IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

May 1, 2013 Session in Knoxville

DERRICK BRANDON BUSH v. STATE OF TENNESSEE

Appeal by Permission from the Court of Criminal Appeals

Criminal Court for Sumner County

No. 308-2011 Dee David Gay, Judge

No. M2011-02133-SC-R11-PC - Filed January 28, 2014

This appeal concerns the retroactive application of Ward v. State, 315 S.W.3d 461 (Tenn.

2010), in which this Court held that trial courts have an affirmative duty, before accepting

a guilty plea to a crime carrying a mandatory sentence of community supervision for life, to

inform the defendant desiring to plead guilty of the consequence of lifetime supervision. In

April 2011, a prisoner, who pleaded guilty to two counts of attempted rape in December

2000, filed a petition for post-conviction relief in the Criminal Court for Sumner County

alleging that his guilty pleas were not knowingly or intelligently entered because he had not

been informed that he would be subject to lifetime community supervision following his

release from prison. The trial court decided that the Post-Conviction Procedure Act’s statute

of limitations should be tolled on due process grounds and that the prisoner was entitled to

post-conviction relief because Ward v. State should be applied retroactively. The Court of

Criminal Appeals reversed, finding no grounds for due process tolling and that Ward v. State

did not announce a new rule of constitutional law requiring retroactive application. Bush v.

State, No. M2011-02133-CCA-R3-PC, 2012 WL 2308280 (Tenn.Crim. App.June 15, 2012).

We granted the prisoner’s appeal to clarify the standards governing retroactive application

of this Court’s authoritative interpretations of the Tennessee Constitution and to resolve

related issues in the interpretation of the Post-Conviction Procedure Act. In accordance with

the retroactivity framework for post-conviction proceedingsthe Tennessee General Assembly

codified in Tenn. Code Ann. § 40-30-122 (2012), we have determined that our holding in

Ward v. State does not require retroactive application and, therefore, that the prisoner is not

entitled to tolling under Tenn. Code Ann. § 40-30-102(b)(1) (2012). We also hold that the

prisoner’s case does not warrant due process tolling. Accordingly, we affirm the judgment

of the Court of Criminal Appeals.

Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal

Appeals Affirmed
WILLIAM C. KOCH,JR.,J., delivered the opinion of the Court, in which GARY R. WADE, C.J.,

JANICE M. HOLDER, CORNELIA A. CLARK, and SHARON G. LEE, JJ., joined.

Branden Bellar, Carthage, Tennessee, for the appellant, Derrick Brandon Bush.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General;

John H. Bledsoe, Senior Counsel; L. Ray Whitley, District Attorney General; Sallie Wade

Brown, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

I.

On December 4, 2000, eighteen-year-old Derrick Brandon Bush pleaded guilty to two

counts of attempted rape in the Criminal Court for Sumner County. The written plea

agreement reflected Mr. Bush’s understanding (1) that each count carried a minimum penalty

of three years and a maximum penalty of six years, (2) that, if his plea was accepted by the

trial court, the sentence for each count would be four years, (3) that the sentences would be

served consecutively, resulting in an effective sentence of eight years, (4) that he would serve

one year in the Sumner County jail, and (5) that he would serve the remaining seven years

on “state probation.”

During the submission hearing, both the prosecutor and the trial court described Mr.

Bush’s sentence as “an effective eight-year sentence.” When the trial court asked Mr. Bush,

“So what is the effective sentence that you’re getting here today?” Mr. Bush answered,

“Eight years.” Accepting Mr. Bush’s guilty plea, the trial court declared:

[T]he agreed sentence on each of those [counts] will be four

years. They will be consecutive to each other for an eight-year

sentence, one year in jail, the balance on probation, and I have

gone over with you those conditions. You may not appeal from

this.

No mention was made during the hearing that, by pleading guilty to attempted rape, Mr. Bush

would be subject to community supervision for life in accordance with Tenn. Code Ann. §

39-13-524(a)(3) (2010 & Supp. 2013).

Thereafter, the State prepared the judgment documents relating to Mr. Bush’s

December 4, 2000 guilty pleas and submitted them to the trial court for approval and

signature. The line for the signature of Mr. Bush’s lawyer was left blank, and the record does

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not reflect that either Mr. Bush or his attorney participated in preparing the judgments or that

they were even aware of their contents. The judgment form for count one, filed on December

11, 2000, stated that Mr. Bush would be placed on “lifetime supervision upon release.”

Mr. Bush did not learn that he had been placed on community supervision for life until

sometime after he had been released from custody. He did not immediately challenge this

additional restraint after he learned about it.

Years passed, and on July 7, 2010, this Court filed its opinion in Ward v. State, 315

S.W.3d 461 (Tenn. 2010). We held in Ward that a sentence to lifetime community

supervision “is a direct and punitive consequence of a plea of guilty to the crimes enumerated

in Tennessee Code Annotated section 39-13-524(a).” Ward v. State, 315 S.W.3d at 476. We

also held that “trial courts have an affirmative duty to ensure that a defendant is informed and

aware of the lifetime supervision requirement prior to accepting a guilty plea.” Ward v.

State, 315 S.W.3d at 476.

We recognized this duty because it preserves the integrity of plea bargains in

Tennessee courts and prevents violations of the constitutional right to due process by

ensuring that any plea represents a defendant’s voluntary and knowing choice between the

essential terms of the plea agreement and a contested trial. Ward v. State, 315 S.W.3d at 476;

see also State v. Nagele, 353 S.W.3d 112 (Tenn. 2011) (permitting a defendant to withdraw

his guilty plea on the grounds of a Ward violation); Calvert v. State, 342 S.W.3d 477 (Tenn.

2011) (permitting a defendant to withdraw his guilty plea on the grounds of ineffective

assistance of counsel when counsel failed to inform the defendant of lifetime community

supervision).

On April 25, 2011, Mr. Bush filed a pro se petition for relief under the PostConviction Procedure Act. The Act permits a state prisoner to seek relief from a

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“conviction or sentence [that] is void or voidable because of the abridgment of any right

guaranteed by the Constitution of Tennessee or the Constitution of the United States.” Tenn.

Code Ann. § 40-30-103.

“Time is of the essence” when pursuing relief under the Post-Conviction Procedure

Act. Tenn. Code Ann. § 40-30-102(a). Accordingly, prisonersseeking post-conviction relief

must file their petitions within one year from the date on which the judgment of conviction

becomes final or from the date of the last state court action on direct appeal. Tenn. Code

Ann. § 40-30-102(a).

Tenn. Code. Ann. §§ 40-30-101 to -122 (2012 & Supp. 2013). 

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However, the General Assembly has provided three express exceptions to this statute

of limitations. The first of these exceptions permits post-conviction courts to consider an

untimely petition for post-conviction relief when

[t]he 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.

Tenn. Code Ann. § 40-30-102(b)(1). With regard to this exception, Tenn. Code Ann. § 40-

30-122 states that “[a] new rule of constitutional criminal law shall not be applied

retroactively in a post-conviction proceeding unless the new rule . . . requires the observance

of fairness safeguards that are implicit in the concept of ordered liberty.” We will return to

Tenn. Code Ann. § 40-30-122 later in the opinion.

