-1- 

### IN THE S UP REME COURT OF TENNESS EE

AT KNOXVI LLE June 2, 200 4 S es sio n

AN THON Y JER OME STOKE S v. STA TE OF TEN NES SEE

App e al b y P e r m iss ion fro mth e Co ur t o f Cr im ina l A ppe als

Crim inal Cou rt for Ham ilton Coun ty No. 211-043 Hon. Douglas A. Meyer , Judge

No. E2002-02597-SC-R11- P C - F iled Septem ber 23, 2004

After pleading g uilty to two counts of murde r, petitioner f iled a petition for post-c onviction relief attacking his sentence s. Relief wa s denied by both the trial court and by the Court of Criminal Appea ls. There afte r, counse l for the pe titioner neither withdre w nor filed an application for permission to appea l in t h i s C o u rt . Petitioner filed multiple other pleading s, including a second petition for pos t-conviction relief seeking a delay ed appeal to t his Court from the judg ment of the Court o f C ri minal Appeals dismissing his first petition for post-convic tion relief. The Court of Criminal Appeals g rante d an evide ntiary hearing on the second petition for post-conviction relief
, a t w hic h th e tr ia l c ou rt

he ld that th e pe tit ion e r h a d b e e n d e ni ed due pr oc e ss b y the a c tio ns of

his counsel in fa iling to either withdraw or file an application for permission to appea l afte r the Court

o f C r i m i n a l A p p e a l s ’ d e c i s i o n o f t h e f i r s t p e t i t i o n

. T h e C o u r t o f C r i m i n a l A p p e a ls a g r e e d

. We

re ve rs e the de c isi on of

the Cou rt

of Cr imi na l A pp e a ls, ho ldi ng that be c a us e the re is n o rig ht t o eff ective a ssistance of c ounsel in post-conviction proce eding s, and bec ause the petitioner wa s aff orded a full evidentiary hearing and full revie w in his first-tier post-convic tion appeal, ther e wa s no due proc ess violation.

Tenn. R. App . P . 11 P erm ission to Appeal;

Judgme nt of th e Court

of Crim inal Ap peals is Reverse d

W I L L I AM M. B ARKE R , J ., delivere d the opinion of the court, in which F RAN K F. D R OW OT A , III
, C.J
., and E. R I L EY A NDE R S ON , A DOL PH O A. B I RCH , J r., and J ANI CE M. H OL DER , J J ., joined.

Julie A. Ha ll, Col umb us , O hio , f or the app e lla nt, An tho ny

Jer ome Sto ke s.

Paul G. Sum me rs , Atto rn e y Ge ne ra l & Re po rt e r; Mic ha e l E . M oo re , So lic ito r G e ne ra l; a ndAn g e le M. Greg ory , Assistant Attorney Gene ral, for

the appe llee, State of Te nnessee

.-2- OP IN ION

BACK GR OUND

On J une 15, 1995, the pe titioner, Anthony Stokes, pleaded g uiltyto one count of first deg ree murder and one count of

second de g ree murder. T he trial c ourt imposed a sentenc e of thirty -five
y ear s for the se cond deg ree murder and a life se ntence for the f i rs t d egr ee murder. T here was no dir e c t app e a l of

the c on vic tio ns or

se nte nc e s.
Stokes filed a petition for post- co n v i ct i on relief , contending that his guilty pleas we re not enter ed knowing ly

or voluntarily , that his init ial ar re s t was unlaw ful, and that c erta in evidence sh ou ld h a ve be e n s up pr e sse d. Th e tr ia l c ou rt de nie d r elief

, a ndthe Cou rt

of Cr imi na l A pp e a ls aff irmed. F ollowing the opinion of the Court of Criminal Appeals, counsel for the petitioner ne ither withdrew nor

filed an a pplication for pe rmission to appeal in this Court.

On J uly 29, 1999, three months after the Court of Criminal Appeals had a ffirme d the dis mis sa l of

his po st- c on vic tio n p e tit ion , St ok e s f ile d a pr o s e mot ion a sk ing that he be a llo we d to
proce ed pro se or that he be appointed new counsel, a nd he also requested that a copy of the opinion of the Court of Criminal Appea ls be sent to him upon filing. The Court of C riminal Appea ls denied his motion on Aug ust 3, 1999, rea soning that because the mandate had be en issued on June 30, 1999, the cour t wa s wi thout jurisdiction t o g rant the r elief r equeste d. Stokes then filed a motion on September 1, 1999, asking the C ourt of C riminal Appea ls to withdraw its opinion and judgment of Ap ri l 23 , 1 99 9, a ndthe n to re -f ile the m so a s to e sta

bli sh a ne w pe ri odwi thi n w hic h h e c ou ld a pp ly for pe rmission to appeal to the Supreme Court. This motion was denie d on September 7, 1999.

