1 Rule 14 provides in perti nent part th

at: “[p]ermission for l

eave to withdra

w as counsel for an indigent defendant after an adverse

final decision in the Cou

rt of Criminal

Appeals and be

fore prepar

ation an d fili ng of an Appl

icati on for Permissi on to Appeal in the S upreme Court must be obtained from the Co urt of Crimina l Appeals b y filing a motion w ith the Clerk of tha t Court not late r than fourteen (14) days a fter the Court’s e ntry of final judgm ent.”



### IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE January 3, 2001 S ession

DEXTER L. WILLIAMS v. STATE OF T ENNESSEE

Appeal by Perm

ission from the Cour

t of Criminal Appeal

s Criminal Court for Blount County No. C-9849 D. Kelly Thomas, Jr., Judge

No. E1999-00871-SC-R11-PC - Filed March 29, 2001

F RANK F. D ROWOTA , III, J., with whom J ANICE M. H OLDER , J., joi ns, dissen ting.

I respectfully dissent from the majority decision. B ecause the petition for post-conviction relief is clearly time-barred by

the one-year statute of limitations, I would reverse the judgment of the Court of Criminal Appeals and affirm the judgment of the trial court which dismissed the petition for post-conviction relief.
Background As stated by the majority, the record re flects that Williams’s conviction and sentence were affirmed by the Court of Criminal Appeals on January 9, 1995. Shortly thereafter, counsel for Williams allegedly mailed a cover letter a

nd a copy of

the decision to

Williams. In the cover letter, counsel allegedly stated that he no longer had the authority to represent Williams “to a further court.” Counsel did not file a motion to withdraw with the Court of Criminal Appeals pursuant to Tennessee Supreme Court Rule 14, however. 1

On October 12, 1 995, approx imately nine months after the Co

urt of Criminal Appe

als rendered its decision, Williams contacted his attorney. At this point, Williams notified his attorney that he had not rec

eived the cover

letter and copy

of the intermedia

te appellate

court decision. As a result of this conversation, on October 18, 199 5, Williams’s appoint

ed counsel filed a

motion to withdraw in the Court of Criminal Appeals citing Tenn. Sup. Ct. R. 14. Th e Cou rt of Criminal Appeals denied the motion as untimely. On November 8 , 1995, Williams’s counsel filed an-2-

application for permission to appealin this Court, which we dismissed as untimely on February 5, 1996.

On October 24, 1996, approximately

eight months after this Court dismissedthe application

as untimely and approximately twenty -one months after the Court of Criminal Appea

ls rendered its decision on direct appea

l, Williams filed a pro se petition for post-conviction relief. The trial court eventually

dismissed the petition because Williams failed to present evidence. Williams appealed, and the Court of Criminal Appeals remande d the case to t he trial court for a hearing, “in

itially to addressthe circumstances o f the petitioner’ s direct appeal, of the applicatio

n for permission to appeal, and of trial counsel’s relationship to the application – as a

ll relate to the issu

e of the statute of limitations.” The

reafter, this Cou

rt granted the St

ate’s applicatio

n for permission to a

ppeal.

Analysis

Tennessee Code A

nnotated § 40-30-

202(a) provides

as follows:
Exceptas provided in subsections (b) and (c), a person in

custody under a sentence of a court of this stat

e must petition forpost-conviction r elief under this p

art within

one (1) year of the date of the final action of the highe st state appellate court to which

an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment became final, or consideration of such pe ti tion shall be barred. The statute of limitations shall not be tolled for any reason, including any tolling or saving provision otherwise available at law or equity. Time is of the essence of the r

ight to file a pet ition for post-con viction relief or

motion to reopen es

tablished by

th i s chapter, and the one-year limitations period is an element of the right to file such an action and is a condit

ion u pon its exercise. Exc ept as specifica

lly provided

in subsections (b) and (c), the right to file a petition for post-conviction relief or a motion to reopen under this chapter shall be extinguished upon the expiration of the limitations period.
(Emphasis added.)

This statute was enac

ted as part of t he 1995 Post-Convic tion Procedures A

ct and became effectiveon May 10, 199 5. Under this statut

e, Williams had until M ay 10, 1996 to timely file a petition for post-convict

ion relief. See 19 95 Tenn. Pub. Acts. ch. 207, § 3; Carter v. State , 952 S.W.2d 417 , 419 (Tenn. 1997). Therefore, Williams’s pro se petition filed October 24, 199 6 i s plainly untimely and should be

dismissed. It wa

s filed approximate

ly twenty-one months after the Courtof Criminal Appea

ls, the highest state appellate court to which an appeal was taken, rendered its decision. Filing an untimely application for permission to appeal to this Cour t does not constitute “an appeal” as that t

erm is u sed in Tenn. C ode Ann. § 40-30-202(a) and therefore does not delay commencement

of the one-year post-conviction statute of limitations. As the State points out, any other conclusion would allow a prisoner to easily defeat the one-y ear limitations period by filing an-3-

untimely application for permission to appeal long after the expiration of the statute of limitations and assert that the one-year post-conviction statute commenced upon this Court’s dismissal of the untimely application.