In his post-conviction petition, Mr. Bush characterized Ward v. State’s holding as a

new rule of constitutional criminal law requiring retroactive application. He also asserted

that his guilty plea in 2000 was not voluntary or knowing because he was not aware that he

would be subject to community supervision for life. In the alternative, Mr. Bush argued that

the Post-Conviction Procedure Act’s one-year statute of limitations should be tolled on due

process grounds.

The post-conviction court held an evidentiary hearing on September 8, 2011. At the

conclusion of the hearing, the court found that: (1) “the fact that the defendant was required

to be on supervision for life was never, ever revealed to the defendant by his attorney,” (2)

“during the submission hearing the fact that he would be on supervision for life was not

mentioned,” and (3) “lifetime supervision on release was added [to the judgment], but it is

also clear that the defendant never, ever saw this provision.” Based on these findings, the

trial court determined that the statute of limitations should be tolled on due process grounds

and that Mr. Bush’s guilty plea was not voluntary and knowing because “[t]he Defendant was

not informed of the mandatory requirement for Community Supervision for Life.”

The State appealed, and the Court of Criminal Appeals reversed the post-conviction

court’s judgment. Bush v. State, No. M2011-02133-CCA-R3-PC, 2012 WL 2308280, at *11

(Tenn. Crim. App. June 15, 2012). The appellate court concluded that Mr. Bush did not

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qualify for due process tolling of the statute of limitations. Bush v. State, 2012 WL 2308280,

at *9-10.

The Court of Criminal Appeals also determined that our holding in Ward v. State did

not require retroactive application even though it announced a new rule of constitutional law.

In conducting its retroactivity analysis, the appellate court attempted unsuccessfully to

reconcile the “differing statutory and common law approaches” to retroactivity. Bush v.

State, 2012 WL 2308280, at *3. Accordingly, the appellate court analyzed the retroactive

application of Ward v. State using two different frameworks. The first approach was based

on Tenn. Code Ann. § 40-30-122. The second approach was based on Meadows v. State, 849

S.W.2d 748, 755 (Tenn. 1993). Ultimately, the Court of Criminal Appeals decided that

neither approach required that Ward v. State be applied retroactively. Bush v. State, 2012

WL 2308280, at *9.

We granted Mr. Bush’s Tenn. R. App. P. 11 application for permission to appeal to

address the confusion noted by the Court of Criminal Appeals regarding retroactivity

determinations in post-conviction proceedings. Arguably, the retroactive effect of a

constitutional ruling is a purely judicial question. Nevertheless, in the limited context of

post-conviction proceedings, we recognize that the General Assembly has adopted a

retroactivity standard that is codified at Tenn. Code Ann. § 40-30-122. Although this Court

previously adopted a different retroactivity standard, we now instruct Tennessee’s courts to

use Tenn. Code Ann. § 40-30-122 to determine whether criminal procedural rulings

emanating from the Constitution of Tennessee apply retroactively to post-conviction

petitioners. Applying Tenn. Code Ann. § 40-30-122’s retroactivity standard, we have

determined that our holding in Ward v. State does not require retroactive application. We

also find that Mr. Bush’s case does not warrant due process tolling of the post-conviction

statute of limitations.

In the remainder of this opinion, we will (1) discuss our holding in Ward v. State; (2)

briefly explore the history of the retroactivity of new constitutional rules and the origin of

Tennessee’s two retroactivity standards; (3) explain the standard that shall apply to future

cases; (4) apply that retroactivity standard to our decision in Ward v. State; and then (5)

determine whether Mr. Bush’s case warrants due process tolling of the post-conviction

statute of limitations.

II.

The case of Marcus Ward is very similar to Mr. Bush’s case. On June 8, 2005,

Marcus Ward pleaded guilty to a variety of charges that included one count of aggravated

sexual battery. Under Tennessee law, a person convicted of this crime must be placed on the

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internet sex offender registry and receive a mandatory “sentence of community supervision

for life.” Tenn. Code Ann. §§ 39-13-524 to -526 (2010 & Supp. 2013); 40-39-201 to -215

(2012 & Supp. 2013). However, the trial court did not tell Mr. Ward that his plea would

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result in these two consequences. On July 11, 2005, Mr. Ward filed a timely petition for

post-conviction relief. He alleged that his plea was not “knowing and voluntary” because

he was not aware of the plea’s full consequences. The trial court decided that the sex

offender registry and lifetime community supervision were “collateral” consequences of the

plea, rather than “punitive” and “direct” consequences, and that Mr. Ward was therefore not

entitled to relief. Ward v. State, 315 S.W.3d at 464.

In our analysis of Mr. Ward’s case, we noted that when a defendant enters a guilty

plea, he or she waives several constitutional rights, including the right against

self-incrimination, the right to a trial by jury, and the right to confront his or her accusers.

To pass constitutional muster under the Due Process Clause of the United States

Constitution, a guilty plea must be entered knowingly, voluntarily, and intelligently. To meet

this standard, a plea must represent a voluntary and intelligent choice among the available

alternatives. Ward v. State, 315 S.W.3d at 465.

We also explained that a plea is not voluntary unless the defendant understands the

consequences of the plea and that a plea is not voluntary if it results from ignorance,

misunderstanding, coercion, inducements, or threats. Thus, we explained that the record of

a plea colloquy must affirmatively demonstrate that the defendant was aware of the

significant consequences of the plea. Otherwise, the plea would not amount to an

“intentional abandonment of a known right.” Accordingly, we held that the trial court must

discuss the consequences of the plea with the defendant to ensure the defendant “has a full

understanding of what the plea connotes and of its consequences.” Ward v. State, 315

S.W.3d at 465-66.

While registration as a sex offender is a collateral consequence of a conviction, we

held that a mandatory sentence of lifetime community supervision was a direct and punitive

consequence of Mr. Ward’s guilty plea. We explained why lifetime supervision is a more

grievous sanction than “collateral” consequences such as sex offender registration and a

defendant’s parole requirements. We also explained that lifetime community supervision is

“punitive in effect,” because it requires the defendant

We note the possibility that “community supervision for life” could potentially end after fifteen 2

years. According to Tenn. Code Ann. § 39-13-525 (2010), “[a]fter a person sentenced to community

supervision pursuant to [Tenn. Code Ann.] § 39-13-524 has been on supervision for a period of fifteen (15)

years, the person may petition the sentencing court for release from community supervision.”

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to regularly report to a parole officer who is granted wide

discretion in imposing supervisory requirements, and to pay a

monthly fee. The imposition of lifetime supervision and the

attendant consequences placed on an individual after having

served his or her entire sentence of incarceration and/or regular

parole are significant.

Ward v. State, 315 S.W.3d at 474. Because “lifetime supervision imposes an additional set

of restrictions and requirements on the offender after serving his or her entire sentence of

incarceration,” we found that “postrelease supervision is a significant, punitive component

of [a] defendant’s sentence.” Ward v. State, 315 S.W.3d at 475-76 (quoting People v. Goss,

733 N.Y.S.2d 310, 314 (App. Div. 2001)).

We note at this juncture that Mr. Bush’s plea colloquy suffered from the same defects

as Mr. Ward’s. The post-conviction court found that (1) “the fact that the defendant was

required to be on supervision for life was never, ever revealed to the defendant by his

attorney,” (2) “during the submission hearing the fact that he would be on supervision for

life was not mentioned,” and (3) “lifetime supervision on release was added [to the

judgment], but it is also clear that the defendant never, ever saw this provision.” Appellate

courts are bound by the post-conviction court’s underlying findings of fact unless the

evidence preponderates against them. Whitehead v. State, 402 S.W.3d 615, 621 (Tenn.