After sever al other motions wer e filed and denied, Stokes filed, on J une 22, 2000, a petition for de lay ed appe al in the Criminal Court for Hamilton County

. I n that petition, he alleg ed that he had not re ceive d a copy

of the opinion of the Court of Crimi nal Appea ls affirming the dismissal of his first petiti o n f

o r p o s t- c o n v ic ti o n r e li e f

a n d th a t h e h a d n o t b e e n a d v is e d b y h is c o u n s e l o f

the de c isi on . B y

or de r e nte re d on J uly 10 , 2 00 0, the tr ia l c ou rt dis mis se d th e pe tit ion fo r d e la y e d a pp e a l, ho ldi ng that it

wa s h is s e c on d p os t- c on vic tio n p e tit ion a ndthe c ou rt didno t ha ve th e authority to

vacate and then reinstate an opinion of the Court of Criminal Appe als so as to start anew the period within which the petitioner could made an application for permission to appea l to this Court. Stokes
appea led that dismissal to t he Court of Criminal Ap p eals. In an opinion of Oc tober 15, 2001, the Cou rt of Cr imi na l A pp e a ls r e ma nd e d th e c a se to the Cr imi na l Co urt f or Hamil ton Cou nty

fo r:

an evide ntiary h ea ri n g to determine w hen and how the petitioner lea rned that no application for

permission to appea l had bee n made as to this Court’s 1999 judgment aff irming th e d i s m issal of his first post-conviction petition; why counsel did not either w ithdraw or f

ile an application for perm i ssion to appeal that judg ment; and whether d u e process re quires that the pe titioner be g iven an opportunityto file an

app lic a tio n f

or pe rm iss ion to a

pp e a l th a t ju dg me nt.-3-

Sto ke s’ e vid e nti ary

he ari ng wa s h e ld o n Se pte mbe r 1 6, 20 02 . A t th e he ari ng , St ok e s’ attorney testified that she wa s appointed to r epre sent Stokes in his post-c onviction a ppeal in 1999 and ac knowledg ed that following the dec ision of t he C ourt of C riminal Appea ls she did not file an application for

permission to appea l and did not withdraw a s counsel. S h e ex plained that the petitioner had ma de it clea r that he w anted a nother attorney to replac e her

and that she a ssumed that he wa s r e c e ivi ng c op ie s o f a ll d oc ume nts

.

The trial c ourt conc l u d ed t h at S tokes had be en denie d due proc ess by the loss of any opportunity

to obtain second- tier review of the denial of hi s petition for post-conviction relief c aused by the a c tio ns of

ini tia l po st- c on vic tio n c ou ns e l. Th e tr ia l c ou rt the n o rd e re d th e c a se tr a ns fe rr e d to the Co u r t o f Crim in a l A p p e a ls

. T h e ma jo r it y o f th e Co u r t o f Crim in a l A p p e a ls c o n c luded that Stokes was denied due proce ss by his post-c onviction c ounsel’s failure to e ither proper ly withdraw

as counse l or timely

file an a pplication for permission to a ppeal. J udg e Woodall filed a dissenting opinion, concluding that beca use Stokes did not have a c o n s t i t u t i o nal rig ht to effe ctive assistanc e of counse l during post-conviction proc eeding s an d b e c a u s eh ew a s a f

f orded a full evidentiary

hearing and full re view in his first-tier post-c onviction appea l, there w as no due pr ocess violation.

AN AL YSI S

When Stokes filed a post-conviction petit ion attacking his convictions of first de g ree murder and sec ond deg ree murder, he was afforde d an evide ntiary hearing by

the trial court and first-tier appellate revie w by

the Court of Criminal Appe als. I t is undisputed, howeve r, that he w as denie d the opportunity , throug h no fau l t o f h i s o wn, to seek a discretionary

appea l to this Court from the Court of Criminal Appeals’ affirma nce of the denia l of his reque st for post-convic tion relief. The majority of the Court of Criminal Appea ls held that the petitioner had be en denie d due proc ess by
po st- c on vic tio n co un se l’ s fa ilu re to ei the r withd ra w und e r Sup re me Cou rt Rul e 14 or to fi le a tim e ly Rule 11 application for

permission to appea l.