I do not agree with the majority that a hearing is require d becau se “due process considerations may have tolled the limitations period” in this case. Williams realized perhaps as early as October 12, 1995 that his attorney had failed to timely file an

application for p

ermission to appeal. At that point, Williams still had approximately seven months to timely file a post-conviction petition. He did not do so. Even when this Court, on February 5, 1996, entered an order dismissing his untimely application for permission to appeal, Williams still had approximately three months remaining to file a timely post-conviction pe

tition. Again, he

failed to do so. While

Williams’ s appointed counsel may

have deprived hi

m of his right to

seek second-tier discretionary review, it was Williams’s own dilatory conduct that precluded him from seeking redress for that deprivation.
Despite the majority’s comparison, the situation in this case is starkly differe nt from that alleged in Seals v. State

, 23 S.W.3d 272 (Tenn. 2000). U nlike Se als , there is no allegation that Williams was mentally incompetent and therefore himself

legally incapable of filing a pro se petition for post-conviction relief. Moreover, both Seals , 23 S.W.3d at 278 and the more recent decision, Nix

v. State
, __ S.W.3d __ (Tenn. 2001), appear to require a prisoner to prove inc omp ete ncy throughout the statutory period. In this case, Williams had at least three months and perhaps seven months to timely file a petition for post-conviction relief seeking a delayed appeal. He simply failed to assert his rights within the statut ory time period . There is nothing in the record to show that he was incapable of doing so. In fact, this very action wa s initiated when William s filed a pro se postconviction petition.

The General Assembly has clear ly stated its intent that the post-conviction statute of limitations not be tolled. The r ole of this Court in construing statutes is to ascertain and give effect to legislative intent. See Cronin v. Howe , 906 S.W.2d 910, 91 2 (Te nn. 1995). Where, as here, legislative intent is expressed in a manner devoid of contradiction and ambiguity, there is no room for interpre ta tion or constructions, and courts are not at liberty to depart from the words of the statute. See Schering-Plough Healthcare Produ cts, Inc. v. State Bd. of Equalization , 999 S.W.2d 775, 776 (Tenn. 1999). Wherethe language contained within the four corners of a statute is plain, clear, and unambiguous,

the duty of th

e courts is simple a

nd obvious, "to

say sic lex scripta, and

obey it." Id. (quoting Miller v. Childress , 21 Tenn. (2 Hum.) 320, 321-22 (1841)). Although I agree that tolli ng of the statute of limitations is required by due process where a prisoner establishes incompetency

throughout the sta

tutory peri

od, this is not such a case. Due process is not offended by objectively applying a proc edural bar to a fully co

mpet ent prisoner who simply failed to assert his rights in a timely manner.

The majority

opinion excuses Willia

ms’s failure to fil

e within the one-year period by stating that he was precluded from

acting pro se to pursue post-conviction relief while being represented by counsel. While pers ons represe nted by counsel generally are prec luded from acting p ro se in the

sameactionin which they are represented by counsel, a post- conviction

petition is not the sa

me2 See Pinkston v. State
, 668 S.W.2d 676, 677 (T enn. Crim. App. 1984

); See Tenn. Code Ann.

(continu ed...)

-4- action as an appeal from the conviction. In W at kins v. State , 903 S.W.2d 302, 305 (Tenn. 1995), this Court stated that “the post-conviction procee ding is procedurally separate and apart fr om the original criminal prosecution.” Thecases cited by the majority for

the proposition tha

t defendants

are generally restricted from rep resenting themselves while simultaneously being represented by counsel involved only the criminal prosecution. In State v. Burkhart , 541 S.W.2d 365, 371 (Tenn. 1976), this Court held

that a defendant does not have a right to partic

ipate pro se in his o

wn defense at trial and also simultaneously be represented by counsel. Relying upon Burkhart , th e Court of Criminal Appeals in State v. Muse , 637 S.W.2d 468, 470 (Tenn. Crim. Ap p. 1982) held that b

ecause the defendant was r

epresented by

counsel the trial c

ourt did not err in refusing to consider the pro

se pre-trial motions. Neither of these cases stands for the proposition tha t a defendant who

is represented

by counsel in his direct appeal is precluded from filing a pro se post-convictionpetition.