2013); Dellinger v. State, 279 S.W.3d 282, 294 (Tenn. 2009). The State does not challenge

these findings. The inescapable conclusion is that when Mr. Bush pleaded guilty, he was

ignorant of the true sentence that would be imposed, and his constitutional right to due

process of law was violated by the acceptance of this “involuntary” plea.

The difference between Mr. Bush’s case and Mr. Ward’s case is a difference in

timing. Mr. Ward sought post-conviction relief one month after he was sentenced. Mr. Bush

did not petition for relief until almost ten years after the judgment against him was finalized.

Mr. Bush did, however, file his petition less than one year after we decided Ward. Under

Tennessee’s Post-Conviction Procedure Act, no court may consider Mr. Bush’s late petition

unless Ward announced a new rule of constitutional criminal procedure that requires

retroactive application. Tenn. Code Ann. § 40-30-102(b)(1). Accordingly we will now

address the background and contours of the retroactivity of new constitutional rules.

III.

The United States Supreme Court fashioned the doctrines governing the retroactivity

of new constitutional rules in the context of federal habeas corpus challenges to the

constitutionality of criminal convictions in state courts. During the Twentieth Century, the

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federal courts recognized or established many rules of constitutional criminal procedure and

routinely applied these rules retroactively to state prisoners seeking federal habeas corpus

review of their convictions.

The Court eventually decided that, in many circumstances, collateral review of state

criminal convictions would be better left to the state courts. Therefore, beginning in 1965,

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the Court began to narrow the scope of habeas corpus review based largely on concerns

relating to “comity, federalism, and finality of judgment.” One of the ways the Court

4

narrowed the scope of federal habeas corpus review was to modify the principles governing

the retroactivity of new constitutional rules.

In Linkletter v. Walker, 381 U.S. 618 (1965), the Court determined for the first time

that, although new constitutional criminal rules should always apply retroactively to cases

on direct review, they need not necessarily apply retroactively to all cases on collateral

review. Deciding that its prior practice of universal retroactivity was not based on anything

in the Constitution, the Court held that “the Constitution neither prohibits nor requires

retrospective effect. . . . ‘We think the Federal Constitution has no voice upon the subject.’”

Linkletter v. Walker, 381 U.S. at 629 (quoting Great Northern Ry. Co. v. Sunburst Oil &

Refining Co., 287 U.S. 358, 364 (1932)). Accordingly, the Court adopted a multifactor test

for determining which rules of constitutional criminal procedure should apply retroactively

to cases on collateral habeas corpus review.

5

The watershed case on the federal retroactivity doctrine is Teague v. Lane, 489 U.S.

288 (1989), in which the Court announced the current federal standard. In Teague v. Lane,

an all-white jury convicted an African-American defendant of three counts of attempted

murder and other related crimes. Over Mr. Teague’s objections, the prosecutor used all ten

of his peremptory challenges to strike potential jurors who were African-American. The

Illinois state courts upheld the conviction, and Mr. Teague filed a petition for writ of habeas

See generally Mary C. Hutton, Retroactivity in the States: The Impact of Teague v. Lane on State

3

Postconviction Remedies, 44 Ala. L. Rev. 421 (1993).

Max Rosenn, The Great Writ-A Reflection of Societal Change, 44 Ohio St. L.J., 337, 364 (1983).

4

The Linkletter Court framed its retroactivity test as follows: 5

Once the premise is accepted that we are neither required to apply, nor prohibited from

applying, a decision retrospectively, we must then weigh the merits and demerits in each

case by looking to the prior history of the rule in question, its purpose and effect, and

whether retrospective operation will further or retard its operation.

Linkletter v. Walker, 381 U.S. at 629.

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corpus in the United States District Court. Teague v. Lane, 489 U.S. at 292-93. In his

petition, Mr. Teague relied on the recent decision in Batson v. Kentucky, 476 U.S. 79 (1986),

that provided greater opportunities for criminal defendants to challenge the type of

discriminatory jury selection practices that allegedly tainted his trial.

When Teague v. Lane reached the United States Supreme Court, the Court declined

to hold Illinois to the standard it had announced in Batson v. Kentucky, based on

considerations of federalism and comity. Instead, the Court announced a new, narrower

federal retroactivity standard that preserved a high degree of deference to the states. The

Court both defined which rules should be considered “new,” and which new rules warranted

retroactive application. The Court described a new rule as follows:

It is admittedly often difficult to determine when a case

announces a new rule, and we do not attempt to define the

spectrum of what may or may not constitute a new rule for

retroactivity purposes. In general, however, a case announces

a new rule when it breaks new ground or imposes a new

obligation on the States or the Federal Government. To put it

differently, a case announces a new rule if the result was not

dictated by precedent existing at the time the defendant’s

conviction became final.

Teague v. Lane, 489 U.S. at 301 (citations omitted). The Court also limited the retroactive

scope of “new” constitutional rules by holding:

First, a new rule should be applied retroactively if it places

certain kinds of primary, private individual conduct beyond the

power of the criminal law-making authority to proscribe.

Second, a new rule should be applied retroactively if it requires

the observance of those procedures that are implicit in the

concept of ordered liberty.

Teague v. Lane, 489 U.S. at 307 (internal quotation marks and citations omitted).

In addition, the Court explained that procedures that are “implicit in the concept of

ordered liberty” should be understood as “watershed rules of criminal procedure” or “those

new procedures without which the likelihood of an accurate conviction is seriously

diminished.” The Court believed it was “unlikely that many such components of basic due

process have yet to emerge.” Teague v. Lane, 498 U.S. at 312, 313. We will return to “the

concept of ordered liberty” later in this opinion.

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Accordingly, Teague v. Lane replaced the prior standard for determining retroactivity

in federal habeas corpus review of state convictions with a standard that grants significant

deference to state courts. In other words, Teague v. Lane stands most clearly for the

proposition that federal habeas corpus courtsshould grant relief only when state courtsrefuse

to honor clearly-established rights provided by the United States Constitution or federal law.

See, e.g., Richard H. Fallon Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and

Constitutional Remedies, 104 Harv. L. Rev. 1731, 1816 (1991).

Almost twenty years after the Teague v. Lane decision, the United States Supreme

Court emphasized in Danforth v. Minnesota, 552 U.S. 264 (2008), that the retroactivity rule

in Teague v. Lane was not binding on state courts. The Court explained that the retroactivity

test was binding only on federal courts conducting habeas corpusreview of state convictions,

Danforth v. Minnesota, 552 U.S. at 277-81, and then added:

[T]he remedy a state court chooses to provide its citizens for

violations of the Federal Constitution is primarily a question of

state law. Federal law simply sets certain minimum

requirements that States must meet but may exceed in providing

appropriate relief. [The federal retroactivity precedents] provide

no support for the proposition that federal law places a limit on

state authority to provide remedies for federal constitutional

violations.

