### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE January 16, 2002 Se ssion

KENNETH P. BONDURANT and HUGH PETER BONDURANT

v. STATE OF TENNESSEE

Post-Conviction Appeal from the Circuit Court for Giles County

No. 8457 & 8458 Stella Hargrove, Judge

No. M2000-02287-CCA-R3-PC - Filed October 30, 2002

The appella

nts, KennethP. Bondur

ant and H ugh Pete r Bondur ant, appeal from the dismissal of their post-conviction petitions following a hearing on the question of whether the petitions were filed with in the time

prescribed under Tennessee Code Annota ted section 40-30-202(a). The trial court found from the evidence presented that the petitions were filed more than one y ear from the final action of the highest appellate court to which an appeal was taken and that the petitions were time barred. As a result the petitions were dismissed. In this appeal the appella

nts present

two issuesfor our c onsidera tion. Fir st, the ap

pellants chall enge whether the trial court erred in finding that the first post-conviction petitions filed by the appella nts from pris on were

mailed be

yond the appl

icable s tatute of

limit atio ns. Second, the appell ants as k us to interpret Tennessee Code Annotated section 40-30-202(a ) so as to begin the running of the sta

tute of limitati ons from th e date the highe st appella te court ’s manda

te is filed on dire ct app eal. We find no error in the findings of the trial court, and w e decline to interpret Tennessee Code Annotated s ecti on 40-30- 202(a) i n the manner urg ed by the appe

llants. Accordingly , the judgment of the trial court is affirmed.

Tenn. R. App.P. Appea l as of Right; Judgment

of the Circ

uit Court is Affirme

d.

J ERRY L. S MITH , J., delivered the opinion of the court, in which T HOM AS T. W OODA LL and R OBERT W. W EDEMEYER , JJ., joined.

Joe W. Henry , Jr., Pulask

i, Tennessee, for the

appella nt, Kenne th P. Bondu

rant and William Ba

rnes, Columbia, Tennesse e, for the appell ant, Hug h Peter B onduran

t.

Paul G. Summers, Attor ney Gene ral & Repor

ter; David H. Find

ley , Assistan

t Attorne y General ; Mike Bottoms, District Attorney Ge neral for the appellee, State of Tennessee.-2- OPINION

Factual Backgr

ound

The appellants wereconvicte d of seco nd degr ee murde r and sen tenced t o twenty-five y

ears in prison. Their convictions were affirmed by this Court in State v. Kenneth Patterson Bondurant
, No. 01C 01- 950 1-C C-0 002 3, 1 996 Ten n. C rim . Ap p. LE XIS 322 (Tenn. Crim. App. At Nashville, May 24, 1996). A factual summary of the facts underly

ing the convictions may

be found in that opinion. See id . At *2 - *1 6. The Te nnessee Supreme Court de nied the a

ppellant s permissi on to appeal, concurring in results only on November 12, 1996. On November 26, 1997, the appellants filed petitions for post-conviction relief. I t is apparent that this date i s tw o weeks bey ond the one yea r anniversary

of our supreme court’s denial of permission to appea

l the convictions. H owever , the appe ll ants claim that they

origina lly mailed pos tconviction petitions from prison on October 21, 199 7, within the one year statute of limitations period. According to the appellan ts, their N ovember 26 petitions were filed only when they discovered

that the October petitions had never been rec eived by the trial court c lerk. Because they

were inmates and had mailed their original petitions within one y ear of the anni ver sary of the Tennessee Supreme Court’s action on their direct appeal, the appellants maintainedin the trial court and in this appeal that the petitions were timely f iled pursuant

to Tennessee Supreme Court Rule 28 § 2(G); and

Tenn. R. Cr

im. P. 49(c ). The Sta

te conte nded in the

lower co urt that th e appell ants never mailed any petitions in October, that the November petitions were time-barred, and that the O ctober petitions w ere concocted i n order t o circum vent the s tatute of

limitations

. On August 17, 2000, the trial court held anevidentiary he aring on the issue of whether the appella nts had mailed petitions to the trial court clerk in a timely

fashion u nder the applica ble statut e of limitationsand cour

t rules. At the hearing Hugh Peter B ondurant, Jr. (“Pete”) testified that he prepared post-conviction petitions for both himself and his brother, Kenneth P. Bondurant (“Pat”), in October of 1997. Due to a lack of money the b rothers decided to mail the petitions in regular prison mail rather

than by cer

tified mail. Pete Bondurant testified that mail is frequently stolen from prison ma il boxes. He identified exhi bits nine a nd ten as c opies of t he purpo rted Oct ober pet itions. Bo th petitions have a notary

of October 16, 1997, and an alleged mailing date of O ctober 2 1, 1997. Pe te Bondu rant subs equently

testifie d that he c ould not re member if

he mailed

both petiti ons or if h

is brother ma il ed hi s p et it io n s ep ar at el y. His brother, Pat, was in the high security section of the prison at the time. B ondurant

testified that when he sent something to Ms. Callahan, the Giles County cour t

c lerk, he alway s enclosed a self-addressed stamped enve lope and a cover letter to be stam p-filed

