IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs July 16, 2013 

JOHNNY L. McGOWAN v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 2003C2205 J. Randall Wyatt, Jr., Judge

No. M2012-02490-CCA-R3-PC - Filed September 20, 2013

Pro se petitioner, Johnny L. McGowan, appeals the Davidson County Criminal Court’s

summary dismissal of his petition for post-conviction relief. On appeal, the Petitioner asserts

that the statute of limitations should be tolled because his claim is based on a constitutional

right that did not exist at the time of his plea, and further contends that the post-conviction

court erred in failing to appoint counsel prior to dismissal. 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 Affirmed

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

JR., and ROGER A. PAGE, JJ., joined.

Johnny L. McGowan, Pro se, on appeal, and Jon Wing, at trial, for the Defendant-Appellant,

Johnny L. McGowan.

Robert E. Cooper, Jr., Attorney General and Reporter; Clarence E. Lutz, Assistant Attorney

General; Victor S. (Torry)Johnson III, District Attorney General; and Amy Hunter, on appeal

and James Douglas Sledge, at trial, Assistant District Attorneys General, for the Appellee,

State of Tennessee.

OPINION

On September 23, 2005, the Petitioner entered a guilty plea to one count of aggravated

assault. He received a sentence of eight years to be served consecutively to the sentence he

was already serving in the Department of Correction. The Petitioner did not file a direct

appeal. On September 21, 2007, the Petitioner filed a petition for writ of error coram nobis.

The trial court dismissed the petition as time-barred, and this Court affirmed on appeal. State

v. Johnny L. McGowan, M2007-02681-CCA-R3-CO, 2008 WL 4170273 (Tenn. Crim. App.
Aug. 5, 2008) perm. app. denied (Tenn. Oct. 27, 2008), perm. to rehear denied (Nov. 18,

2008).

On August 21, 2012, the Petitioner filed a petition for post-conviction relief in which

he raised claims of ineffective assistance of counsel during the plea bargaining stage.

Acknowledging that his petition fell outside of the one-year statute of limitations, the

Petitioner asserted that his petition should be permitted under Tennessee Code Annotated

section 40-30-102(b). The Petitioner argued that the recent United States Supreme Court

decisions in Missouri v. Frye, 132 S. Ct. 1399 (2012), Lafler v. Cooper, 132 S. Ct. 1376

(2012), and Martinez v. Ryan, 132 S. Ct. 1309 (2012), which were decided less than a year

prior to the filing of his petition, established a new constitutional right requiring retroactive

application. On October 31, 2012, the post-conviction court rejected the Petitioner’s

arguments and summarily dismissed the petition as untimely. On November 15, 2012, the

Petitioner filed a timely notice of appeal.

ANALYSIS

On appeal, the Petitioner argues that the post-conviction court erred by summarily

dismissing his petition as untimely. He maintains that Frye, Lafler, and Martinez established

a new constitutional right not recognized at the time of the Petitioner’s plea, and retroactive

application is required. He further asserts that the post-conviction court improperly

dismissed his petition without appointing counsel. The State responds that the postconviction court properly dismissed the petition as untimely because the Petitioner failed to

allege any basis for tolling the statute of limitations. The State asserts that the cases relied

upon by the Petitioner did not announce a new constitutional right, but rather applied the

well-established Sixth Amendment right to effective assistance of counsel at the plea

bargaining stage. Upon review, we agree with the State.

Post-conviction relief is only warranted when a petitioner establishes that his or her

conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.

§ 40-30-103 (2006). The Tennessee Supreme Court has held that “[a] post-conviction

court’s findings of fact are conclusive on appeal unless the evidence preponderates

otherwise.” Vaughn v. State, 202 S.W.3d 106, 115 (Tenn. 2006). Questions of law,

however, are reviewed de novo with no presumption of correctness. Id.

A person in custody under a sentence of a court of this state must petition for postconviction 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, “[t]he statute of limitations shall not be tolled for any reason, including any tolling or

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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.

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

statute of limitations for petitions for post-conviction relief, which includes when:

(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 supreme court establishing a constitutional right that

was not recognized as existing at the time of trial[.]

To determine whether a case establishes a new right for constitutional purposes, the test is

whether it “breaks new ground or imposes a new obligation on the States or the Federal

Government,” or whether it “was not dictated by precedent existing at the time the

defendant’s conviction became final.” Oung v. State, No. M2010-02076-CCA-R3-PC, 2011

WL 6382546, at *2 (quoting Teague v. Lane, 489 U.S. 288, 301 (1989)). Similarly, courts

consider “whether the rule was susceptible to debate among reasonable minds as evidenced

by conflicting case law in different jurisdictions.” Oung, 2011 WL 6382546, at *2 (citing

Butler v. McKellar, 494 U.S. 407, 415 (1990) (internal quotations removed)).

This Court recently addressed whether Frye established a new constitutional rule in

Robinson v. State, No. W2012-01401-CCA-R3-PC, 2013 WL 1858628, at *3 (Tenn. Crim.

App. May 2, 2013). There, we concluded “that Frye did not announce a new rule of

constitutional law to be applied retroactively,” and cited numerous other courts that have

reached the same conclusion when addressing this issue. Id. (citing Buenrosto v. United

States, 697 F.3d 1137, 1139 (9th Cir. 2012); In re King, 697 F.3d 1189 (5th Cir. 2012); Hare

v. United States, 688 F.3d 878, 879 (7th Cir. 2012); In re Perez, 682 F.3d 930, 932 (11th Cir.