Danforth v. Minnesota, 552 U.S. at 288 (internal quotation marks and citations omitted).

IV.

This Court never adopted the Linkletter standard or the Teague standard. In fact, in

Meadows v. State, 849 S.W.2d 748 (Tenn. 1993), this Court explicitly overruled the trial

court’s decision to apply the Teague standard to a Tennessee decision. We clarified that

Tennessee has its own test for the retroactivity of new constitutional rules.

The question in Meadows v. State was whether the rule we announced in State v.

Jacumin, 778 S.W.2d 430 (Tenn. 1989), should apply retroactively to post-conviction

petitioners. While the Post-Conviction Procedure Act lacked an express retroactivity

provision prior to 1995, the Act specified that persons seeking post-conviction relief could

obtain relief based on a violation of a constitutional right “that was not recognized as existing

at the time of trial if either constitution requires retrospective application of that right.”

Tenn. Code Ann. § 40-30-105 (1990).

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In State v. Jacumin, we decided that Tennessee courts would no longer follow the

federal courts’ treatment of informants under the Fourth Amendment. We noted that other

states had decided that the federal standard described in Illinois v. Gates, 462 U.S. 213

(1983), had become “unacceptably shapeless and permissive” and “nebulous.” State v.

Jacumin, 778 S.W.2d at 435-36 (quoting Commonwealth v. Upton, 476 N.E.2d 548, 556

(Mass. 1985); State v. Jackson, 688 P.2d 136, 139 (Wash. 1984)). We clarified that

Tennessee adheres to a pre-Gates standard that required a greater quantum of corroboration

to establish probable cause to obtain a warrant when the warrant is based on information

provided by an informant. State v. Jacumin, 778 S.W.2d at 434-36.

Mr. Meadows’s drug convictions had been upheld under the Illinois v. Gatesstandard.

He petitioned for post-conviction relief, asking that his case be re-evaluated under State v.

Jacumin. Meadows v. State, 849 S.W.2d at 749-50. Accordingly, the Court was called upon

to decide whether Jacumin announced a new rule that required “retrospective application.”

The Court first determined that State v. Jacumin announced a new rule. For this

question, the Court wholeheartedly adopted the language from Teague v. Lane, 489 U.S. at

301, that “a case announces a new rule when it breaks new ground or imposes a new

obligation on the States or the Federal Government. . . . To put it differently, a case

announces a new rule if the result was not dictated by precedent existing at the time the

defendant’s conviction became final.” Meadows v. State, 849 S.W.2d at 751 (citations

omitted). Because the Court of Criminal Appeals had previously applied the Illinois v. Gates

standard in nine cases, our decision in Meadows v. State to abandon the Gates standard was

clearly a result “not dictated by precedent.” Meadows v. State, 849 S.W.2d at 751-53. The

more difficult question was whether State v. Jacumin’s new rule required retroactive

application.

The Court observed that prior to 1965, courts applied all new constitutional rules of

criminal procedure retroactively, but that this changed after the United States Supreme Court

decided Linkletter v. Walker, 381 U.S. 618 (1965). This Court also noted that the federal

retroactivity analysis had “changed substantially” as a result of Teague v. Lane. Meadows

v. State, 849 S.W.2d at 753. We pointed out that under Teague v. Lane, that

a new rule of federal constitutional law will not be given

retroactive application to cases on collateral review unless (1)

the rule places certain kinds of primary, private individual

conduct beyond the power of the state to proscribe, or (2) the

rule requires the observance of procedures implicit in the

concept of ordered liberty.

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Meadows v. State, 849 S.W.2d at 754 (citing Teague v. Lane, 489 U.S. at 307).

At this point, the Court made two seminal observations. First, the Court stated that

“states are bound by federal retroactivity analysis when a new federal rule is involved.”

Meadows v. State, 849 S.W.2d at 754. Second, the Court stated that “it is well established

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that state courts are free to determine what retroactive effect will be accorded

pronouncements of state law” Meadows v. State, 849 S.W.2d at 754. “When questions of

state law are at issue, state courts generally have the authority to determine the retroactivity

of their own decisions.” Meadows v. State, 849 S.W.2d at 754 (quoting American Trucking

Associations, Inc. v. Smith, 496 U.S. 167, 177 (1990)). While this Court recognized that

several states had “assimilated the Teague standard” into their own state jurisprudence (and

others operated under the older Linkletter standard), we declined to do so. We clarified

Tennessee’s rule as follows:

[W]e have stated that newly announced state constitutional rules

will be given retroactive application to cases which are still in

the trial or appellate process at the time such rules are

announced, unless some compelling reason exists for not so

doing. State v. Robbins, 519 S.W.2d 799, 800 (Tenn. 1975). In

post-conviction proceedings, we have considered retroactive

application necessary when the new state rule enhances the

integrity and reliability of the fact finding process of the trial.

Hellard v. State, 629 S.W.2d 4, 5 (Tenn. 1982). Stated another

way, we have held retroactive application necessary when the

old rule substantially impairs the truth-finding function of the

trial and thereby raises serious questions about the accuracy of

guilty verdicts in past trials. Id. at 7. After carefully

considering the issue and the shifting sand of federal

retroactivity analysis, we conclude that the prior decisions of

this Court set forth the appropriate standard for determining the

retroactive effect of new state constitutional pronouncements.

Accordingly, we decline to apply the federal standard of

retroactivity announced in Teague v. Lane . . . and hold that a

new state constitutional rule is to be retroactively applied to a

claim for post-conviction relief if the new rule materially

As we have already noted, this interpretation of the federal precedents eventually proved to be 6

incorrect. Danforth v. Minnesota, 552 U.S. at 288. Thus, in contrast to what this Court assumed in Meadows

v. State, the states are not “bound by federal retroactivity analysis when a new federal rule is involved.” 

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enhances the integrity and reliability of the fact finding process

of the trial.

Meadows v. State, 849 S.W.2d at 754-55 (footnote omitted). Applying this standard, we

determined that Jacumin did not warrant retroactive application. Meadows v. State, 849

S.W.2d at 755.

However, Meadows was not the end of the story. Two years after this Court decided

Meadows v. State, the General Assembly enacted a new version of the Post-Conviction

Procedure Act. The new Act was designed to hasten the final resolution of criminal appeals.

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Accordingly, the Act included a strict one-year statute of limitations for filing a petition for

post-conviction relief. See Tenn. Code Ann. § 40-30-102(a); Whitehead v. State, 402 S.W.3d

at 622.

To offset the harshness of the one-year deadline, the Act also contained three

exceptions to toll the statute of limitations or to permit a prisoner to re-open a previously

filed petition. Tenn. Code Ann. § 40-30-102(b) (grounds for tolling the limitations period);

Tenn. Code Ann. § 40-30-117(a) (grounds for a motion to reopen). In this case, Mr. Bush

invokes Tenn. Code Ann. § 40-30-102(b)(1), which provides an exception to the one-year

filing deadline when

[t]he 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.

Under this provision, if Ward v. State, 315 S.W.3d 461 (Tenn. 2010), established a new right

requiring retrospective application, then Mr. Bush’s post-conviction petition would be timely.