Moreover, contrary to the conclusion of the majority, nothing in the post-conviction st

atute precluded Willi ams fro m filing a pro se p etition at the same

time his attorney

filed the untimely application for permission to appeal in this Cour t. While the statute clearly sets a one-yea r outside time period beyond which a post-conviction petition may not be filed, there is no explicit language in the statute precluding the filing of a post-conviction petition while an appeal of the conviction is pending. Indeed, con

spicuously a

bsent from t

he maj ority opinion

is any refe

rence to specif

ic statutory language supporting

its conclusion. The majority asserts that “judicial economy dictates that only one appeal should be considered at one time.” While considerations of

judicial economy

are certainly important, such considerations should yield to a cl ear and un ambiguous statute that imposes a one-year outside time requirement upon the filing of a post-conviction petition.

However, even accepting the questionable

proposition thatWilliams could not file a pro se post-conviction petition until the unt imely Rule

11 application wa

s dismissed, it is

undisputed that Williams still had three months remaining to timely file a petition for post-conviction relief. What legal princ

iple r equir es tha t he be give n more time? More specifically, how much more time does due process require

Williams be given? And, fina lly, how much

time must elapse be

fore due proce

ss requires tolling? None of these questions are answered by the majority opinion, y et these answers

are essential to defining the scope and parameter

of the rule it anno

unces. The major

ity decline

s to
answer these questions, e

xpressing a hesita

ncy “to arb itrarily de

termine what leng

th of time

co nstitutes ‘enough time’” for a defendant to pursue post-conviction relief. By this statement the majority reveals its

disregard of the existing one-year time period ado pte d by t he G ener al A sse mbl y. Since Williams had at

least three months of the

statutory on

e-year pe riod remaining t

o file a timely post-conviction petition, I ask again, why he is entitled to more time? In my view, this determinative threshold question

must be answered

before the ana

lysis proce

eds.

I believe the major

ity opinion ca

n be read broadl

y and is l ikely to have far-reaching ramifications.

While I fully

agree with

the majority that under

existing Tennesse

e law, defendan

ts have a due process right to seek second-tier discretionary r eview, 2 like any othe

r right, redre

ss for2 (...continued)

§ 40-30-213(a).

3 The majority decision can also arguably be interpreted as requiring a hearing when ever a pro se prisoner files an untimely post-conviction petition because he or she erroneously calculated the time within which the petition had to be filed.

-5- an alleged denia

l of this right i s sough t by filing a timely petition for post-conviction relief. Likewise, redress for a c

laim of ineffective assistance

of trial or appellate counsel is sought by filing

a timely petition for post-conviction relief. If, as the majority decision holds, a hearing is necessary to determine whether due process requires tolling of the statute of limitations in this case, then a hearing will be necessary to determine whether due process re quires tolling of the statute o f limitations whenever a peti tion asserting in

effective assis

tance of trial co

unsel is untimely

due to counsel’s negligence. 3 Such a rule is clearly inconsistent with the plain languag e of the postconv iction stat ute requiring a trial judge to summarily dismiss an untimely pe tition without appointing counsel and without conducting a hearing. SeeTenn. Code Ann. § 40-30-20 6(b) (“[i ]f it plainly appears from the face of the petition, any annexed

exhibits or the prior proceedings in the case that the petition was not filed . . .within the time set forth in the statute of limitations, . . . the judge shall enter

an order dismissing the petition.”); Tenn. Code Ann. § 40-30-206(f) “If the fac ts alleged, taken as true, fail to show that t he petitioner is entitled to relief or fail to show that the claims for relief have not been waived or previously determined, the petition shall be dismissed.”) (emphasis

added.) By adopt ing a rule that wholly disregards this

clearly expressed legisl

ative intent, the majority has failed to fulfill this Court’s primary role in statutory

construction – ascertaining and giving effect to legislative intent.
Finally, the m ajority decis ion in my view s ignals to t he bench and bar a signifi cant change in Tennessee law. This Court has pre viously held that there is no constitutional right to effective assistance of post-conviction counsel and that counsel’s ineffectiveness does not overcome the procedural bars of waiver and previous determination. See House v. State , 911 S.W.2d 705, 712-713 (Tenn. 1995). In House , counsel for Hous e, a death-row i

nmate, failed to o

ffer proof at hi

s first postconviction hearing and failed to raise several key issues. House filed a subsequent petition alleging that it was not barred by previous determination or waiver because his fa ilure to offer

proof and to raise issues at his initial post-conviction proceeding was due to counsel’s inadequate representation. This Court concluded th at the procedura

l b a rs of previous determination and waiver applied regardless

of counsel’s inef

fectiveness in

the prior post-conviction proceeding. The procedural bars of waiver and previous determination were presumptions under the statute in effect at the time House was decided.