The sole issue is whe ther the Court of C riminal Appea ls erre d in gr anting Stokes a delay ed
appea l to thi s C o u rt on his petition for post-conviction relief afte r Stokes had bee n denied the opportunity

to file a timely

application for

permission to appea l as a re sult of a misrepre sentation made by his post-conviction counsel. We hold that the court’s decision wa s in error

.

Delaye d Appeal Unde r the Post-Conviction Proce dure Act

The Post-Convi ction Procedur e Act provides for a dela y ed appe al wher e the pe titioner has been “ denied the right to an a ppeal from the orig inal conviction.” Tenn. Code Ann. § 40-30- 113(a) (2003). In State v. Evans, 108 S.W .3d 231, 235-36 (Tenn. 2003), we rec og nized that the substantive rig ht to a delay ed appe al was e stablished by t h e P o st-Conviction P roce dure A ct, see Tenn. Code An n. se c tio n 4 0- 30 -1 13 (a ), a ndthat th e pr oc e du re fo r i mpl e me nti ng that ri g ht w a s se t f orth i n Supreme Court Rule 28, § 9(D) . Supreme Court Rule 28, § 9(D) al l o ws eit her a trial court or

the Court of Criminal Appe als to g rant a delay ed appea l a s post-conviction relief wher e the pe titioner, throug h no fault of his own, wa s denied sec ond-tier r eview f ollowing his direc t appea l.-4-

All the case s in this S tate that addr ess the g rant o f a delay ed appe al due to inef fec tive assistance of counsel have involved the ac tions of counsel on direct appeal . See, e.g ., Wallace v. State, 121 S.W .3d 652 (Tenn. 2003) (holding that delay ed appe al was a ppropriate post-conviction relief wher e def

endant’ s counsel fa iled to file a motion for ne w trial, re sulting in waive r of a ll issues

on app e a l othe r tha n s uf

fi c ie nc y of e vid e nc e ); Ev a ns , 1 08 S.W. 3d 23 1 (de la y e d a pp e a l app ro pr ia te wher e inef

fec tive assistance of counsel unilatera lly denied the defe ndant from se eking second- tier revie w on direc t appea l); State v. Cameron, 909 S.W.2d 836 (Tenn. Crim. App. 1995) (de fenda nt

was e ntitled to delay ed appe al following counsel’s f ailure to file a motion for new tria l); Proctor v. State, 868 S.W .2d 669 (Tenn. Crim. App. 1992) (def endant was entitled to ha ve delay ed appe al for purposes of pe rmitting application for permission t o appea l to Supreme Court, in light of trial counsel’s unilate ral termination of direct a ppeal pr ocess f

ollowing f

irst-tier re view).

The issue of w hether

the rig ht to a delay ed appea l e x tends to se cond-tier revie w of the denial of post-convic tion relief ha s y et to be addr essed by this Court. Nothi ng in the Post-Convi ction Pr oc e du re Ac t, S up re me Cou rt Rul e 28
, or a ny c a se la w p ro vid e s f or su c h r e lie f, a ndwe de c lin e to

e xten d th e ri g ht t o a

de la y e d a

pp e a l to su c h s itu a tio ns

.

Due Proc ess and Ine

ffective A ssistance of Counsel

The Court of Criminal Appea ls found that the petit ioner wa s denied due proce ss by counsel’s ineffe ctive assistanc e on the f irst petition for post-conviction re lief. We disag ree

. The United States Supre me Court has held that the sc ope of the Due Proc ess Clause does not

e xte n d to p o s t- c o n v ic ti o n p r o c e e d in g s

. Pe n n s y lv a n ia v

. F in le y , 4 8 1 U

. S. 5 5 1
, 5 5 4

- 5 5 ( 1 9 8 7 )

. We have likew ise held that “the opportunity to collatera lly

attack c ons t i tutional violations occur ring du ri ng the c on vic tio n p ro c e ss i s n ot a fu nd a me nta l r ig ht e nt itl e d to he ig hte ne d d ue pr oc e ss pr ote c tio n. ” B ur fo rdv. Sta te , 8 45 S.W. 2d20 4, 20 7 ( Te nn . 1 99 2)

. Whil e the Du e Pr oc e ss C laus e do e s no t re qu ir e the app oin tme nt of c ou ns e l in po st- c on vic tio n pr oc e e din g s, a state ma y c ho os e “ to offe r help to those see king r elief f rom convictions.” F inley , 481 U.S. at 559.