Tenn. Code Ann. § 40-30-102(b), however, does not stand alone. A related

provision, Tenn. Code Ann. § 40-30-122, states:

For purposes of this part, a new rule of constitutional criminal

law is announced if the result is not dictated by precedent

See Act of Apr. 26, 1995, ch. 207, 1995 Tenn. Pub. Acts 305. 7

-13-
existing at the time the petitioner’s conviction became final and

application of the rule was susceptible to debate among

reasonable minds. A new rule of constitutional criminal law

shall not be applied retroactively in a post-conviction proceeding

unless the new rule places primary, private individual conduct

beyond the power of the criminal law-making authority to

proscribe or requires the observance of fairness safeguards that

are implicit in the concept of ordered liberty.

This Court has not squarely addressed whether Tenn. Code Ann. § 40-30-122

abrogated our decision in Meadows v. State to continue applying the “materially enhances

the integrity and reliability” standard to determine the retroactivity of new constitutional rules

in Tennessee. But this Court came close to doing so in 2001.

In Van Tran v. State, this Court announced a new rule that executing an intellectually

disabled prisoner violates the Cruel and Unusual Punishments Clause of Tenn. Const. art I,

§ 16. This Court then considered whether that rule should apply retroactively. Van Tran v.

State, 66 S.W.3d 790, 810-11 (Tenn. 2001). We observed:

The United States Supreme Court has said that a new rule of

federal constitutional law is to be applied in cases on collateral

review only if it (1) places certain kinds of primary, private

individual conduct beyond the power of the state to proscribe or

(2) requires the observance of procedures implicit in the concept

of ordered liberty. Teague v. Lane, 489 U.S. at 307, 109 S. Ct.

at 1073. We have adopted a somewhat different standard in

Tennessee: “a new state constitutional rule is to be retroactively

applied to a claim for post-conviction relief if the new rule

materially enhances the integrity and reliability of the fact

finding process of the trial.” Meadows v. State, 849 S.W.2d at

755; see also Tenn. Code Ann. § 40-30-[122] (citing the Teague

standard for retroactivity).

Van Tran v. State, 66 S.W.3d at 811. This Court then applied the Meadows v. State standard

and held that the rule announced in Van Tran v. State should be applied retroactively because

the prohibition on executing intellectually disabled defendants “materially enhances the

integrity and reliability of the fact finding process of the trial.” Van Tran v. State, 66 S.W.3d

at 811.

-14-
We note at this juncture that the outcome of Van Tran would have been the same even

if this Court had applied the Teague standard. After the United States Supreme Court

determined that executing intellectually disabled prisoners violates the federal constitution

in Atkins v. Virginia, 536 U.S. 304 (2002), federal courts applying the Teague standard

determined that this ruling applied retroactively to state habeas corpus petitioners. See, e.g.,

Hill v. Anderson, 300 F.3d 679, 681 (6th Cir. 2002).

Van Tran thus left the question unresolved whether Tennessee post-conviction courts

should apply the retroactivity standard in Meadows v. State or Tenn. Code Ann. § 40-30-122.

Faced with this conundrum in this case, the Court of Criminal Appeals decided to analyze

Ward v. State under both retroactivity standards. Bush v. State, 2012 WL 2308280, at *4-9.

We owe it to the bench and bar to squarely decide the issue.

The choice between the retroactivity standard in Meadows v. State and Tenn. Code

Ann. § 40-30-122 requires us to strike an appropriate balance between two important

principles. The first principle is that the availability and scope of post-conviction relief lies

within the discretion of the General Assembly because post-conviction relief is entirely a

creature of statute. Pike v. State, 164 S.W.3d 257, 262 (Tenn. 2005). The second principle

is that determining the retroactivity of new constitutional rules is customarily a judicial

function.

Because Tenn. Code Ann. § 40-30-122 provides retroactivity principles applicable to

post-conviction petitions, the choice between Meadows v. State and Tenn. Code Ann. § 40-

30-122 implicates the separation of powers in Article 1, Sections 1 and 2 of the Constitution

of Tennessee. Only this Court has the authority to oversee the practice and procedure in

Tennessee’s courts. Mansell v. Bridgestone Firestone N. Am. Tire, LLC, ___ S.W.3d ___,

2013 WL 4430909, at *6 (Tenn. 2013) (quoting State v. Mallard, 40 S.W.3d 477, 480-81

(Tenn. 2001)). However, even though this Court is “supreme in fact as well as in name”

8

when it comes to Tennessee’s courts, our commitment to cooperation among the three

branches of government has prompted us to acquiesce in and to apply statutes affecting the

operation of the courts when they do not interfere with the courts’ adjudicative functions or

otherwise impermissibly encroach on the Judicial Branch. Mansell v. Bridgestone Firestone

N. Am. Tire, LLC, 2013 WL 4430909, at *6 (quoting Lynch v. City of Jellico, 205 S.W.3d

384, 393 (Tenn. 2006)).

We recognize our obligation to protect the independence of Tennessee’s courts. State

v. Mallard, 10 S.W.3d at 482 (quoting Anderson Cnty. Quarterly Court v. Judges of the 29th

Mansell v. Bridgestone Firestone N. Am. Tire, LLC, 2013 WL 4430909, at *6 (quoting Barger v. 8

Brock, 535 S.W.2d 337, 341 (Tenn. 1976)).

-15-
Judicial Circuit, 579 S.W.2d 875, 878 (Tenn. Ct. App. 1978)). However, because Tenn.

Code Ann. § 40-30-122 is an integral part of a purely statutory remedy created by the General

Assembly and because its reach does not extend beyond the Post-Conviction Procedure Act,

we hold that the retroactivity of new constitutional rules in post-conviction proceedings

should henceforth be determined using Tenn. Code Ann. § 40-30-122.

V.

Having decided that Tenn. Code Ann. § 40-30-122 governs the retroactive effect of

Tennessee appellate decisionsto post-conviction petitioners, we now turn to the case at hand.

First, we will assess the retroactivity of our decision in Ward v. State. Second, we will

determine whether Mr. Bush is entitled to due processtolling of his post-conviction deadline.

Whether Ward v. State requires retroactive application is a question of law that

warrants no deference to the decisions of the courts below. State v. White, 362 S.W.3d at

565. The question of whether the post-conviction statute of limitations should be tolled is

a mixed question of law and fact that is likewise subject to de novo review. Smith v. State,

357 S.W.3d 322, 355 (Tenn. 2011).

Under Tenn. Code Ann. § 40-30-102(b)(1), we must answer two questions to

determine whether our holding in Ward v. State triggered a new one-year statute of

limitations for Mr. Bush. The first question is the “new rule” question; the second is the

“retrospective application” question.

A.

Tenn. Code Ann. § 40-30-102(b)(1) permits a prisoner to file a petition beyond the

one-year deadline if, first, “[t]he 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.” Tenn. Code Ann. § 40-30-122 states: “For purposes of this part, a new rule

of constitutional criminal law is announced if the result is not dictated by precedent existing

at the time the petitioner’s conviction became final and application of the rule was

susceptible to debate among reasonable minds.”

We find that Ward v. State announced a new rule of constitutional criminal procedure.