In contrast, the cur

rent statute of limi

tations is a jurisdictional bar to petitions filed beyond the one-year time period. Yet, the majority in this case essentially hol ds that because Williams’s failure to timely file

a post-conviction

petition is a

result of counsel’s negligence, the jurisdictional bar of the statute of limitations does not apply. Therefore, in my opinion, were the rule announced today by the majority applied to the facts in House , a different re sult would obtain. I

f the majority4 I note that the Fl orida cases upon which the majorit y relies support

a broad interpretat

ion, as the most recent decision of the Flor

ida Supreme Court discussi ng those cases makes clear. See William s v. State , 2000 WL 1726782 (Fla. Nov. 22, 2000). The Florida courts have held that du e process mandates that prison ers be allow ed to file and courts be required t

o consider unt

imely post- convicti

on motions and appeals when t he untimeli

ness is due to coun sel’s neglec t.

-6- has no hesitation in concluding that counsel’s negligence can excuse Williams’ s failure to comply withthe statute of limitations – a jurisdictional bar – surely the majority woul d have had no hesitation in concluding that counsel’s negligence precluded app lication of the procedural bars of

w aiver and previous determination in House

. 4 If due process excuses a jurisdictional bar becaus e of counsel’s neg

lect, it would sure

ly excuse a pr

ocedural bar be

cause of counse

l’s neglect.

Moreover, contrary t

o the ma jority’s assertion, there is no distinction between “mere attorney negligence” and “alleged [attorney] misconduct in failing to properly

withdraw from representation and in failing to notify the petitioner.” In fact, “ne glect” means “to omit, fail, or forbear to do a thing that . . . is required to be done.” Black’s Law Dictionary 930 (5 th ed. 1979). The onl y allegat ion in this record is that Williams’s attor ney failed

to do something he

was required to d

o – properly withdraw in accordance with Supreme Court Rule 14. This is textbook negligence.

Nonetheless,

even assuming that the majority’s assertion is true and this case involves more than “mere attorney negligence,” how does that

limit the effect

of the majority opinion? Ineffective assistance of co

unsel is simply deficient

performance th

at results in prejudice. See Goad v. State
, 938 S.W.2d 363, 369 (Tenn. 1996) (emphasis added). Th e c laim does not turn upon whether the deficiency

is intentional, rec

kle ss, or negli gent. Therefore, even assuming that this record shows

more than attorney negligence, which it does not, the eff ect of the majority

opinion remains the

same

–a hearing will be required e very time a

petition is untimely

to determine whet

her the untimeline

ss is attributable to in

effective assis

tance of counse

l.

Fin all y, I fail to u ndersta nd why due pr

ocess requires t

olling of the juris

dictional postconviction statute of limitations when a petition is untimely due to counsel’s neglect, but does not require tolling of the 60-day time period within which to file an application for permission to appeal pursuant to Tenn. R. App. P. 11 w

hen the applicati

on is untimely for

the same reason. For example, since counsel’s a

lleged neglig

ence in this case

related directl

y to the 60-da

y time period and since it was that alleged negligence which deprived Williams of his due process right to seek second-tier discretionary

review, I am

puzzled why this

Court did notissue an order when the untimely Rule 11 application was filed on November 8, 1995, stating that due process required suspension of the 60- day time period. Counsel’s failure to comply with Supreme Court Rule 14 would have bee n apparent from the record, so no further fact-finding would have been ne cessary.

The majority states that the untimely application was dismissed because Tenn. R.

App. P. 2 prohibits this Court from extending the time for filing an application for permission to a

ppeal. While that is certainly

true, it seems irrelevan

t. If due proc

ess requires tolli

ng of a strict one

-year sta tute of limitation s that contains an anti-tolling provision, it also would require extending a rule of appellate procedure despite anothe r rule pr ohibiting extension s. The majority ’s unwillingness t o-7-

adopt such an approach or expla in its refusal to do s

o is perplexing since

such an approac

h would advancejudicial economy , give effect t

o t he strict one-year statute of limitations adopted by the Gener al Assembly, and most importantly, directly address the deprivation that allegedly resulte d from counsel’s ineffectiveness. I find it curious that the majority ha s no hesitation in applying constitutional principles to toll an explicit statut

e, but refuses to a

pply those

same principles to

toll or extend its own pro

cedural rules.

In my view, the

majority ann

ounces a decisio

n that seems to ign

ore legisl ative intent and depart from established l

aw in what I

can only co

nclude is an attempt to spare this prisoner from the results of his own dilatory conduct. To all other prisoners whose post-conviction petitions have been rightly dismissed as time-barr ed, the m ajority’s decision must appear unfair and arbitrary . I respectfully

dissent.
I am authorized to state that Justice Holder concurs in this dissenting opinion.

___________________________________ FRANK F. DROWOTA

, III , JUSTICE