IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs November 17, 2015

TIMOTHY COLEMAN v. STATE OF TENNESSEE

Appeal from the Criminal Court for McMinn County

No. 15-CR-228 Sandra N.C. Donaghy, Judge

No. E2015-01414-CCA-R3-PC – Filed January 29, 2016

According to the allegations of the pro se post-conviction petition, the Petitioner, 

Timothy Coleman, pleaded guilty to initiation of a process to manufacture 

methamphetamine and received a nine-year sentence. He alleged that the date of the 

judgment was March 7, 2014, and that no appeal was filed. He filed a post-conviction 

petition on July 6, 2015, alleging that due process required tolling of the one-year postconviction statute of limitations due to his mental incompetency. The post-conviction 

court summarily dismissed the petition as time-barred. On appeal, the Petitioner 

contends that the post-conviction court erred in dismissing the case on the basis of the 

statute of limitations. He also contends that newly discovered evidence may establish his 

actual innocence of the offense. We affirm the judgment of the post-conviction court.

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

ROBERT H. MONTGOMERY, JR., J., delivered the opinion of the court, in which JOHN 

EVERETT WILLIAMS and ROGER A. PAGE, JJ., joined.

Timothy Coleman, Whiteville, Tennessee, Pro Se.

Herbert H. Slatery III, Attorney General and Reporter; M. Todd Ridley, Assistant 

Attorney General; Stephen Crump, District Attorney General, for the appellee, State of 

Tennessee.

OPINION

The primary issue in this case relates to the level of specificity required of a pro se 

post-conviction petition relative to allegations of mental incompetence as a basis for 

tolling the one-year statute of limitations. In the pro se petition, the Petitioner alleged the 

following related to mental incompetency and mental illness:
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This Petitioner, being mentally incompetent, with about a 3rd grade 

education, respectfully request[s] that the Court Toll the Statute of 

Limitations. This petitioner has no legal training what so ever, and has not 

failed to bring this Petition before the Court, because of a mental problem, 

this Petition is now before this Court.

. . . 

The attorneys failed to request a competency Hearing from the Court, and 

the attorneys knew and realized that this Petitioner is mentally incompetent. 

This is a procedural and substantive incompetency claim. . . . 

. . .

This Petitioner’s Due Process Rights require the court to Toll the Statute of 

Limitations and to Appoint Competent Counsel to represent this Petitioner 

at all stages of this Petition. 

This Petitioner, was drawing Disability Social Security, was taking 

medicine for the Mental Problems, as the Social Security Records will 

show. . . . 

Since the beating at the County Jail by the Guards, this Petitioner has more 

problems with seizures, to the point of passing out, problems thinking or 

remembering certain details, or family members, or friends, and has been 

taking meds for these seizures in the prison facilities, as well [as] other 

medications for the medal [sic] plate Placed in his cheek where the jailors 

beat and stomped Petitioner. Petitioner alleges that the jailors beat him 

because of his mental Problems, and they were afraid Petitioner would find 

out about [the unlawful acts of a law enforcement officer involved in the 

Petitioner’s case].

. . . 

Petitioner[’]s Mental illness goes to show that Petitioner Could not 

comprehend the actions of pleading guilty, and constitutes Ineffective 

Assistance of Counsel.
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The Petitioner’s substantive bases for post-conviction relief related to prosecutorial 

misconduct, ineffective assistance of counsel, and an unknowing and involuntary guilty 

plea. He sought the appointment of counsel.

The post-conviction court summarily dismissed the Petition as untimely. The 

court acknowledged that although the post-conviction statute of limitations could be 

tolled due to mental incompetence, the Petitioner had “failed to attach any documentation 

or other proof to his petition to support his claim for the toll.” The court noted, as well, 

that the Petitioner had not signed the Petition under oath before a notary. 

In his pro se notice of appeal, the Petitioner stated that he had no access to the 

Social Security records that would demonstrate his mental incompetency. He stated that 

he had requested his Social Security records in January 2015 but had not received the 

records or a response as of July 17, 2015, the date he signed the notice of appeal. He also 

stated that he had been unable to obtain notarization of his petition because he and the 

rest of the prison had been “on lock-down.”

The Petitioner contends that the post-conviction court erred in summarily 

dismissing the petition without appointing counsel and requiring the State to file an 

answer. The State contends that the court properly dismissed the petition as untimely. 