The parties and the Court of Criminal Appeals agree on this point. As the Court of Criminal

Appeals pointed out, the Ward v. State case resulted in a split decision by the Court of

Criminal Appeals, and this Court ultimately reversed the majority decision. Thus, Ward v.

State’s decisional history demonstrates that the Ward v. State ruling was subject to debate

and was certainly not dictated by precedent. Bush v. State, 2012 WL 2308280, at *4 (citing

-16-
Ward v. State, No. W2007-01632-CCA-R3-PC, 2009 WL 113236, at *9-11 (Tenn. Crim.

App. Jan. 14, 2009)). Thus, the first requirement of Tenn. Code Ann. § 40-30-102(b)(1) has

been met.

B.

The second requirement for triggering the Post-Conviction Procedure Act’s tolling

provision is that “retrospective application” of the new rule is “required.” Tenn. Code Ann.

§ 40-30-102(b)(1). Tenn. Code Ann. § 40-30-122 states that a new rule of constitutional

criminal law can be applied retroactively only if “the new rule places primary, private

individual conduct beyond the power of the criminal law-making authority to proscribe” or

if the new rule “requires the observance of fairness safeguards that are implicit in the concept

of ordered liberty.”

The rule of Ward v. State was not a rule that “places primary, private individual

conduct beyond the power of the criminal law-making authority to proscribe.” Tenn. Code

Ann. § 40-30-122. Examples of this type of rule include Lawrence v. Texas, 539 U.S. 558

(2003), in which the United States Supreme Court held that states could not criminalize

homosexual intercourse between consenting adults, and Roe v. Wade, 410 U.S. 113 (1992),

in which the United States Supreme Court held that states could not in most cases criminally

penalize doctors for performing early-term abortions. Our Ward decision does not fall into

this category.

Thus, this case hinges on whether Ward v. State announced a rule that “requires the

observance of fairness safeguards that are implicit in the concept of ordered liberty.” This

is a question of statutory interpretation. As we have said many times:

Our role in construing a statute is to ascertain and give effect to

the legislature’s intent without unduly restricting or expanding

a statute’s coverage beyond its intended scope. We begin by

focusing on the statute’s words, presuming that each word has

its own meaning and purpose. If the language is clear and

unambiguous, we need look no further. When faced with

ambiguous language, however, we may refer to the broader

statutory scheme, the legislative history, and other sources,

including the established canons of statutory construction

State v. Hawkins, 406 S.W.3d 121, 131 (Tenn. 2013) (internal citations omitted);see also Lee

Med., Inc. v. Beecher, 312 S.W.3d 515, 526-28 (Tenn. 2010). We must therefore begin by

-17-
focusing on the phrase “fairness safeguards that are implicit in the concept of ordered

liberty.”

The words “fairness safeguards” are clear enough. “Safeguards” in this context refers

to criminal procedural rules designed to guard against defendants being denied their due

process right to a fundamentally fair adjudication of guilt. Due process itself “embodies the

concepts of fundamental fairness,” justice, and “the community’s sense of fair play and

decency.” Whitehead v. State, 402 S.W.3d at 623 (quoting Seals v. State, 23 S.W.3d 272,

277 (Tenn. 2000); United States v. Lovasco, 431 U.S. 783, 790 (1977)). The rule of Ward

v. State clearly constitutes a procedural “safeguard” derived from due process notions of

“fairness.”

More difficult to parse is the phrase “implicit in the concept of ordered liberty.” This

limiting phrase implies that not all constitutionally-derived “fairness safeguards” warrant

retroactive application in post-conviction cases. As for the word “implicit,” relevant

definitionsinclude “[i]mplied though not plainly expressed; naturally or necessarily involved

in, or capable of being inferred from, something else.”

9

“Ordered liberty” is something of a legal term of art with a long history. See generally

David Crump, How Do the Courts Really Discover Unenumerated Fundamental Rights?

Cataloguing the Methods of Judicial Alchemy, 19 Harv. J.L. & Pub. Pol’y 795, 871-74

(1996) (describing the history of the phrase). The phrase currently appears in 122 opinions

by the United States Supreme Court. Its first legal use appears in Justice Cardozo’s opinion

in Palko v. Connecticut, 302 U.S. 319, 325 (1937), overruled by Benton v. Maryland, 395

U.S. 784 (1969).

The “ordered liberty” idiom first appeared in the context of the United States Supreme

Court’s efforts to determine which of the rights explicitly protected in the Bill of Rights were

“incorporated” or “absorbed” into the Due Process Clause of the Fourteenth Amendment and

were thereby binding on the states. The Supreme Court, adopting a selective approach to

incorporation, decided that while all constitutional rights are important, only those rights that

are “the very essence of a scheme of ordered liberty” should be binding on the states through

the Fourteenth Amendment. Palko v. Connecticut, 302 U.S. at 325. The Court noted that

these rights reflect “principle[s] of justice so rooted in the traditions and conscience of our

people as to be ranked as fundamental” such that “a fair and enlightened system of justice

would be impossible without them.” Palko v. Connecticut, 302 U.S. at 325.

7 Oxford English Dictionary 724 (2d ed. 1989). 9

-18-
The “ordered liberty” language next appeared in the context of the United States

Supreme Court’s adoption of newly recognized, non-textual substantive rights derived from

the Due Process Clauses of the Fifth and Fourteenth Amendments. The Court described

these rights as being “implicit in the concept of ordered liberty” and explained that they were

“deeply rooted in this Nation’s history and tradition” in the sense that they involve “the basic

values that underlie our society.” Moore v. City of E. Cleveland, Ohio, 431 U.S. 494, 503

(1977);see also Ronald J. Krotoszynski,Jr., Dumbo’s Feather: An Examination and Critique

of the Supreme Court’s Use, Misuse, and Abuse of Tradition in Protecting Fundamental

Rights, 48 Wm. & Mary L. Rev. 923, 946 (2006) (stating that since 1968, “Anglo-American

legal traditions,” rather than the “implicit in the concept of ordered liberty” inquiry have “set

the metes and bounds” of the Court’s substantive due process analysis).

Finally, the United States Supreme Court gradually imported the “ordered liberty”

concept into its decisions involving the retroactivity of new constitutional rules in federal

habeas corpus cases. The retroactivity standard the Court adopted in Teague v. Lane, 489

U.S. 288, 307, 310 (1989), was taken from Justice Harlan’s separate opinion in Mackey v.

United States, 401 U.S. 667, 693 (1971) (Harlan, J., concurring and dissenting). However,

10

the Court in Teague v. Lane explained that the procedures the Court would deem “implicit

in the concept of ordered liberty” were limited to “watershed rules of criminal procedure”

or “those new procedures without which the likelihood of an accurate conviction is seriously

diminished,” few of which the Court believed were likely to emerge. Teague v. Lane, 489

U.S. at 313.

Asthis Court has previously recognized, the retroactivity standard of Tenn. Code Ann.

