IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

September 28, 2010 Session

KIMBERLY THURMAN v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Anderson County

No. BOC00225 Jon Kerry Blackwood, Judge

No. E2010-00993-CCA-R3-PC - Filed January 11, 2011

The petitioner, Kimberly Thurman, filed a petition for post-conviction relief from her

conviction for second degree murder. The petition was filed outside the one-year statute of

limitation for filing a post-conviction petition, but the petitioner alleged that the limitations

period should be tolled because she was unable to manage her personal affairs or understand

her legal rights and liabilities. The post-conviction court summarily dismissed the petition

as time-barred, and the petitioner now appeals. Upon review, we affirm the judgment of the

post-conviction court.

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

NORMA MCGEE OGLE, J., delivered the opinion of the Court, in which JAMES CURWOOD

WITT, JR., and CAMILLE R. MCMULLEN, JJ., joined.

Thomas Marshall, Clinton, Tennessee, for the appellant, Kimberly Thurman.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Senior Counsel;

David S. Clark, District Attorney General; and Sandra N. C. Donaghy, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

On August 30, 2008, the petitioner pled guilty in the Anderson County Circuit Court

to second degree murder in exchange for a fifteen-year sentence. On March 17, 2010, the

petitioner, acting pro se, gave prison officials her post-conviction petition to mail, and it was

filed on March 31, 2010. In the petition, she acknowledged that the petition was untimely.

However, she averred
that she was not previously advised about the statute of

limitations and has to be dependant [sic] upon the law library at

TPFW. Petitioner respectfully requests that the statute of

limitations be tolled under [State v. Nix, 40 S.W.3d 459 (Tenn.

2001)] as she was unable to manage personal affairs or to

understand legal rights and liabilities.

Also in the petition, the petitioner stated that her trial counsel was ineffective. She asserted

that counsel failed to have a “mental evaluation completed on her . . . [and] that she was on

psychotropic medications at the time of the plea.”

On April 12, 2010, the post-conviction court filed an order summarily dismissing the

petition as untimely. The court also appointed counsel to assist the petitioner in appealing

the dismissal. On appeal, the petitioner argues that the post-conviction court failed to rule

upon her claim that the statute of limitation should be tolled, citing Nix for the proposition

that, in limited circumstances, the post-conviction statute of limitation may be tolled if a

petitioner demonstrates that she is unable to manage her personal affairs or to understand her

legal rights and liabilities. The petitioner maintains that even if she failed to properly support

her claim for tolling with proper documentation, she should not be held to a strict standard

of compliance because she was acting pro se.

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II. Analysis

We note that “[r]elief under [the Post-Conviction Procedure Act] 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). However, to obtain relief,

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 if no appeal is taken, within

We note that on appeal, the Petitioner maintained that she “tried to start the post-conviction process

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prior to the statute of limitations running . . . [by keeping appointments] with assigned ‘law clerks’ prior to

one year after her judgment [was filed].” The Petitioner attached to her brief copies of appointment notices

regarding these meetings. However, the Petitioner acknowledged that “no specific rule seems to authorize

attaching documents to a brief that are not part of the record.” See State v. Matthews, 805 S.W.2d 776,

783-84 (Tenn. Crim. App. 1990).

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one (1) year of the date on which the judgment became final, or

consideration of such petition shall be barred.

Tenn. Code Ann. § 40-30-102(a); see also Williams v. State, 44 S.W.3d 464, 468 (Tenn.

2001). The statute emphasizes that time is of the essence of the right to file a petition for

post-conviction relief or motion to reopen established by this chapter, and the one-year

limitations period is an element of the right to file such an action and is a condition upon its

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

Clearly, the post-conviction petition was filed well outside the one-year statute of

limitation. The petitioner maintains that the statute of limitation should be tolled because she

was mentally incompetent during this time. However, the only support the Petitioner has

provided for this contention is her statements in the petition. We acknowledge that, in

limited circumstances, the post-conviction statute of limitation may be tolled for incompetent

petitioners. Nix, 40 S.W.3d at 463. However, our supreme court has explicitly rejected the

notion that “due process requires tolling for incompetency upon the mere assertion of a

psychological problem.” Id. (emphasis added). The Nix court

emphasize[d] that to make a prima facie showing of

incompetence requiring tolling of the limitations period, a

post-conviction petition must include specific factual allegations

that demonstrate the petitioner’sinability to manage his personal

affairs or understand his legal rights and liabilities.

Unsupported, conclusory, or general allegations of mental

illness will not be sufficient to require tolling and prevent

summary dismissal. . . .

Id. at 464.

In the instant case, the petitioner has not met her burden of establishing, by means

other than summary allegations of mental illness, that she was unable to manage her personal

affairs or understand her legal rights and liabilities. At most, the petitioner alleges “that she

was on psychotropic medications at the time of the plea”; however, the petitioner does not

allege what effect, if any, these medications had on her ability to manage her affairs or

understand her rights. Therefore, there is no discernable reason in the record to toll the

post-conviction statute of limitation. Accordingly, we conclude that the post-conviction

court did not err in dismissing the petition.

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III. Conclusion

Finding no error, we affirm the judgment of the post-conviction court.

_________________________________

NORMA McGEE OGLE, JUDGE

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