified that Mr. Johnson’s shoes did not 

match the shoe print on Ms. McKinnon’s door.

Based on this evidence, the jury convicted the defendant as charged 

of aggravated burglary. Following a sentencing hearing, the trial court 

sentenced the defendant as a career offender and imposed a sentence of 15 

years’ incarceration, to be served consecutively to his sentences in a 

number of other cases.

State v. Monterious Bell, No. W2013-01592-CCA-R3-CD, 2015 WL 513591, at *1-2 

(Tenn. Crim. App. Feb. 5, 2015), perm. app. denied (Mar. 23, 2016) (internal footnotes 
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omitted). After our review, this Court upheld the rulings of the trial court, noting the 

evidence produced at trial was sufficient to support the petitioner’s conviction. Id. at *3.

The petitioner then made several procedural missteps after this Court affirmed his 

conviction on February 5, 2015. First, the petitioner failed to timely file an application 

for permission to appeal to the Tennessee Supreme Court. Absent an application to our 

supreme court, this Court issued the mandate on April 27, 2015. After the mandate 

issued, the petitioner filed a pro se application for permission to appeal and a motion for 

appointment of counsel on December 14, 2015. At the time, trial counsel was still the 

petitioner’s counsel of record, as he failed to withdraw from the petitioner’s case after 

this Court affirmed the petitioner’s conviction on direct appeal. On January 25, 2016, our

Supreme Court ordered trial counsel to show cause as to why the petitioner’s application

for permission to appeal should not be dismissed as untimely.

1

 According to trial 

counsel, the petitioner did not have any meritorious claims to pursue on which to support 

an application for permission to appeal and, therefore, he and the petitioner agreed not to 

seek further review.

2

 After the show cause hearing and despite its untimeliness, our

Supreme Court reviewed the petitioner’s application and denied the same on March 23, 

2016.

3

 Specifically, the Court’s order stated:

The application for permission to appeal filed by the defendant, 

Monterious Bell, is untimely. However, in the interest of justice, the timely 

filing requirements of Tenn. R. App. P 11(b) are waived. Upon 

consideration of the application for permission to appeal of Monterious Bell 

and the record before us, the application is denied. Counsel for Mr. Bell, 

Paul Springer, has filed a motion to withdraw as counsel. That motion is 

denied as moot. 

The Court, however, failed to issue a mandate ordering the same.

 

Subsequently, the petitioner filed a pro se petition for post-conviction relief on 

June 31, 2016.

4

 In his petition, the petitioner alleged trial counsel was ineffective in that 

he: (1) failed to adequately prepare for trial; (2) failed to “pursue any constitutional 

 

1

In the order, the Supreme Court stated the petitioner’s Rule 11 application was due no later than 

April 6, 2015. See Tenn. R. App. P. 11(b). The Court also denied the petitioner’s motion for 

appointment of counsel, noting the petitioner was still being represented by trial counsel.

2A transcript from the show cause hearing is absent from record before this Court.

3At the show cause hearing, trial counsel also moved to be dismissed from the petitioner’s case. 

The Supreme Court, however, denied trial counsel’s motion as moot.

4Though we recognize no such date exists, the petition is file stamped “June 31, 2016.” 

According to the certificate of service, the petitioner gave the petition to prison officials on June 27, 2016. 

See Tenn. R. Crim. P. 49(d).
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violations;” (3) failed to file “requested” motions and subpoenas on behalf of the 

petitioner; (4) failed to properly notify the petitioner that counsel would not file a Rule 11 

application or provide the petitioner with records in order for the petitioner to do the 

same; (5) failed to properly advise the petitioner of an initial offer made by the State and 

failed to advise the petitioner of the sentence the petitioner faced at trial if rejected; (6) 

failed to adequately represent the petitioner at the sentencing hearing; and (7) failed to 

preserve for appeal the trial court’s error of “placing undue weight on the [p]etitioner’s 

enhancement factors and totally disregard[ing] [the] [p]etitioner’s mitigating factors.” 

The petitioner also alleged he was abandoned by trial counsel, thus tolling his postconviction statute of limitations. The petitioner asserted trial counsel did not properly 

withdraw from his case and did not notify the petitioner of his intent not to file a Rule 11 

application on the petitioner’s behalf. The petitioner also asserted trial counsel “impeded 

[the] [p]etitioner’s diligent efforts to file a timely petition.” Finally, the petitioner asserts 

because of prison “lock downs,” he “has been denied access to the prison library, legal 

materials.” In support of his post-conviction claims, the petitioner attached two 

documents indicating the South Central Correction Center, where he was housed, was on 

lock down on January 27, 2016 and March 17, 2016. The post-conviction court 

summarily dismissed the petition as untimely, and this pro se appeal followed.