§ 40-30-122 is similar to the federal standard of Teague v. Lane. See Van Tran v. State, 66

Justice Harlan said he thought 10

the writ ought always to lie for claims of nonobservance of those procedures that, as so aptly

described by Mr. Justice Cardozo in Palko v. Connecticut . . ., are ‘implicit in the concept

of ordered liberty.’ Typically, it should be the case that any conviction free from federal

constitutional error at the time it became final, will be found, upon reflection, to have been

fundamentally fair and conducted under those procedures essential to the substance of a full

hearing. However, in some situations in might be that time and growth in social capacity,

as well as judicial perceptions of what we can rightly demand of the adjudicatory process,

will properly alter our understanding of the bedrock procedural elements that must be found

to vitiate the fairness of a particular conviction. 

Mackey v. United States, 401 U.S. at 693 (Harlan, J., concurring and dissenting). As an example of such a

right, Justice Harlan cited Gideon v. Wainwright, 372 U.S. 335, 349 (1963), in which the Court recognized

the constitutional right to counsel. Mackey v. United States, 401 U.S. at 693-94 (Harlan, J., concurring and

dissenting).

-19-
S.W.3d at 811 (stating that Tenn. Code Ann. § 40-30-122 is “citing the Teague standard for

retroactivity”); State v. Gomez, 163 S.W.3d 632, 651 n.16 (Tenn. 2005) (stating in dicta that

Tenn. Code Ann. § 40-30-122 was “virtually identical” to the federalstandard), cert. granted,

judgment vacated 549 U.S. 1190 (2007). To be clear, Tenn. Code Ann. § 40-30-122 does

not include Teague v. Lane’s terminology about “watershed rules” or “the likelihood of an

accurate conviction.” However, in the context of post-conviction proceedings, the “ordered

liberty” idiom has come to encompass both of these limiting concepts.

We have also determined that, by adopting Tenn. Code Ann. § 40-30-122, the General

Assembly intended to change Tennessee’s standard for determining the retroactivity of new

constitutional rules in post-conviction proceedings. We generally presume that when the

General Assembly passes laws on a particular topic, it knows the current law on that subject

and legislates accordingly. Lee Med., Inc. v. Beecher, 312 S.W.3d at 527; Seals v. H & F,

Inc., 301 S.W.3d 237, 242 (Tenn. 2010). In this case, therefore, we presume that the General

Assembly knew in 1995 that Meadows v. State expressed the current law on the retroactivity

of new constitutional rules and that the General Assembly intended to change that law by

enacting Tenn. Code Ann. § 40-30-122.

The legislative history of the Post-Conviction Procedure Act confirmsthat the General

Assembly intended to abrogate Meadows v. State. Speaking to the House Judiciary

Committee on March 29, 1995, Representative Jere Hargrove, the Act’s sponsor, explained:

Finally, we have added language in section 122 which I will

guarantee is hard to understand – it is for me – but it is placed

there because it is language that has been spoken, interpreted by

the United States Supreme Court in Teague v. Lane, and it has

to be there, in our opinion, to make this, to deal with the

retroactivity provisions.

11

Later, on April 19, 1995, during the floor debate in the House of Representatives,

Representative Hargrove explained that the new version of the Post-Conviction Procedure

Act contained a “retroactivity standard – a [] stricter federalstandard than a state standard.”

12

Thus, it appears the General Assembly was aware that the state and federal retroactivity

Hearing on H.B. 1 Before the House Judiciary Comm., 99th Gen. Assembly. (Mar. 29, 1995)

11

(statement of Rep. Jere Hargrove). 

Debate on H.B. 1 Before the House, 99th Gen. Assembly (Apr. 19, 1995) (statement of Rep. Jere

12

Hargrove). 

-20-
standards differed and that the it chose to codify a “stricter” standard that was derived from

Teague v. Lane.

To summarize, we have determined that, by adopting Tenn. Code Ann. § 40-30-122,

the General Assembly intended to replace the retroactivity standard this Court adopted in

Meadows v. State with the functional equivalent of the federal standard from Teague v. Lane,

a standard the General Assembly recognized was “stricter” than Tennessee’s prior standard.

Additionally, we find that the General Assembly intended that the phrase “fairness

safeguards that are implicit in the concept of ordered liberty” should be interpreted along the

same lines as the Teague v. Lane standard. In this light, the “fairness safeguards” of Tenn.

Code Ann. § 40-30-122 are equivalent to the Teague v. Lane standard’s “watershed rules of

criminal procedure” or “those new procedures without which the likelihood of an accurate

conviction is seriously diminished.” Teague v. Lane, 489 U.S. at 313.

C.

Although the rule we announced in Ward v. State is an important new constitutional

rule, we can not say that it amounts to a “fairness safeguard . . . implicit in the concept of

ordered liberty” which, under Tenn. Code Ann. § 40-30-122, must be applied retroactively

to judgments that became final before its recognition.

This finding in no way detracts from the Ward v. State ruling’s critical importance.

We live in an era when the vast majority of criminal prosecutions are resolved by plea

agreements. As the United States Supreme court recently observed, ninety-seven percent of

federal convictions and ninety-four percent of state convictions are the result of guilty pleas.

Plea bargains have supplanted trials as “the critical point” of a defendant’s interaction with

the criminal justice system. Missouri v. Frye, 566 U.S. ___, 132 S. Ct. 1399, 1407 (2012)

(citations omitted). As in Mr. Bush’s case, the closest thing to a trial most defendants will

face is their plea colloquy. See Wlodarz v. State, 361 S.W.3d 490, 503-04 (Tenn. 2012)

(holding that “a guilty plea proceeding qualifies as a trial” for many criminal procedure

purposes).

Yet, we decline to find that the Ward v. State rule requires retroactive application

under the standard established in Tenn. Code Ann. § 40-30-122. First, the Ward v. State rule

would not appear to affect the accuracy of Mr. Bush’s conviction. We highly doubt that the

failure of a trial court to alert a defendant to the sentence of lifetime community supervision

would cause an innocent person to plead guilty. The crimes that warrant lifetime community

supervision are all quite serious felonies – not the type of conviction to which a defendant

would be likely to confess falsely. See Tenn. Code Ann. § 39-13-524(a).

-21-
Second, the rule of Ward v. State is also not a “watershed rule of criminal procedure.”

In thisregard, the rule wassimply an extension of the long-recognized constitutional doctrine

that courts may not accept a guilty plea “without an affirmative showing that it was

intelligent and voluntary.” Boykin v. Alabama, 395 U.S. 238, 242 (1969); see also Howell

v. State, 185 S.W.3d 319, 331 (Tenn. 2006); State v. Mellon, 118 S.W.3d 340, 345 (Tenn.

2003). In State v. Mackey, 553 S.W.2d 337, 341 (Tenn. 1977), this Court first adopted

procedures to ensure that plea colloquies in Tennessee did not violate the Boykin v.

Alabama “knowing, voluntary, and intelligent” rule. Similarly, Tenn. R. Crim. P.

11(b)(1)(B) requires that before a court accepts a guilty plea, it must inform the defendant

of, among other things, “the maximum possible penalty and any mandatory minimum

penalty.” See also Lane v. State, 316 S.W.3d 555, 563-64 (Tenn. 2010) (cataloging the full

requirements for a plea colloquy in Tennessee). In Ward v. State, we simply held that

lifetime community supervision qualified as one of the penalties that a trial court must

disclose under Tenn. R. Crim. P. 11(b)(1)(B) and under the due process doctrines which

birthed Tenn. R. Crim. P. 11(b). Ward v. State, 315 S.W.3d at 474.