Tenne ssee ha s established a statutory rig ht to post-conviction counsel. Tenn. Code Ann. § 40-30-107( b)(1 ) (2003) . Howeve r, “a state may

g ive prisoner s the assistance of counse l without

re qu ir ing ‘the fu ll p a no ply of pr oc edu ral pr ote c tio n th a t th e Con sti tut ion re qu ir e s b e g ive n to defe ndants who ar e in a f undamentally d i ffe rent position--at tria l and on first appe al as of right.’ ” House v. State, 911 S.W.2d 705, 712 (Tenn. 1995) ( quoting F inley , 481 U.S. at 559). Therefor e, beca use there is no constitutional rig ht to counsel in post-conviction proc eeding s, we ha ve held that “ther e is no constitutional right to eff ective assistance of counsel in post -convic tion procee dings.” I d. Th e Un ite d St a te s Su pr e me Cou rt ha s lik e wi se he ld that th e F ou rt e e nthAm e nd me nt’ s r ig ht t o counsel, a nd there fore rig ht to eff ective assistance of counsel, only applies throug h the first appe al as of right. See Doug las v. California, 372 U.S. 353, 357 (1963)

.

I n House, a

situation arose simil ar to that in the case under submission, in that the defe ndant fi le d a se c on d pet iti on fo r p os t- c on vic tio n r e lie f, c la imi ng ine ff e c tiv e a ssi sta nc e of

c ou ns e l w ith-5-

respe ct to his first p et i t i o n fo r post-convic tion relief. House , 911 S.W .2d at 707. The Court of Criminal Appeals held that, a lthough the ine ffe ctiveness of prior post-c onviction counsel wa s not

a g round for relief

, it wa s an “important fac tor” in de termining whether a s ec o n d post-conviction claim was ba

rre d by waiver or pre vious determination. I d. at 708. We disag ree d:

Th e re be ing no c on sti tut ion a l or statut ory ri g ht to e ff e c tiv e a ssi sta nc e of

c ou ns e l in post-conviction proc eeding s, a court should not consider the ineff ectivene ss of counsel a t a prior post-c onviction proce eding in deciding whether a g round for relief has bee n previously

deter mined.

I d

. at 7 1 2. We specifica lly held that a c laim of ineff ective a ssistance of post-c onviction counsel

c ou ld “ no t e sta

bli sh a le g a l e xcu se fo r f

a ilu re to ra ise iss ue s in the ini tia l pr oc e e din g .” I d. I f a c la im of ineff ective a ssistance of post-c onviction counsel does not esta blish an excuse for de fenda nt’s failu re to r a ise a n issu e , it sim ila rl y c a nn ot p ro vid e a n e xcu se fo r a de fe nd a nt’ s f

a ilu re to t ime ly

fi le a Rule 11 application.

De s p i t e there being no rig ht to effe ctive assistanc e of c ounsel during post-conviction
proce eding s , t h e C ourt of Criminal Appea ls relied upon B urfor d v. State, 845 S.W .2d 204 (Tenn. 1992), Will iams v. State, 44 S.W .3d 464 (Tenn. 2001), State v. Br own, 653 S.W.2d 765, 767 (Tenn. Cr im. Ap p. 19 83 ), a ndSta te v. Ho ps on , 5 89 S.W. 2d95 2, 95 4 ( Te nn . Crim. Ap p. 19 79 ), in concluding that Stokes was denied due proce ss by his post-conviction counsel’s f ailure to file a tim e ly Rul e 11 app lic a tio n. Tw o of tho se c a se s, Ho ps on a ndB ro wn , in vo lve situatio ns sim ila r t o that in Evans, in that appointed counse l failed to take action af ter a n adver se dec ision on direct appeal , unilatera lly

deny ing the defe ndant the rig ht to second- tier revie w. See Evans, 108 S.W .3d at 234; Hopson, 589 S.W .2d at 954; Br own, 653 S.W.2d at 767. Neither of t hese cases a ddresse d counsel’s r esponsibilityfollowing a post-convic tion appeal.