2012); Marcus Stovall v. United States, Nos. 1:12-CV-337, 1:02-CR-32, WL 392467, at *2

(E.D. Tenn. Jan. 31, 2013)). Our decision in Robinson is not altered by today’s holding, and

we further conclude that Lafler, likewise, does not establish a new constitutional right

requiring retroactive application.

In Frye and Lafler, the Court held that a defendant’s Sixth Amendment right to

counsel is violated where counsel’s deficient performance at the plea bargaining stage results

in the defendant receiving a harsher sentence at trial. See Frye, 132 S. Ct. at 1404, 1410-11

(addressing attorney’s deficient failure to inform defendant of a plea offer); Lafler, 132 S.

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Ct. 1383, 1390-91 (addressing attorney’s deficient advice to reject a plea offer). Contrary

to the Petitioner’s assertions, these cases do not mark the first time that the Court has

addressed ineffective assistance of counsel at the plea bargaining stage, and do not establish

a new constitutional right. Indeed, two terms after the Court’s holding in Strickland v.

Washington, 466 U.S. 668 (1984), the Court applied the Strickland test in the context of

guilty pleas in Hill v. Lockhart, 474 U.S. 52, 58 (1985). There, the Court reasoned that “the

same two-part standard seems to us applicable to . . . the plea process,” and held, “therefore,

that the [Strickland] test applies to challenges to guilty pleas based on ineffective assistance

of counsel.” Id. The recent holdings in Frye and Lafler applied the well-established

Strickland test as extended to the plea process in Hill. See Frye, S. Ct. at 1409 (“This

application of Strickland to the instances of an uncommunicated, lapsed plea does nothing

to alter the standard laid out in Hill.”); Lafler, 132 S. Ct. at 1384 (“The question for this

Court is how to apply Strickland’s prejudice test where ineffective assistance results in a

rejection of the plea offer and the defendant is convicted at the ensuing trial.”); see also,

Buenrostro, 697 F.3d at 1140 (observing that Frye and Lafler repeatedly noted the Court’s

application of well-established law to the facts presented); In re Perez, 682 F.3d at 933

(“Lafler and Frye are not new rules because they were dictated by Strickland.”); Marcus

Stovall, WL 392467, at *2 (“[N]either the Frye nor Lafler case constitute a new rule as they

merely applied the Sixth Amendment right to effective assistance of counsel claims

according to the test articulated in [Strickland] and established in the plea bargaining context

in [Hill].”). We conclude, therefore, that Frye and Lafler did not announce a new

constitutional right, and cannot establish a ground upon which to toll the statute of limitations

under Tennessee Code Annotated 40-30-102(b)(1).

We decline to determine whether Martinez establishes a new constitutional right

requiring retroactive application because the Petitioner hasfailed to provide a sufficient basis

to make that determination. Nevertheless, Martinez cannot establish a ground upon which

to toll the statute of limitations in the present case because it is inapplicable to the facts

presented. Martinez’s narrow holding concerns a procedural default based on ineffective

assistance of counsel at the state collateral proceedings phase. See Martinez, 132 S. Ct. at

1313. There, the Supreme Court concluded that where ineffective assistance claims may

only be raised in collateral proceedings, “procedural default will not bar a federal habeas

court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review

collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.”

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Id. at 1320. The Court was careful to note the narrow nature of its holding, stating “this case

does not concern attorney errors in other kinds of proceedings.” Id. Here, the Petitioner’s

claimsinvolve attorney errors at the plea bargaining phase, and thus, Martinez isinapplicable

Martinez arose in Arizona, where state law allows claims of ineffective assistance of counsel to be raised only

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in state collateral proceedings rather than on direct review. 132 S. Ct. 1309, 1313 (2012).

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to his petition. Therefore, Martinez cannot provide a basis in this case to justify tolling the

statute of limitations under Tennessee Code Annotated 40-30-102(b)(1).

As previously noted, the Post-Conviction Procedure Act stresses that “time is of the

essence” in filing for post-conviction relief. T.C.A. § 40-30-102(a) (2006). In the event that

a petitioner 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). While the Petitioner correctly notesthat the post-conviction court must take “as true”

all facts alleged by the Petitioner, see Tenn. Code Ann. § 40-30-106(f), “[i]f and when a

petition is competently drafted and all pleadings, files and records of the case conclusively

show that the petitioner is entitled to no relief the court may properly dismiss the petition

without the appointment of counsel or conducting a hearing.” Martucci v. State, 872 S.W.2d

947, 949 (Tenn. Crim. App. 1993) (citing T.C.A. § 40-30-109; Stokely v. State, 470 S.W.2d

37, 39 (Tenn. Crim. App. 1971)).

Here, the Petitioner filed his petition for post-conviction relief on August 21, 2012,

seven years after his conviction became final. Taking all allegations in his petition as true,

the Petitioner has failed to provide a basis upon which to toll the statute of limitations.

Therefore, because the Petitioner’s petition does not fit within the exception outlined in

Tennessee Code Annotated section 40-30-102(b)(1), it was properly dismissed by the postconviction court without appointment of counsel or an evidentiary hearing.

CONCLUSION

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

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CAMILLE R. McMULLEN, JUDGE

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