This Court’s constitutional function isto effectuate the intent of the General Assembly

even when the result may appear unfair. Pickard v. Tennessee Water Quality Control Bd.,

___ S.W.3d ___, ___, 2013 WL 6623553, at *10 (Tenn. 2013). Legislative policy is

“committed to the intelligence and discretion of the [General Assembly] and the courts will

not run a race of opinions with these representatives of the people upon the question of the

wisdom and propriety of such legislation.” Rush v. Great Am. Ins. Co., 213 Tenn. 506,

518–19, 376 S.W.2d 454, 459 (1964).

Because the rule we announced in Ward v. State was neither a watershed rule of

criminal procedure nor a rule that substantially enhances the accuracy of convictions, we

decline to find that the rule is “implicit in the concept of ordered liberty” under Tenn. Code

Ann. § 40-30-122. Therefore, the rule of Ward v. State is not a new constitutional right for

which “retroactive application . . . is required” under Tenn. Code Ann. § 40-30-102(b)(1).

Because the rule did not toll the Post-Conviction Procedure Act’s one-year filing deadline,

the Court of Criminal Appeals correctly held that Mr. Bush’s petition was untimely and

should have been dismissed.

VI.

One final question remains unresolved. Mr. Bush also argues that due process

considerations require tolling the post-conviction deadline. The trial court agreed, and found

the post-conviction statute of limitations should be tolled on due process grounds. Based on

this record, we agree with the holding of the Court of Criminal Appeals that this case does

not warrant due process tolling. See Bush v. State, 2012 WL 2308280, at *9-10.

-22-
The notion of “due process” is anchored in the Due Process Clauses of the Fifth and

Fourteenth Amendments to the United States Constitution and the “Law of the Land” clause

in Article I, Section 8 of the Constitution of Tennessee. Due process “embodies the

13

concepts of fundamental fairness,” justice, and “the community’s sense of fair play and

decency” Whitehead v. State, 402 S.W.3d 615, 623 (Tenn. 2013) (quoting Seals v. State, 23

S.W.3d 272, 277 (Tenn. 2000); United States v. Lovasco, 431 U.S. 783, 790 (1977)). Both

this Court and the United States Supreme Court have recognized that due process requires

that, once the legislature provides prisoners with a method for obtaining post-conviction

relief, prisoners must be afforded an opportunity to seek this relief “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)).

We recently clarified Tennessee’s due process tolling standard in Whitehead v. State.

We held that a post-conviction petitioner is entitled to due process tolling of the one-year

statute of limitations upon a showing (1) that he or she has been pursuing his or her rights

diligently, and (2) that some extraordinary circumstance stood in his or her way and

prevented timely filing. Whitehead v. State, 402 S.W.3d at 631 (citing Holland v. Florida,

560 U.S. 631, __, 130 S. Ct. 2549, 2562 (2010)). This rule applies to all due process tolling

claims, not just those that concern alleged attorney misconduct.

As this Court has explained: 13

The Fifth Amendment to the United States Constitution, which is applicable to the

states through the Fourteenth Amendment, provides, in part, that “[n]o person shall . . . be

deprived of life, liberty, or property, without due process of law.” In addition, the

Fourteenth Amendment to the U.S. Constitution provides, in part, that “[n]o state shall . .

. deprive any person of life, liberty, or property, without due process of law.” The

corresponding provision of the Tennessee Constitution provides “[t]hat no man shall be

taken or imprisoned, or disseized of his freehold, liberties or privileges, or outlawed, or

exiled, or in any manner destroyed or deprived of his life, liberty or property, but by the

judgment of his peers or the law of the land.” Tenn. Const. art. I, § 8.1. 

Although the language of these provisions is different, the “law of the land”

provision of Article I, § 8 of the Tennessee Constitution has been construed as synonymous

with the “due process of law” provisions of the Fifth and Fourteenth Amendments to the

U.S. Constitution. However, U.S. Supreme Court interpretations of the due process clauses

of the U.S. Constitution only establish a minimum level of protection, and this Court, as the

final arbiter of the Tennessee Constitution, is always free to expand the minimum level of

protection mandated by the federal constitution.

Burford v. State, 845 S.W.2d 204, 207 (Tenn. 1992) (citations omitted).

-23-
We also noted in Whitehead that the standard for pursuing one’s rights diligently

“does not require a prisoner to undertake repeated exercises in futility or to exhaust every

imaginable option, but rather to make reasonable efforts [to pursue his or her claim].”

Whitehead v. State, 402 S.W.3d at 631 (quoting Aron v. United States, 291 F.3d 708, 712

(11th Cir. 2002)). However, we emphasized that due process tolling “must be reserved for

those rare instances where – due to circumstances external to the party’s own conduct – it

would be unconscionable to enforce the limitation period against the party and gross injustice

would result.” Whitehead v. State, 402 S.W.3d at 631-32 (quoting Harris v. Hutchinson, 209

F.3d 325, 330 (4th Cir. 2000)).

The threshold for triggering this form of relief is “very high, lest the exceptions

swallow the rule.” Whitehead v. State, 402 S.W.3d at 632 (quoting United States v.

Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)). Prior to Whitehead, this Court had tolled

the post-conviction deadline on due process grounds in cases (1) where the grounds for

overturning the conviction arose after the statute of limitations had run; (2) where the

prisoner was mentally incompetent; and (3) where a prisoner has been actively misled by

attorney misconduct. Whitehead v. State, 402 S.W.3d at 623-24.

This case could be construed as one in which the grounds for overturning the

conviction arose after the one-year deadline had already passed. On one hand, the violation

of Mr. Bush’s due process rights actually occurred before the trial court entered its judgment

of conviction. On the other hand, Mr. Bush did not discover that he had been sentenced to

lifetime community supervision until after he was released from jail. This discovery may or

may not have occurred within a year of his conviction becoming final. Mr. Bush was

sentenced to serve one year in the Sumner County jail, and the record does not make clear

when that term began or ended. However, we do know two things: (1) Mr. Bush essentially

admitted that he knew about lifetime community supervision by December 2004 at the latest;

and (2) Mr. Bush did not apply for post-conviction relief until April 2011.

Under these facts, we cannot find that Mr. Bush was diligently pursuing his rights

under the first prong of the Whitehead-Holland test. Even if Mr. Bush’s claim could fairly

be characterized as a later-arising claim, nothing prevented him from filing his petition in the

intervening years between his discovery of the undisclosed sentence and the filing of his

post-conviction petition. In light of the General Assembly’s clear preference that the postconviction statute of limitations be strictly construed, we do not find this to be one of those

rare unconscionable cases that cries out for due process tolling.

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VII.

In conclusion, we hold that our decision in Ward v. State does not require retroactive

application under Tenn. Code Ann. § 40-30-122. Therefore, our Ward decision does not toll

the post-conviction statute of limitations under Tenn. Code Ann. § 40-30-102(b)(1).

Additionally, Mr. Bush does not qualify for due process tolling of the post-conviction statute

of limitations. We affirm the judgment of the Court of Criminal Appeals and assess the costs

of this appeal to the State of Tennessee.

______________________________

WILLIAM C. KOCH, JR., JUSTICE

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