Post-conviction relief is available within one year of the date of a judgment’s 

becoming final. T.C.A. § 40-30-102(a) (2012). The Post-Conviction Procedure Act

states, “Time is of the essence of the right to file a petition for post-conviction relief . . . , 

and the one-year limitations period is an element of the right to file such an action and is 

a condition upon its exercise.” Id. The statute provides three exceptions:

(b) No court shall have jurisdiction to consider a petition filed after the 

expiration of the limitations period 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. 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;
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(2) The claim in the petition is based upon new scientific evidence 

establishing that the petitioner is actually innocent of the offense or 

offenses for which the petitioner was convicted; or

(3) The claim asserted in the petition seeks relief from a sentence that 

was enhanced because of a previous conviction and the conviction in the 

case in which the claim is asserted was not a guilty plea with an agreed 

sentence, and the previous conviction has subsequently been held to be 

invalid, in which case the petition must be filed within one (1) year of 

the finality of the ruling holding the previous conviction to be invalid.

Id. § 40-30-102(b)(1)-(3). In addition to the statutory exceptions, due process may 

require tolling the statute of limitations in certain circumstances. See Burford v. State, 

845 S.W.2d 204, 108 (Tenn. 1992) (“[D]ue process requires that potential litigants be 

provided an opportunity for the presentation of claims at a meaningful time and in a 

meaningful manner.”) (citing Long v. Zimmerman Brush Co., 455 U.S. 422, 437 (1982)). 

One basis upon which due process may require tolling is for periods of mental 

incompetence. See Seals v. State, 23 S.W.3d 272 (Tenn. 2000); Watkins v. State, 903 

S.W.2d 302 (Tenn. 1995).

In State v. Nix, 40 S.W.3d 459, 463 (Tenn. 2001), our supreme court said, in the 

context of a post-conviction petition alleging that due process tolled the statute of 

limitations due to the petitioner’s mental incompetence, that “the mere assertion of a 

psychological problem” was insufficient to establish a prima facie claim that the 

limitations period should be tolled. The court said that the petition must include specific 

factual allegations to support the tolling claim. Nix, 40 S.W.3d at 464. The court 

explained:

We emphasize that to make a prima facie showing of incompetence 

requiring tolling of the limitations period, a post-conviction petition must 

include specific factual allegations that demonstrate the petitioner’s 

inability to manage his personal affairs or understand his legal rights and 

liabilities. Unsupported, conclusory, or general allegations of mental illness 

will not be sufficient to require tolling and prevent summary dismissal 

under Tenn. Code Ann. § 40-30-206(b) & (f). Cf. Van Tran v. State, 6 

S.W.3d 257, 268 (Tenn. 1999) (holding that unsupported assertions of 

incompetency to be executed are not sufficient to meet the required 

threshold showing); State v. Barnett, 909 S.W.2d 423, 431 (Tenn. 1995) 

(holding that unsupported assertions that expert services are needed are 

insufficient to entitle a defendant to a hearing). The required prima facie 
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showing may be satisfied by attaching to the petition affidavits, depositions, 

medical reports, or other credible evidence that contain specific factual 

allegations showing the petitioner’s incompetence. See Tenn. Code Ann. § 

40-30-204(e) (“Affidavits, records or other evidence available to the 

petitioner supporting the allegations of the petition may be attached to it.”). 

Cf. Van Tran, 6 S.W.3d at 269 (holding that the required threshold showing 

to establish a genuine disputed issue regarding a prisoner’s competency to 

be executed may be met by submitting affidavits, depositions, medical 

reports, or other credible evidence). While affidavits and depositions of 

mental health professionals may be utilized, they are not essential, and a 

petitioner may rely upon affidavits and depositions from family members, 

prison officials, attorneys, or any other person who has knowledge of facts 

that demonstrate either the petitioner’s inability to manage his personal 

affairs or the petitioner’s inability to understand his legal rights and 

liabilities.

Nix, 40 S.W.3d at 464.

When a court receives a post-conviction petition, it must conduct a preliminary 

review to determine, among other matters, whether the petition is timely and whether it 

states a colorable claim. T.C.A. § 40-30-106(b), (d) (2012). “If 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.” Id. § 40-3-106(b). 

The petition must contain a clear and specific statement of all grounds upon 

which relief is sought, including full disclosure of the factual basis of those 

grounds. A bare allegation that a constitutional right has been violated and 

mere conclusions of law shall not be sufficient to warrant further 

proceedings. Failure to state a factual basis for the grounds alleged shall 

result in immediate dismissal of the petition. If, however, the petition was 

filed pro se, the judge may enter an order stating that the petitioner must 

file an amended petition that complies with this section within fifteen (15) 

days or the petition will be dismissed.

