IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 5, 2012 

MANUEL HAYNES v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 07-06993 James M. Lammey, Jr., Judge

No. W2012-00619-CCA-R3-PC - Filed December 3, 2012

The pro se Petitioner, Manuel Haynes, appeals the ShelbyCounty Criminal Court’s summary

dismissal of his petition for post-conviction relief as untimely. Because the petition was

untimely and the Petitioner has not shown that due process concerns tolled the one-year

statute of limitations, we affirm the judgment of the post-conviction court.

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

CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which THOMAS T.

WOODALL and JEFFREY S. BIVINS, JJ., joined.

Manuel Haynes, Whiteville, Tennessee, Pro Se.

Robert E. Cooper,Jr., Attorney General and Reporter;Jeffrey D. Zentner, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Summer Morgan, Assistant District

Attorney General, for the Appellee, State of Tennessee.

OPINION

Background. On December 4, 2008, Haynes was convicted of two counts of

aggravated robbery, Class B felonies. He was sentenced as a Range II, multiple offender to

consecutive sentences of twenty years for the first count and fifteen years for the second

count, for an effective sentence of thirty-five years in the Tennessee Department of

Correction. Haynes appealed his convictions, which were affirmed. See State v. Manuel

Haynes, No. W2009-00599-CCA-R3-CD, 2010 WL 2473298, at *1 (Tenn. Crim. App. June

17, 2010), perm. app. denied (Tenn. Nov. 12, 2010).

On November 29, 2011, the Petitioner filed a pro se petition for post-conviction relief,

alleging ineffective assistance of counsel, due process violations, prosecutorial misconduct,
and improper sentencing. The State filed a response to the post-conviction petition, arguing

that the petition was filed outside the one-year statute of limitations. On February 6, 2012,

the post-conviction court entered an order summarily dismissing the petition as untimely.

The Petitioner now appeals the summary dismissal of his petition.

Analysis. On appeal, the Petitioner cites to a series of unfortunate events that

prevented him from filing a timely petition and that violated his due process rights. These

events included the following: (1) the prisoner who prepared the Petitioner’s post-conviction

petition failed to finish it until shortly before the expiration of the one-year statute of

limitations; (2) the prison in which the Petitioner was confined failed to provide the

necessary paper for printing his post-conviction petition; and (3) the prison’s rules regarding

the handling of mail in the mail room delayed the Petitioner’s petition by one day. The

Petitioner claims that these events resulted in the delivery of his petition to the prison mail

room six days after the expiration of the statute of limitations and prevented his petition from

reaching the Whiteville Post Office until November 23, 2011. In addition, the Petitioner

claims that he is entitled to relief pursuant to Tennessee Code Annotated section 40-30-

117(c) and Tennessee Supreme Court Rule 28, section 10(b), although no motion to reopen

the post-conviction proceedings appears in the record. The State responds that the postconviction court properly dismissed the petition as untimely. We agree with the State.

Initially, we note that we are unable to evaluate the Petitioner’s claim regarding his

alleged motion to reopen the post-conviction proceedings because he failed to include a copy

of this motion in the record on appeal. The appellant has a duty to prepare a record that

conveys “a fair, accurate and complete account of what transpired with respect to those issues

that are the bases of appeal.” Tenn. R. App. P. 24(b). “In the absence of an adequate record

on appeal, we must presume that the trial court’s ruling was supported by the evidence.”

State v. Bibbs, 806 S.W.2d 786, 790 (Tenn. Crim. App. 1991) (citing Smith v. State, 584

S.W.2d 811, 812 (Tenn. Crim. App. 1979); Vermilye v. State, 584 S.W.2d 226, 230 (Tenn.

Crim. App. 1979)).

Moreover, we conclude that the trial court’ssummary dismissal of the post-conviction

petition was proper. A person in custody under a sentence of a court of this state must

petition for post-conviction relief within one 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 one year of

the date on which the judgment becomes final. T.C.A. § 40-30-102(a) (2006). The statute

explicitly states, “The statute of limitations shall not be tolled for any reason, including any

tolling or saving provision otherwise available at law or equity.” Id. It further stresses that

“[t]ime 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 the action and is a condition upon its exercise.” Id. In the event that a petitioner

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files a petition for post-conviction relief outside the one-year statute of limitations, the trial

court is required to summarily dismiss the petition. See id. § 40-30-106(b).

Tennessee Code Annotated section 40-30-102(b) provides three exceptions to the

statute of limitations for petitions for post-conviction relief:

No court shall have jurisdiction to consider a petition filed after the expiration

of the limitations period unless:

(1) The claim in the petition is based upon a final ruling of an appellate court

establishing a constitutional right that was not recognized as existing at the

time of trial, if retrospective application of that right is required. The petition

must be filed within one (1) year of the ruling of the highest state appellate

court or the United States [S]upreme [C]ourt establishing a constitutional right

that was not recognized as existing at the time of trial;

(2) The claim in the petition is based upon new scientific evidence establishing

that the petitioner is actually innocent of the offense or offenses for which the

petitioner was convicted; or

(3) The claim asserted in the petition seeks relief from a sentence that was

enhanced because of a previous conviction and the conviction in the case in

which the claim is asserted was not a guilty plea with an agreed sentence, and

the previous conviction hassubsequently been held to be invalid, in which case

the petition must be filed within one (1) year of the finality of the ruling

holding the previous conviction to be invalid.

Additionally, due process concerns may toll the statute of limitations for postconviction relief. The Tennessee Supreme Court concluded:

[B]efore a state may terminate a claim for failure to comply with procedural

requirements such as statutes of limitations, due process requires that potential

litigants be provided an opportunity for the presentation of claims at a

meaningful time and in a meaningful manner.

Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992) (citing Logan v. Zimmerman Brush Co.,

455 U.S. 422, 437 (1982)).

Here, the Petitioner was required to file his petition for post-conviction relief within

one year of November 12, 2010, the date of the final action of the highest state appellate

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court to which his appeal was taken. See T.C.A. § 40-30-102(a). However, the Petitioner

did not file his petition until November 29, 2011, seventeen days after the expiration of the

one-year statute of limitations.

Our review of the record shows that the Petitioner’s request for relief did not fall into

one of the three narrow exceptions to the statute of limitations in Tennessee Code Annotated

section 40-30-102(b). Instead, the record shows that the Petitioner failed to file a timely

post-conviction petition because of his own lack of diligence and because of the lack of

diligence of other individuals who assisted him in preparing and filing his petition. The State

argues that it “is aware of no case finding a due process exception for carelessness to the

post-conviction statute of limitations.” See Joshua Jacobs v. State, M2009-02265-CCA-R3-

PC, 2010 WL 3582493, at *2-3 (Tenn. Crim. App. Sept. 15, 2010), perm app. denied (Tenn.

Jan. 20, 2011) (reviewing cases in which due process concerns tolled the one-year statute of

limitations for post-conviction relief). We agree. The Petitioner is not entitled to relief.

CONCLUSION

Upon review, we affirm the judgment of the post-conviction court.

______________________________

CAMILLE R. McMULLEN, JUDGE

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