IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 18, 2009

DUANE MICHAEL COLEMAN v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Davidson County

No. 97-A-33 J. Randall Wyatt, Jr., Judge

No. M2008-02180-CCA-R3-CD - Filed July 23, 2010

Petitioner, Duane Michael Coleman, appeals the dismissal of his petition for post-conviction

relief. The Petitioner filed his petition outside the statute of limitations. Accordingly, the

judgment of the post-conviction court is affirmed.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

THOMAS T. WOODALL, J., delivered the opinion of the Court, in which DAVID H. WELLES,

and ROBERT W. WEDEMEYER, JJ., joined.

Duane Michael Coleman, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Deshea Dulany Faughn, Assistant

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

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

OPINION

I. Background

Petitioner was convicted on November 5, 1997, of second degree murder and

sentenced to thirty-two years as a Range II multiple offender to be served consecutively to

two four-year sentences previously imposed for attempted aggravated robbery. On appeal,

this Court affirmed the convictions and sentence. State v. Duane Coleman, No. M1998-

00663-CCA-R3-CD, 2000 WL 31858 (Tenn. Crim. App. Jan. 18, 2000).

According to the record, Petitioner filed on January 17, 2001, a petition for postconviction relief, which was denied on July 5, 2001. A motion to reopen the petition was

denied on January 22, 2003, and this Court affirmed the order denying the motion to reopen
on December 29, 2005. Duane Coleman v. State, No. M2003-00512-CCA-R3-PC, order

dismissing appeal, (Tenn. Crim. App. Dec. 29, 2005). Petitioner’s application for

discretionary appeal was denied by the Supreme Court on May 1, 2006. Duane Coleman v.

State, No. M2003-00512-SC-R3-PC, 2006 Tenn. LEXIS 377 (Tenn., May 1, 2006). On

August 1, 2008, Petitioner filed a second petition for post-conviction relief alleging that “his

due process rights were violated because he was not afforded second-tier review after the

Court of Criminal Appeals affirmance of his judgment on Jan. 18, 2000.” On September 9,

2008, the post-conviction court entered an order summarily dismissing the petition.

Pursuant to Tennessee Code Annotated section 40-30-102(a), a person in custody

under a sentence of a court of this state must petition for post-conviction relief within one

year of the date of the final action of the highest state appellate court to which an appeal is

taken or, if no appeal is taken, within one year of the date on which the judgment becomes

final. The statute emphasizes that “[t]ime is of the essence of the right to file a petition for

post-conviction relief or motion to reopen established by this chapter, and the one-year

limitations period is an element of the right to file such an action and is a condition upon its

exercise.” T.C.A. § 40-30-102(a).

Additionally, Tennessee Code Annotated section 40-30-102(b), providesthat the trial

court does not have jurisdiction to consider a petition for post-conviction relief if it was filed

outside the one-year statute of limitations unless (1) the claim in the petition is based upon

a final ruling of an appellate court establishing a constitutional right that was not recognized

as existing at the time of trial, if retrospective application of that right is required; (2) the

claim in the petition is based upon new scientific evidence establishing that such petitioner

is actually innocent of the offense or offenses for which the petitioner was convicted; or (3)

the claim in the petition seeks relief from a sentence that was enhanced because of a previous

conviction and such conviction in the case in which the claim is asserted was not a guilty plea

with an agreed sentenced, and the previous conviction has subsequently been held to be

invalid. T.C.A. § 40-30-102(b).

Clearly, in the present case, Petitioner filed his post-conviction petition well beyond

the one-year statute of limitations. This Court affirmed Petitioner’s conviction and sentence

on January 18, 2000, and no application for permission to appeal to the Supreme Court was

filed. The post-conviction petition, which is the subject of this appeal, was not filed until

August 1, 2008. Petitioner contends in his brief that the limitations period should be tolled

because his “rights were violated when he was denied second-tier review following the

Criminal Court of Appeals [sic] affirmance of the lower Court Judgment on 18 January 2008

[sic].” He claims that he was “unaware that his defense lawyer had failed to file with the

Supreme Court,” and he was “ignorant of his right to - and the steps necessary to - obtain due

process and had to rely solely on his attorney’s expertise.” Under some circumstances,

-2-
constitutional due process may require tolling of the statute of limitations for filing a postconviction petition. In Williams v. State, 44 S.W.3d 464 (Tenn. 2001), our Supreme Court

concluded that “due process considerations may have tolled the limitations period” for filing

a post-conviction petition when the petitioner’s appointed counsel may have misled the

petitioner into believing that counsel was continuing the direct appeal process. Id. at 471; see

also Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000)(The strict application of the statute of

limitations of the Post-Conviction Procedure Act may not deny a petitioner “a reasonable

opportunity to assert a claim in a meaningful time and manner” if a petitioner is unable to

pursue his or her post-conviction claims due to circumstances beyond the petitioner’s control

such as a period of mental incompetence).

However, as noted by the post-conviction court in the present case, this is Petitioner’s

second petition for post-conviction relief. Our post-conviction statute provides that only one

petition for post-conviction relief may be filed attacking a single judgment. See T.C.A. § 40-

30-1029(c). The statute further provides that if a prior petition has been resolved on the

merits by a court of competent jurisdiction, a second petition shall be summarily dismissed.

See Id. According to the record, Petitioner filed a prior petition for post-conviction relief on

January 17, 2001, which was denied by the post-conviction court on July 5, 2001.Petitioner

did not file a notice of appeal, but subsequently filed a motion to reopen that post-conviction

petition. The trial court denied the motion on January 22, 2003. On appeal, Petitioner argued

that the trial court erred in dismissing his petition for post-conviction relief and in denying

his motion to reopen. In the order dismissing Petitioner’s appeal, this Court determined that

it did not have jurisdiction to entertain the appeal because Petitioner did not file a timely

application for permission to appeal to this court as required by T.C.A. § 40-30-117(c) and

Rule 28, § 10(B), Rules of the Supreme Court. Instead, Petitioner filed a notice of appeal in

the trial court. This Court further determined that the issues arising from the denial of

Petitioner’s post-conviction petition were not properly before this Court because Petitioner

never filed a timely notice of appeal from the trial court’s order denying post-conviction

relief. However, this Court stated: “Moreover, even if an appeal had been timely filed from

the order denying post-conviction relief, there is nothing in the record before this court to

support a reversal of the trial court’s order.” Duane Coleman v. State, No. M2003-00512-

CCA-R3-PC, order dismissing appeal, (Tenn. Crim. App. Dec. 29, 2005). Since Petitioner’s

first petition for post-conviction relief was resolved on the merits by a court of competent

jurisdiction, the trial court did not err in summarily dismissing the second petition.

CONCLUSION

The judgment of the trial court is affirmed.

_________________________________

THOMAS T. WOODALL, JUDGE

-3-