IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

September 12, 2017 Session

MATTHEW B. FOLEY v. STATE OF TENNESSEE

Appeal from the Circuit Court for Rutherford County

No. F-52128 David M. Bragg, Judge

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No. M2016-02456-CCA-R3-PC

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Matthew B. Foley, the Petitioner, filed a petition for post-conviction relief thirteen years 

after he entered a guilty plea; he argued that the statute of limitations should be tolled on 

due process grounds and that the State had breached a material element of his plea 

agreement. The post-conviction court summarily dismissed the petition on the ground 

that the statute of limitations should not be tolled. On appeal, this court held that the 

statute of limitations should be tolled based on due process grounds and remanded the 

case for an evidentiary hearing on the merits. Matthew B. Foley v. State, No. M2015-

00311-CCA-R3-PC, 2016 WL 245857, at *8 (Tenn. Crim. App. Jan. 20, 2016), no perm. 

app. filed. On remand, the post-conviction court again denied relief on the ground that 

the statute of limitations should not be tolled based on due process. We again reverse and 

remand this case for an evidentiary hearing on the merits of the post-conviction relief 

petition. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and 

Remanded

ROBERT L. HOLLOWAY, JR., J., delivered the opinion of the court, in which JOHN 

EVERETT WILLIAMS and ROBERT H. MONTGOMERY, JR., JJ., joined.

Wesley B. Clark, Nashville, Tennessee, for the appellant, Matthew Benjamin Foley.

Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel;

Jennings H. Jones, District Attorney General; and Hugh Ammerman, Assistant District 

Attorney General, for the appellee, State of Tennessee.

11/01/2017
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OPINION

I. Factual and Procedural Background

On February 28, 2002, Matthew B. Foley, the Petitioner, who was fifteen years of 

age at the time of the offense, entered a negotiated plea of guilty to a reduced charge of 

facilitation of especially aggravated kidnapping.1 At that time, facilitation of especially 

aggravated kidnapping was not listed as an offense requiring registration under the 

Sexual Offender Registration Act (the Act), and at the plea submission hearing the State 

noted that it was of “major benefit” to the Petitioner to plea to this offense because he 

would not be required to register as a sex offender. The trial court stated that the 

Petitioner would “be required to follow the requirements for a sex offender, although [he 

was] not going to be officially a sex offender.” 

On June 22, 2002, the Act was amended to add facilitation of especially 

aggravated kidnapping as a sexual offense requiring registration; on July 1, 2004, the Act 

was again amended to remove facilitation of especially aggravated kidnapping from the 

Act. In the fall of 2011, while the Petitioner was incarcerated in a state prison serving the 

remainder of his sentence for especially aggravated kidnapping after violating his 

probation, he was informed that he needed to register as a sex offender. The Petitioner 

refused and was arrested upon his release from state prison. However, when the

Petitioner was able to show through counsel that he was not statutorily required to 

register as a sex offender, the State dismissed the charge on April 3, 2012. In May 2012, 

Detective Jennifer West of the Murfreesboro Police Department told the Petitioner that he 

was required to register. The Petitioner told Detective West that he was not required to 

register, however, on May 25, 2012, he signed a Tennessee Bureau of Investigation 

Sexual Offender Instructions Form and began reporting to Detective West. Again, at this 

time, the Petitioner was not required to register under the statute. On July 1, 2012, the 

Act was again amended to add facilitation of especially aggravated kidnapping as a 

sexual offense requiring registration. On September 10, 2012, the Petitioner was again 

arrested for violation of the sex offender registry. He again hired private counsel who, on 

August 19, 2013, was successful in having the charge retired. In 2014, the Petitioner was 

again arrested for violating the terms of the registry; he later pled no contest to two 

counts of violating the registry.

 

1 To assist in the resolution of this proceeding, we take judicial notice of the record from the 

Petitioner’s first appeal from the denial of post-conviction relief. See Tenn. R. App. P. 13(c); State v. 

