IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs June 4, 2013

E. LOUIS THOMAS v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 04-07385 J. Robert Carter, Jr., Judge

No. W2012-00999-CCA-MR3-PC - Filed November 8, 2013

Petitioner, E. Louis Thomas, was convicted by a Shelby County jury for the offense of first

degree murder, and he received a sentence of life imprisonment. The conviction was

affirmed on appeal, and the Tennessee Supreme Court denied Petitioner’s timely filed pro

se application for permission to appeal to that court. See State v. E. Louis Thomas, No.

W2008-01360-CCA-R3-CD, 2010 WL 2977874 (Tenn. Crim. App. July 29, 2010) perm.

app. denied (Tenn. Jan. 18, 2011). Both of Petitioner’s counsel were allowed to withdraw

as counsel of record on August 24, 2010, pursuant to Tenn. Sup. Ct. R. 14. Petitioner filed

a petition for post-conviction relief. The earliest it could be considered “filed,” under the

“mailbox” rule, was March 22, 2012. The trial court summarily dismissed the petition

because it was filed outside the one year statute of limitations. Petitioner appeals, and we

affirm the judgment of the post-conviction court.

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 JAMES CURWOOD

WITT, JR., and JEFFREY S. BIVINS, JJ., joined.

E. Louis Thomas, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Paul Goodman, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Petitioner mistakenly asserts in his appeal that this court granted him “a delayed

appeal” of his conviction, and he has presented his argument in the brief in accordance with

this misconception. This court actually entered an order that, in essence, waived the timely
filing of the notice of appeal from the trial court’s order dismissing the petition for postconviction relief. The appropriateness of this action by the trial court is the sole issue on

appeal.

In his petition for post-conviction relief, Petitioner’s entire response as to why the one

year statute of limitations should not bar his claim is as follows:

[Trial/Appellate Counsel] filed many extension[s] in my case and informed

me that he would forward me a letter letting me know exactly when to do

my post-conviction and that he would assist me but never did. He

resign[ed] from my case after the decision from the [C]ourt[ ] of [Criminal]

[A]ppeals[s].

As stated above, the record reflects that trial/appellate counsel were permitted to

withdraw as counsel, pursuant to Tenn. Sup. Ct. R. 14, following this court’s issuance of its

opinion in Petitioner’s case. That rule requires counsel to provide a defendant with notice,

among other things, that counsel is requesting to withdraw as counsel for the Defendant. The

motion cannot be granted absent delivery of this notice. Petitioner in this case acknowledges

that he knew when counsel withdrew, both by his statement in his petition and implicitly by

timely filing a pro se application to appeal his case to the supreme court.

Tennessee Code Annotated section 40-30-102 provides that Petitioner had one year

from January 18, 2011 (the date the Tennessee Supreme Court denied his application to

appeal) to timely file a petition for post-conviction relief. Tenn. Code Ann. § 40-30-102(a).

Subsection (b) of that statute provides for three very limited exceptions to the statute of

limitations, and none of the exceptions listed were alleged in the petition to be applicable in

this case. See Tenn. Code Ann. § 40-30-102(b).

Constitutional due process claims, when appropriate, might also cause the statue of

limitations to be tolled. In the recent case of Whitehead v. State, our supreme court adopted

a new standard for determining if due process required tolling of the statute of limitations in

post-conviction cases. The court held,

Henceforth, when a post-conviction petitioner argues that due

process requires tolling the Post-Conviction Procedure Act’s statute of

limitations based on the conduct of his or her lawyer, the two-prong inquiry

of Holland and Maples should guide the analysis. A petitioner is entitled

to due process tolling 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. Holland v. Florida,

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[560 U.S. 631,] 130 S. Ct. [2549,] 2562[, 177 L. Ed. 2d 130 (2010)].

Specifically, the second prong is met when the prisoner’s attorney of record

abandons the prisoner or acts in a way directly adverse to the prisoner’s

interests, such as by actively lying or otherwise misleading the prisoner to

believe things about his or her case that are not true. See Maples v. Thomas,

[___ U.S. ___,] 132 S. Ct. [912,] 923[, 181 L. Ed. 2d 807 (2012)]; Holland

v. Florida, 130 S.Ct. at 2564-65; Dillon v. Conway, 642 F.3d 358, 363-64

(2d Cir. 2011); Downs v. McNeil, 520 F.3d at 1320-21 (discussing these

two “well-recognized exceptions” to the “your lawyer, your fault” rule).

In terms of diligence, courts have recognized that due diligence “does

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

every imaginable option, but rather to make reasonable efforts. . . .

Moreover, the due diligence inquiry is an individualized one that must take

into account the conditions of confinement and the reality of the prison

system.” Downs v. McNeil, 520 F.3d at 1323 (quoting Aron v. United

States, 291 F.3d 708, 712 (11th Cir. 2002)).

Whitehead, 402 S.W.3d 615, 631 (Tenn. 2013).

We conclude that Petitioner’s case does not fall within the standard announced in

Whitehead. If it did, the “exception[ ] [would] swallow the rule.” Id. at 632 (citing Ex parte

Ward, 46 So. 3d 888, 897 (Ala. 2007) and quoting United States v. Marcello, 212 F.3d 1005,

1010 (7th Cir. 2000)).

Accordingly, Petitioner is not entitled to relief in this appeal, and the judgment of the

trial court is affirmed.

_________________________________

THOMAS T. WOODALL, JUDGE

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