. As an inmate legal helper, he knew that time was important, and so when he never received any thing back from the clerk’s office, he mailed another set of petitions, which were photocop ies of the first set, in November. He acknowledged that

the November petitions were sent with cover letters, and that neither the November petitions nor the cover letters made any mention of a previous filing. The November petitions were dated November 24, 1997, for Pat Bondur ant and November 22, 1997, fo r Pete Bondura nt. Bondurant asserted that he had rec eipts show ing that he had paid to have petitions-3-

notarized in October

and that although he failed to bring them to the hearing he would provide them to the cou rt. At the end of this hearing, the trial court allowed both s ides to late-file exhibits. Among these is what appears to be a cover letter w ritten by another inmate le gal hel

per, Da nny Meeks, dated November

23, 1997, informing the Giles County c lerk’s office that two post-conviction petitions for Patand Pete Bondurant were enclosed and a sking that they be back dated to October

21. Another late-filed exhibit filed by the State shows only that one or b oth of

the Bondurants had something notarized on October 16, 1997. Neither appella nt filed a ny r eceipts for money pa

id for notarizing the documents. On September 6, 2000, the trial court entered an order finding that

Pete Bondurant’s testimonyconcerning the October petitions was not credible and that the November petitions should be dismissed as time-barred. Following the filing of a Motion to Reconsider the September 6, 2000, order, on Februa ry 9, 2001, the tr ial co urt he ld ano ther h earing r ega rding one of the late-filed exhibits from Pat Bondura nt, a prison library

log book purporti ng to sho w an entr y on October 16 that sa

id, “post picked up, mailed.” There was no testimony from Pat Bondurant about the log book. Melba Espinoza, the library supervisor a t Riverbend Prison, testified that she knew both of the appellants and that at one time, Pete Bondurant had a job in the libr ary as a leg al helpe

r. She sai d the library log

book was primarily used f or keeping track of which items had bee n checked

out of the library

by i nmates in the hig h se curity section of the pr ison (the “high side”), although she acknowledged

that some e

ntries did appear to reflect matters relating to legal correspondence that had been sen

t from one

inmate to a

nother. Sh

e identif ied the e ntry in que stion as showing that on October 16 Pat Bondurant had checked out a book

called “ Bitterr

oot.” Und

erneat h that entry is the notation “post picked up, mailed.” Ms. Es pinoza s aid she started working in the library in September of 1997 and had never noticed the entry until Pat Bondurant requested a copy of the page in October of 2000. Ms. Es pinoz a testified that inmat

es are n ot permitt

ed to mail items from

the libra ry and that a

ll m ail has to go through the mail r

oom. She testified that entries in the book are usually ma

de in gray or black ink, as opposed

to the blue ink used on the entry in question, but also acknowledged that sometimes blue ink had been used elsewherein the book. She stated that as a general rule, a blank line was left between entries, which

was not done with the entry in question, but she ac knowledged that there were a coup le of othe r instances in the logbook when no blank lines had bee n left. F inally , she said

she was f amiliar w ith Pete Bondurant’s handwriting, and t hat, after c omparing

the logb ook entry

with a sam

ple of Pet e Bondu rant’ s hand writi ng, th e entry app eared t o be in Pete’ s hand writi ng. Regarding Danny Mee

ks, she testified that while Meeks was an inmate legal helpe r, he w oul d
nothave had access to the “high side”or maximum security whe re Pat Bondurant was incarcer ated during the period of time when Meeks claimed to be helping Pat with his petition. However , Meeks was housed in the same unit at the prison as Pete Bondurant. On Fe br ua ry 1 3, 20 01 , t he tr ia l c ou rt fo un d t he li br ar y lo g e nt ry “had no merit” and reaff irmed the Septembe

r 6, 2000, order di smissing t he petitio ns.-4- The October Post-Conviction Petitions

As noted, both appellants claim that in October, 1997, within one ye ar of the supreme court’s order deny ing per mission to a

ppeal the ir convic tions, the

y ma iled post- convicti o n peti tions to the trial court clerk

from Riverbend Prison. Tennessee Rules of Criminal Pr

ocedure 49(c) pr ovides, in pertine nt part, th at [i]f papers required or per

mitted to be filed pursuant to the rules of criminal procedureare prepared by or on b ehalf of a p ro se litigant incarcerated in a correctional facility and ar e not received by

the clerks o f the cou

rt until af ter the ti me fixed for filing, filing shall be timely if the papers were

deliver ed to the a

ppropria te indi vidu al at t he corr ectio nal fac ilit y within the ti me fix ed for f ilin g.

Tenn. R. Crim. P. 49(c).

Similarly , Supreme

Court Rule

28 § 2(g ) provide s that [i[f papers r equired or permit

ted to be filed by these r ules are prepared by

or on behalf of a pro se petitio ner inca

rcera ted in a c orrect

ional fa cility and are not received by the clerk of the court until after the time fixed for filing, filing shall be timely

if the papers were delive

red to the app

ropriate individua

l at the co

rrectio nal fac ility with in th e tim e fix ed for f ilin g.
Tenn. Sup. Ct. R 28 § 2(G).

