### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON REMANDED B Y THE SUPRE ME COURT ON

MARCH 5, 2001

DAVID LEE HUNDLEY v. STATE OF TENNESSEE
Appeal from the Circuit Court for Weakley County No. 1717 William B. Acree, Jr., Judge

No. W2001-00500-CCA-RM-PC - Filed May 3, 2001

In this case, the pet

itioner, David

Lee Hundley, filed a petition for post-conviction relief. The trial court dismissed the petition on the basis that it was barred by the applicable statu

te of limitations. Our Court reversed and remanded for a determinati on by the trial court as to whether there was sufficient evidence of Petit

ioner’s prior men

tal health proble

ms to warrant a tolling of the statute of limitations. David

Lee Hundley v. State , No. 02C01-9810-CC-00313, 1999 WL 668723, Weakley County (Tenn. Cri m. App., J ackson, Augu st 26, 1999). The supreme court granted the State’s application for permission to appeal pursuant

to Tenn. R. App. P. 11 a

nd remanded the c

ase to this Courtfor reconsideration in light of State v. Nix , ___S.W.3d ___, No. E1999- 02715-SC-R11-PC, slip op. (Tenn. Fe

b. 20, 2001). Upon r

emand, we affir

m the judgment of t

he trial court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

T HOMAS T. W OODALL , J., delivered the opinion of the court, in which G ARY R. W ADE , P.J. and J OE G. R ILEY , J., joined. David Lee Hundley, pro se , Nashville, Tennessee.

Paul G. Summers, Att

orney Gener

al and Reporter; J. R

oss Dyer, A

ssistant Attorney

General; Thomas A. Thomas, District Attorney General; and James T. Cannon, AssistantDistrict Attorney General, for the appellant, State of Tennessee.
OPINION

A detailed recitation of the facts in t his case is fou nd in this Court’s prior opinion in the matter of David Lee Hu

ndley v. Sta

te . We will therefore only provide a summary

of the facts pertinent to this opinion.

Petitioner plead guilty to two counts of s econd degree murder in November 1992. He received two twenty-five

(25) year sentences, to be served consecutively. On August 22, 1995, he filed a timely petition for

post-conviction relief. However, on December 11, 1995, he filed a motion to dismiss the petition, which was granted by the trial court in an order dated January 5, 1996.2

On May 30, 1997, Petitioner filed the petition for post-conviction relief at issue in this case. Pertinent to the issue regarding the standard of mental incompetence, which a petitioner

must satisfy before due process requires a to lling of the applicable statute of limitation, the petition made the following claim regarding Petitioner’s mental condition during and after the period in which he had agreed to the d

ismissal of his timely

-filed petition: Inquiries revea led that petitioner , during this time p

eriod and for quit

e some time after, was cle arl y p sychotic a nd unable to prese

nt anything

in a logical orde

rly fashion, [and] further, that he was actively hall ucinating, deluding, and was probably suicidal and as a result of his serious psychosis at the time, chose to withdraw his petition. This is the professional opinion of Doctor Lawrence J. Weitz, Ph.D., Chief Psychologist at Lois DeBerry Special Needs Facility.

Even though the petition indicated that a letter from Dr. Weitz to an “inmate legal aid” was attached therein, the lette

r is not a part of the record on

appeal. Prior to the issuance of this Court’s opinion in this case in 1999, we enter ed an o rder requiring that the record for appeal be supplemented with all documents initially attached to the petition filed in May 1997.

There is doc umentation in the record, consisting of a letter from the director of forens i c services of the Middle Tenn essee Mental Healt h In stitute, which reveals that, in April 1992, Petitioner was capable of adequately defending himself on the original murder charges and that he
was also able to understand the charges pending

against him, advi

se his counsel, an

d participate in his own defense. This conclusion was drawn by the Middle Tennessee Mental Health I nstitute after Petitioner had improved from

initially bei

ng found incompe

tent to stand trial b

y the trial c

ourt in February 1992. The letter of April 1992 from the forensic science director of the Middle Tennessee Mental Health Institute also stated that the Defendant met the criteria for an insanity defense at the time the offense was committed.

Prior to Petitioner filing

a motion to

dismiss his initial petition for post-conviction relief, an order was entered by the trial court requiring that Petitioner betested to “evaluate his competence to participate in his prosecution of the Petition filed here in.” In this

order, the trial court authorized the Lois DeBerry Special Nee d Unit of the Tenn essee Department of Correction to provide any reports resulting from these te sts to the trial court, the State, and Petitioner’s attorney. The order further reflected that,

prior to entering

his guilty pleas to second degree murder, Petitioner was tested and appeared to have a functional intelligence quotient of “seventy (70) or below.” The record does not contain the results of these tests, however.

In its per curiam

order granting the St

ate’s applicatio

n for permission to a

ppeal pursuant to Tenn. R. App. P. 11 from this court’s previous opinion in this case, the supreme court stated, “Upon consideration of the application for permission to appe al and the record before us, the application of the State of Tennessee is granted and remanded to the Court of Criminal Appea ls fo r reconsideration in light of State v. Nix and Purkey .”3

The supreme court considered an issue of first impression in State v. Nix , namely, “w hat is the standard of menta

l incompetence th

at a petitioner mus

t satisfy bef

ore due process

requires tolling of the post-conviction statute of limitations.” Nix , slip op. at 1. The supreme cour t specifically

held that “due process re

quires tolli

n g of the post-co

nviction statute of

limitations onlyif a petitioner shows that he is unable e ither to manage

his personal aff

airs or to underst

and his legal right s and liabilities.” Id. at 4 (emphasis added).

The supreme court also rejected the argument that due

process require

s a tolling of the s

tatute o f limitations upon the “mere assertion of a psychological problem.” Id . In supp ort of this, th e suprem e court cited Coe v. State , 17 S.W.3d 193, 221 (Tenn. 2000), for its statement that “the existence of a

mental disorder d

oes not automatica

lly translat

e into a finding of

incompetency

to be executed.” Nix , sli p op. a t 4. In Nix , the supreme court further e

mphasized that “to ma

ke a prima facie showing of incompetence requiring tolling of the limitations period, a post-conviction petition must include specific

factual alleg

ations that demonstr

ate the petitioner

’s inability t

o manage his personal affairs or understand his legal rights and liabilities.” Id. at 5.

The sup reme court rec

ognized that the r

equired prima fa

cie showing may

be satisfied in
se veral w ays. Various documents including affidavits, depositions, medical reports, and/or other credible evidence conta

ining specific

factual allegations regarding the competence of the petitioner may be attached to the petition. See id. D ocuments originating fr om mental health pr

ofessionals
are not man dat ory, however. The necessary evidence may also consist of affidavits or depositions from lay pe

rsons, including family members, prison officials, attorney s, or any other persons

who may have knowledge of facts that demonstrate that petitioner is either unable to manage hi s ow n personal affairs or understand his legal rights and liab ilities. Id. In the instant case, neither the pet ition nor other documents in the record demonstrate that Petitioner has been unable to mana g e his personal aff

airs or understa

nd his legal rig

hts and liabilities.

In sum, because the petition in this case and the documents available i n the record do not meet the test of eviden

ce necessary

to avoid dismis sal under the requirements set forth in State v. Nix, the petition is barredby th e app lic abl e st atu te o f li mit ati ons . Ac cord ingl y, we conclude that the trial court properly dismissed the petition for post-conviction relief filed by the Pet i tioner in May 1997.
CONCLUSION

For the foregoing reasons, the judgment of the trial court dismissing the petition for p ost

conviction relief is affirmed.

___________________________________ THOMAS T. WOODALL, JUDGE