Lawson, 291 S.W.3d 864, 869 (Tenn. 2009); Delbridge v. State, 742 S.W.2d 266, 267 (Tenn. 1987); State 

ex rel. Wilkerson v. Bomar, 376 S.W.2d 451, 453 (Tenn. 1964).
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Post-Conviction Proceedings

The Petitioner filed a petition for post-conviction relief on January 7, 2015. In his 

petition, the Petitioner alleged that “[b]y modifying the Sex Offender Registration Act to 

include the offense of Facilitation of Especially Aggravated Kidnapping and forcing [the] 

Petitioner to comply with the sex offender registry, the State of Tennessee ha[d] 

effectively violated a material condition of the plea agreement entered on February 28, 

2002.” Additionally, the Petitioner alleged that the State of Tennessee “violated [the 

Petitioner’s] Due Process rights under the 5th and 14th amendments to the U.S. 

Constitution and Article I, § 8 of the Tennessee Constitution, and rendering [the] 

Petitioner’s guilty plea involuntary.”

The post-conviction court summarily denied the post-conviction relief petition,

finding that the petition was barred by the one-year statute of limitations. The Petitioner 

appealed, and this court reversed and remanded for “an evidentiary hearing in which to 

present proof as to his post-conviction grounds for relief.” Matthew B. Foley, 2016 WL 

245857, at *8 (emphasis added). Our court stated the following:

We find this to be one of those rare unconscionable cases that cries 

out for due process tolling. See, e.g., Dennis Cedric Woodard, Jr., v. State, 

No. M2013-01857-CCA-R3-PC, 20014 WL 4536641 (Tenn. Crim. App. 

Sept. 15, 2014) (concluding that later-arising claim involving attorney 

misconduct necessitated tolling of the limitations period). However, we 

note that our determination that the Petitioner is entitled to a hearing is not 

to be read as indicative of the merit of the Petitioner’s claims, which will be 

analyzed by the post-conviction court. Id. We also guide the lower court to 

make the appropriate findings in ruling on the petition. Id. Accordingly, 

this case is reversed, and the Petitioner must receive an evidentiary hearing 

in which to present proof as to his post-conviction grounds for relief.

Matthew B. Foley, 2016 WL 245857, at *8. 

II. Analysis

On appeal, the Petitioner argues that due process concerns require tolling of the 

post-conviction statute of limitations, that the State breached its plea agreement with the 

Petitioner, and that enforcement of the registry against the Petitioner violated the Ex Post 

Facto clause. The State contends that the Petitioner is not entitled to due process tolling 

of the statute of limitations because he has not diligently pursued his post-conviction 

rights and no extraordinary circumstance prevented him from timely filing his petition. 
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On remand, it appears that the post-conviction court again focused solely on 

whether the statute of limitations should be tolled in the Petitioner’s case on due process 

grounds. In its order filed on November 14, 2016, the post-conviction court stated: 

“After an examination of the Petition, the record as a whole, transcripts, and 

correspondence relating to the claims, this Court DENIES the Petitioner’s request for 

failure to file within the statutory time limit and for failure to state any basis for tolling 

the Statute of Limitations.” The post-conviction court concluded that the Petitioner had 

not pursued his claim diligently and that no extraordinary circumstance existed to warrant 

due process tolling of the statute of limitations. The post-conviction court did not reach 

the merits of the petition. 

However, in this court’s previous opinion, a panel of this court determined that the 

Petitioner’s claims were “later-arising” and concluded that “it was only when the State 

sought to apply the act’s provisions to the Petitioner that it possibly breached a ‘material 

term’ of the plea agreement triggering the Petitioner’s responsibility to pursue his rights 

diligently.” Id. at *5, 7. Further, our court concluded that “the Petitioner was diligently 

pursuing his rights in accordance with the Whitehead-Holland test.”

2

 Id. at *8. Because 

our court, in Matthew B. Foley, explicitly concluded that due process concerns should toll 

the statute of limitations in the Petitioner’s case and remanded the case for an evidentiary 

hearing on the merits of the Petitioner’s petition, we again remand this case for an 

evidentiary hearing on the merits. On remand, the post-conviction court should make

findings of fact and conclusions of law relating to the claims for relief in the petition.

III. Conclusion

For the aforementioned reasons, the judgment of the post-conviction court is 

reversed and remanded for an evidentiary hearing on the merits of the Petitioner’s claims

for post-conviction relief.

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ROBERT L. HOLLOWAY, JR., JUDGE

 

2

See Whitehead v. State, 402 S.W.3d 615, 622–23 (Tenn. 2013), Holland v. Florida, 560 U.S. 

631, 648–49 (2010).