ANALYSIS

On appeal, the petitioner asserts his lack of knowledge of post-conviction 

procedure and due process concerns tolled the one-year statute of limitations for his postconviction claims. The petitioner states as “a poorly educated layman,” he failed to 

understand the one-year statute of limitations applicable to his post-conviction claims and 

“depended solely on counsel’s instruction.” Further, the petitioner states during the time 

period in which he had to file his post-conviction petition, he believed he was still 

represented by counsel, and as such, could not proceed with a pro se petition. 

Additionally, the petitioner complains that various inconveniences while he was 

incarcerated also led to his untimely post-conviction petition. The State argues the 

petition for post-conviction relief was untimely under Williams v. State and that no facts 

exist to support due process tolling of the one-year statute of limitations. 44 S.W.3d 464, 

470-71 (Tenn. 2001). Upon our review of the record, we conclude the petitioner filed a 

timely petition for post-conviction relief. However, because the post-conviction court 

summarily dismissed the petition, we remand this matter to the trial court for proceedings 

consistent with this opinion.

A post-conviction petitioner has one year from “the date of the final action of the 

highest state appellate court to which an appeal is taken” to file a petition for relief. 

Tenn. Code Ann. § 40-30-102(a). “Time is of the essence of the right to file a petition for 

post-conviction relief.” Id. Untimely filing of a post-conviction petition extinguishes a 
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petitioner’s post-conviction claims unless a petitioner can establish he is entitled to due 

process tolling of the statute of limitations. Id. The Tennessee Supreme Court has 

outlined limited circumstances which call for due process tolling of untimely postconviction petitions. One such circumstance allows a petitioner to prove his postconviction petition was untimely due to attorney misrepresentation. Williams, 44 S.W.3d 

at 470-71. In order to succeed, a petitioner must provide sufficient facts which prove 

attorney misrepresentation affected the filing of his post-conviction petition. Tenn. Code 

Ann. § 40-30-104. Absent sufficient facts establishing a petitioner is entitled to due 

process tolling, an untimely petition must be dismissed. Eddie Williams v. State, No. 

W2011-00202-CCA-R3-PC, 2011 WL 2410364, at *1-2 (Tenn. Crim. App. June 9, 

2011), perm. app. denied, (Tenn. Oct. 18, 2011). 

On appeal, the State argues the petitioner’s post-conviction petition was correctly 

dismissed by the post-conviction court as it was untimely filed pursuant to Williams v. 

State. 44 S.W.3d at 470-71. Upon our review of the record and applicable law, however, 

we disagree. In Williams, the petitioner filed an untimely post-conviction petition after 

his Rule 11 petition was dismissed as time-barred. Id. at 465. In the context of a Rule 11 

dismissal, the Williams court “emphasize[d] that under no circumstance are we allowing 

a petitioner to file an untimely application for permission to appeal with the belief that the 

one-year post-conviction statute would commence upon this Court’s dismissal of that 

untimely application.” Id. at 471 (emphasis added). Further, the Williams court stated 

the untimely filing of an application for permission to appeal to the Tennessee Supreme 

Court “does not constitute ‘an appeal’ as that term is used in Tennessee Code Annotated 

§ 40-30-[1]02(a) and therefore does not delay commencement of the one-year postconviction statute of limitations.” Id.

In this case, however, the record shows, “[u]pon consideration of the [Rule 11]

application,” our Supreme Court denied the petitioner’s application for permission to 

appeal. Rather than simply dismissing the petitioner’s Rule 11 application as in 

Williams, here, our Supreme Court reviewed the petitioner’s Rule 11 application and 

denied it upon consideration of the merits. As such, we conclude the present facts differ 

from Williams and therefore, a different result is warranted. Because our Supreme Court 

considered and ruled on the petitioner’s Rule 11 application, albeit a denial, the Court’s 

order of March 23, 2016 constituted “the date of the final action of the highest state 

appellate court to which an appeal [was] taken.” Tenn. Code Ann. § 40-30-102(a). 

Accordingly, the petitioner had until March 23, 2017, to file his petition for postconviction relief. Id. The petitioner’s June 31, 2016 petition for post-conviction relief 

was, therefore, timely filed.5 Accordingly, because the post-conviction court summarily 

 

5

See footnote 4. 
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dismissed the petition, we remand the case to the post-conviction court for consideration 

of the petition in accord with the Post-Conviction Procedure Act. 

CONCLUSION

Based upon the foregoing authorities and reasoning, the judgment of the postconviction court is reversed and remanded.

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 J. ROSS DYER, JUDGE