### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs O ctober 15, 2003
JOSEPH MARTIN THU RMAN v. STAT E
Post-Conviction Appeal from the Circuit Court for Marion County

No. 5556 Buddy D. Perry, Judge

No. M2002-00637-CCA-R3-PC - Filed February 3, 2004

The petitioner, Joseph Martin Thurman, appeals the dismissal of his petition for p ost -conviction relief based upon its filing bey ond the statute of limitations. He argues that du e proces s considerations tolled the limitations period of Tennessee Code Annotated section 40-30-102(a) a nd that the trial court erred

in dismissin g the pe

tition witho

ut an evid entiary hearing . Beca

use the tim

e for filing the petition cannot be tolled under the circumstances presented in this case, we conclude that the petition for post-conviction relief was untimely and we affirm the decision of the trial cou rt.

Tenn. R. App.P. 3 Appe al as of Right ; Judgme nt of the Tri al Court is

Affirme d.

J ERRY L. S MITH , J., delivered the opinion of the court, in which D AVID G. H AYES , and T HOM AS T. W OODA LL , JJ., joined. Howard L. Upchurc

h, Pikeville, Tennessee, for the appellant, Joseph Martin Thurman.

Paul G. Summers , Attorney Genera l & Repor ter; Jennif

er L . Bledso e, Assista

nt Attorne

y General ; J. Michael Taylor, District Attorney General, for the appellee, State of Te nnessee.

OPINION

Factua l Background

A Marion County jury

convicted the petitioner of first degree murder and arson, and he was sentenced to life in p

rison for first degree murder

an d t hr ee yea rs fo r a rs on , t o b e s er ve d c on cu rr en tl y. This Court affirmed his convictions on direct appeal. See State v. Joseph Martin Thurman , No. 01C01-9706-CC-00231, 1999 WL 173676 (Tenn. Crim. App. at Nashville, Mar. 31, 1999), perm. to appeal denied , (Tenn. Oct. 4, 1999). The petitioner filed a petition for post-conviction relief on1 Te nnesse e Co de A nnota ted sec tion 40 -30-2 02 w as renu mbe red se ction 4 0-30 -102 in 200 3.
-2- January 18, 2001, and an amendment to the petition was filed November 5, 2001, along with an affida vit executed

by t he petitio ner. The

affida vit claime d that his tr

ial attor ney failed to communic ate the status of the application for permissionto appea l to the supreme court and that he didnot learn of the supreme court’s denial of the application for pe rmission to appeal until June of 2000, wh en hi s f am il y co nt ac te d a no th er at to rn ey. The State filed a motion to dismiss the petition
as un ti me ly. Following a hearing on the motion to dismiss, the trial court dismissed the petition. The trial court found that th e statute of limitations for filing the petition for post-conviction relief began to run on October 5, 1999, and expired one yea r later pursuant to Tennessee Code Annotated section 4 0-30-102 (a). The lower co urt found that: [A]ssuming tha t the actions or inaction of petitioner’s former counsel did in fact result in petitioner not becoming aware of the final actions of the Tennessee Appellat e Courts in his case until June of 2000, the petitioner would h ave still had until the first week of October of 2000 in which to file for pos t-conviction relief under T.C.A. 40-30-202(a), 1 but did not do so. The Court does not find that the petitione r was de prived of his rights to the due process of law in this case, and that consideration of his pet

ition for p ost -con viction relief is barred by the limitation period of T.C.A. 40-30-202(a). The petitioner

appeals , arguing that

the trial court er red in dismissing the petition without
an evidentiary he aring. He claims tha t he should be entitled to maintain a post-conviction action
even though th

e statutor y tim e to file t he petitio n has expir

ed. For authority , the petitioner re li e s primaril y on Williams v. Sta

te , 44 S.W.3d 464, 467-68 (Tenn. 2001) and Seals v. Sta te , 23 S.W.3d 272, 279 (Tenn. 2000), in which the supreme court held that the strict application of the statute of limitations apply

ing to pos t-convic tion petiti ons cannot deny a petitioner the “rea sonable o pportunit y to assert a claim in a

meaning ful time

and manne

r.” The Stateargue s that the p etitioner has set f orth
no factua l basis to toll the statute of limitations and that the trial court did not err in dismissing the petition for post-conviction relief. We agree.

In addition to fixing a one-yea r statute of limitations for the filing of a post -conviction petition, Tennessee Code Annotated section 40-30-102(a) contains a statement of legislative policy with resp ect to pos t-convic tion proc eeding s. The sta tute provides:

The statute

of limitations shall not be tolled forany rea son, including any tolling or saving provision otherwise available at law or eq ui ty. Time is of the essence of the right to file a petition for post-conviction relief or a motion to reopen established by this chapter , and the o ne-y ear limita tions per iod is an eleme

nt of the r ight to f ile such
an action a

nd is a condition upon

its exerci se. Excep t as spec ific ally provid ed in subsections (b) and (c), the right to file a petiti on for post-conviction relief or a motion to reope

n under th is chapte r shall be extinguished upon the expiration of the limitations period.-3-

Tenn. Code Ann. § 40-30-102(a) (2003).
Thus, it is apparent that the legislature intended to definitively restric t, rather than expand, the time frame within which post-conviction proceedings must be initiated. The only exceptions to the oneyear sta tutory period for f

iling a petition for post-conviction relief are set forth in Tennessee Code Annotated section 40-30-102(b), and inclu de: (1 ) clai ms bas ed on a n appe llat e ruli ng conc ernin g a constitutional right not recognized at the time of the trial and given retroactive effec t by the appe llate courts ; (2) claims based upon newly discovered scientific evidence which establishes that the petitioner is actually innocent

of the crime; and (3) claims which arise out of a situation where the petitioner received an enhanced sente nce for a crime based on previous convictions which were later held to be invalid. See Tenn. Code Ann. § 40-30-102(b ) (200 3). The petitioner herein has not alleged the existence of any of

the exceptions embodied in Tenne ssee Code Ann otated section 40-30- 102(b).
Further, althoug

h the supr eme cour t has also recog nized cer

tain nar row fac tual sce

narios in which the application of the one-y ear sta tute of lim

itations w ould

violate a petitione r’s due p rocess guara ntees, the test is “whethe

r the time period pr ovides an appli cant a r easonab le opport unity to have the claimed issue heard and determined.” Seals , 23 S.W.3d at 278. Additionally, this Court has held that a petitioner’s personal ignora nc e of post-conviction procedures, “even whe n alleged to stem from

an attor ney ’s n egligent

failure to render advice to the petitioner, does not toll the running of the statute” of limitations. State v. Phillips , 904 S.W.2d 123, 124 (Tenn. Crim . App. 199 5). In the case herein, this Court affirmed the petitioner’s convictions on Mar ch 31, 1999, and the supreme court denied his application for permission to appeal on October 4, 1999. The petitioner learned of the de nial of the applica tion for p ermission

to appeal in June of 2000, several months prior to the expiration of the statute of limitations. The petition for post-conviction relief was not filed until January 18, 2001, more than thre e months after the expiration of the sta tute of lim

itations. We conclude that the pet ition for post- convicti on relie f was untimely under the

circumst ances. Accordingly , we affirm the judgment of the trial court dismissing the petition.

________________________________________ JERRY L. SMITH, JUDGE