The question of whether

the appellants did mail their post-conviction petitions in October, 1997, as they claim, is one of f act to be determined by

the trial judge. See State v. V ickers , 970 S.W.2d 444, 448 (Tenn. 1998) (holding that a tria l court may conduct an evidentiary f act-finding proceeding as to statu

te of limita

tions issue s unrela

ted to que stions of guilt or innocence.) The findi ngs of fact of a tr ial j udge in apost-conviction proceeding are conc lusive on appeal unless the evidence prepond

erates agains t those findings. Henley v. State , 960 S.W.2d 572, 578 (Tenn. 1997). In the instan

t case the trial ju dge found that Pe te Bon durant’s testimony reg arding the October petitions was not credible. Having viewed the witness face to face and seen his deme anor, etc., we are not prep are d to second guess the trial judge’s finding s in that regard. Moreover, the proof introduced by the a

ppellants to show that they had mailed post-conviction petitions in October, 1997 is highly

suspect. The appe

llants we re unabl e to corrobo

rate Pet e Bondur ant’s tes timony

with documentation as promised at the February 9 hearing. The only document introduced in this reg ard

was an exhibit filed b y the State showing that something was notarized for the Bondur ants on October 16, 1997. The cover letters accompany ing the November post-conviction petitions made

no ref erence to the October petitions, a curious fact indeed when one considers that the lack of a response from the trial court clerk as to the filing of the October petitions was the only reason the November

petitions were mailed. Moreover, the letter from inmate leg al he lper Da nny Meeks concerning his involvement with the Bondurants is of dubious value when one considers that at the time relevant to the questions raised here, Me eks had n o acces s to Pat Bondurant. Finally , the rather-5-

cavalier way in which Pet

e Bondura

nt testified that he h andled th e mailing of the Oc tober pe

titions, i.e. mailing from the prison library in a mail box fro m which items are frequently stolen, coupled withthe curious appearance in October , 2000, of the notation on the library log book certainly made the appellant’s story a

bout the October 1997 petitions appear incredible.

The November Post-Conviction Petitions

Tennessee Code Annotated se ction 40- 30-202(a ) provide s, in pertine

nt part, that a petition for post-con viction re lief must b e fil ed “ within one (1) yea r of the date of the final action of the highest state ap pellate c ourt to whi ch” the d irect a ppeal was carri ed. Tenn. Code Ann. § 40-30- 202(a). As noted earlier the appellants maintain that th e time for filing a post-conviction petition does not beg in to run un

til the man date of t

he Supre me Court of Tenn essee issues following the denial of permission to appeal. In this case the a ppellan ts filed an e xhibit in the trial court which reflect s that although the order of the Tennessee Supreme Court denying the application for permission to appeal was entered on November 12, 1996, a mandate was not issued until November 25, 1996, a

lmost two (2 ) weeks later. T his exhibit c onsists of a

record abstrac t from the

appella te court clerk’s office. Thus, the appellants maintai n the post-con viction petitions mailed on November 21 and 24, 1997, wer

e filed w ithin the a

pplicabl e statute

of limitati ons. However, our examination of the exhibit from the appe llate cle rk’s off ice coup led with

our reading of Tennessee Rules of Appellate Procedure 42 leads us to the conclusi on that the mandate issue d from the appellate clerk’s office on Novembe r 25, 1996, was not the mandate of the Tenness ee Supre

me Court, but rathe

r was the mandate of this Cour

t. Tennessee Rules of A

ppellate Procedu re 42(a ) specif ies that t he man date of t

he supre me court shall be issued by the appe llate clerk eleven day s “after entry of the judgment

unless the court orders otherwise.” Tenn. R. App. P . 42(a) (e mphasis added.). The rule does not contemplate a supreme cour t mandate w hen the su preme c ourt deni es an app lication f or permis sion to app eal. Indeed, in this latter case Rule 42(b) directs the appellate clerk to issue the mandate of the intermed iateappella

te court “ immediate

ly ”. Tenn. R. App. P. 42 (b) (emp hasis added.) For some
reason, despite Ru

le 42(b) ’s admonitio n, the mandate of this Court apparently did not issue for almost two weeks following the supreme court’s denial of permission to appeal on November 12, 1996. In any

case the final judgment of the “highest state appellate court to which an appeal is taken

. . .” (The Tenness ee Supre

me Court), was entered on November 12, 1996. Thus, the appellants had until Novembe

r 12, 1997 in which to

file their post-conviction petitions or be barred by the statut e of limitations. Having failed to mail the November, 1997 p etitions on or before November 12 of 1997, the appellant’s petitions are barred by Tennessee Code Annotated section 40-30-202(a).

Conclusion

In light of the fore going the judgment of the trial court is AF FIRMED.

___________________________________ JERRY L. SMITH, JUDGE