The re maining c ases, B urfor d and Willi ams, likewise do not suppor t t h edecision of the Court of Criminal Appea ls. I n both case s, we he ld that d u e p ro cess considerations outweig hed the
g overnme nt’s interests and pr eclude d the application of the statute of limitations to bar the
prese ntation of the defe ndant’s claims, thus g iving the defe ndant a right to have his claim hear d on the me ri ts. Willi a ms, 44 S.W. 3d a t 47 1 ( ho ldi ng that a tto rn e y mis re pr e se ntatio n may

tol l th e po stconviction s tatute of li mitations despite the presenc e of statutory lang uag e stating that the statute of limit ations shall not be tolled f or any rea son); Bur ford, 845 S.W .2d at 209 (a llowing the tolling of the po st- c on vic tio n sta tut e of lim itatio ns wh e re the pe tit ion e r wa s for c e d to wa it t o b ri ng his po stconviction claim until underly ing c onvictions were decla red inva lid).

I n Wil liams, misreprese ntation by defe ndant’s counse l le d to a failure to file an a

pplication for permission to appea l to this Court following the decision of the Court of Criminal Appeals on direc t appea l. The def

endant be lieved that the c ase ha d been pe nding be fore this Court, and by the tim e he fi le d a

pe tit ion fo r pos t- c on vic tio n re lie f, his pe tit ion wa s dism iss e d as time -b arr e d. We h e ld that if th e d e f

e n d a n t w a s u n d e r th e imp r e s s io n th a t a Ru le 1 1 ap p li c a ti o n w a s p e n d in g , he wa s eff ectively prec luded from f

iling a timely

petition for post-conviction re lief, and tha t the attorney ’s-6-

mis re pr e se ntatio n a ndfailu re to w ith dr a w a s c ou ns e l wa rr a nte d a tol lin g of the statut e of

lim itatio ns

. Wil liams, 44 S.W .3d at 471.

I n Willia ms, un lik e thi s ca se , th e a tto rn e y ’s ine ff e c tiv e a ssi sta nc e oc c ur

re d o n d ir e c t app e a l, and not during the pos t-conviction process. Counsel’s actions precluded W illiams from eve n filing a petition for post-c onviction relief and having his claims hear d on the m erits. I n that decision we
str e sse d the imp orta nc e of a llo wi ng the pe tit ion e r t o b ri ng a c oll a te ra l a tta c k a g a ins t hi s c on vic tio ns :
To summarily

terminate his cla im without furthe r inquiry would be an “ abridg ement of both direc t and p o s t -convic tion avenues of appea l – without ever re aching the merits of the a

ppell[ee]’s case – [and] would be patently unfair.”

I d

. A ll th a t d u e p r o c e s s r e q u ir e s in th e p o s t- c o n v ic ti o n s e tt in g is th a t th e d e f e n d a n t h a v e“‘ the
op po rtu nit y to be hea

rd at a meaning ful time and in a meaning ful manner .’” H ouse, 911 S.W.2d at 711 (quoting Mathews v. Eldridg e, 424 U.S. 319, 333 (1976)) . I n t h i s ca s e, S t o k es is not being denied the right to pre sent his post-conviction claim. I n fac t, his post-conviction claim has bee n hear d and re

jected by two differ ent courts.

CO NC LU SION

I n sum mary , we f

ind that the petitioner wa s not denied due pr ocess by his post-conviction counsel’s f

ailure to e ither wit hdraw as counsel or file a n application for permission to appea l after the Court of Criminal Appe als upheld the trial court’s denial of post-conviction relief

. I t has bee n

we ll e sta bli sh e d th a t pe tit ion e rs do no t ha ve a c on sti tut ion a l r ig ht t o e ff e c tiv e a ssi sta nc e of

c ou ns e l,

a ndthat all due pr oc e ss re qu ir e s d uring po st- c on vic tio ns pr oc e du re s is a me a nin g fu l op po rtun ity

to be hea rd. He re, the petitioner wa s aff orded a full evidentiary hearing and full review in his first-tier post-conviction appe al. Ther efor e, ther e wa s no due proc ess violation. A s such, the dec ision of the Court of Criminal Appeals is reve rsed.

Be cause it appear s to the C ourt that the petit ioner, Anthony J erome Stokes, is indigent, the costs of the a

ppeal will be pa id by

the State of Te nnessee

.

_____________________________ WI LL I AM M. B AR KE R, JUS TI CE