Id. § 40-30-106(d); see Tenn. Sup. Ct. R. 28, § 5(E) (setting forth the required contents of 

a post-conviction petition, including “specific facts supporting each claim for relief 

asserted by petitioner”); Tenn. Sup. Ct. R. 28, § 5(F) (providing grounds for summary 

dismissal of a post-conviction petition, including untimeliness, failure to include specific 

factual allegations, and failure to include reasons why the claim is not barred by the 
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statute of limitations). This court has said that whether to permit amendment is within 

the trial court’s discretion. See Powell v. State, 8 S.W.3d 631, 633 (Tenn. Crim. App. 

1998); see also Charles E. Orange v. State, No. M2011-01168-CCA-R3-PC, 2012 WL 

1417252, at *3 (Tenn. Crim. App. Apr. 20, 2012); State v. Xavier C. Parks, No. W2007-

00142-CCA-R3-PC, 2008 WL 648937, at *2 (Tenn. Crim. App. Mar. 11, 2008), perm. 

app. denied (Tenn. June 19, 2012). Our supreme court’s rules provide as follows:

(4)(a) In the event the court concludes after the preliminary review that a 

colorable claim is not asserted by the petition, the court shall enter an order 

dismissing the petition or an order requiring that the petition be amended.

(b) No pro se petition shall be dismissed for failure to follow the prescribed 

form until the court has given petitioner a reasonable opportunity to amend 

the petition with the assistance of counsel.

Tenn. Sup. Ct. R. 28, § 6(B)(4)(a)-(b). Subdivision (a) of Rule 28, section 6(B)(4) speaks 

to the substance of the petition. If the substance is lacking, the petition may be 

summarily dismissed. Subdivision (b) of Rule 28, section 6(B)(4) speaks to the form of 

the petition. If the petition is merely lacking in form and was filed pro se, a postconviction court cannot dismiss it based upon a flaw in the form until the petitioner has 

been given the opportunity to amend the petition with the assistance of counsel.

In the present case, the post-conviction court dismissed the petition on two bases, 

one related to substance and one related to form. Relative to the substance of the petition, 

the court determined that the Petitioner failed to state a cognizable claim for due process 

tolling of the statute of limitations. Relative to the form of the petition, the court 

determined that the petition was unverified. We will consider these issues separately.

Relative to the post-conviction court’s determination that the Petitioner failed to 

allege facts that would entitle him to tolling of the statute of limitations on due process 

grounds, the Petitioner contends in his brief that he has been unable to obtain his 

documentation from the Social Security Administration. He also alleges that he has 

received prescription “mental drugs” in prison. He argues that because his incarceration 

prevents his access to the records that would support his tolling claim, the post-conviction 

court should have appointed counsel to assist him. 

The Petitioner’s pro se petition is deficient in factual allegations to support his 

claim that due process requires tolling the statute of limitations due to mental 

incompetency. We note that Nix provides that documentary evidence attached to the 

petition may assist in establishing the threshold showing of mental incompetency, 
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although it is not essential. See Nix, 40 S.W.3d at 464. The Petitioner’s failure to 

provide documentary evidence, standing alone, is not fatal to his claim. The more basic 

flaw that exists is his failure to “include specific factual allegations that demonstrate the 

petitioner’s inability to manage his personal affairs or understand his legal rights and 

liabilities.” Id. He alleged that he had a mental illness, that he took medication, that 

counsel was ineffective in failing to develop evidence related to the mental illness, that 

the Petitioner did not understand the consequences of the guilty plea due to the mental 

illness, and that the mental illness prevented the Petitioner from filing a timely postconviction petition. These allegations do not demonstrate a prima facie case that he was 

unable to manage his personal affairs or unable to understand his legal rights and 

liabilities. In the absence of factual allegations to support a claim for due process tolling, 

we conclude that the court did not err in summarily dismissing the petition.

We move to the post-conviction court’s finding that the petition was unverified 

and its dismissal on this basis. As we have stated, our supreme court rules direct that a 

post-conviction court shall not summarily dismiss a petition that is not in proper form 

until the petitioner has been given the opportunity to amend the petition with the 

assistance of counsel. Tenn. Sup. Ct. R. 28, § 6(B)(4)(b); see Anthony D. Forster v. 

State, No. M2012-01641-CCA-R3-PC, 2013 WL 4033665, at *2-3 (Tenn. Crim. App. 

Aug. 8, 2013) (concluding that the trial court erred in summarily dismissing a pro se postconviction petition, in part, because the petitioner failed to verify the petition under oath 

and that the court should have allowed the petitioner to amend the petition with the 

assistance of counsel); see also Christy S. Brown v. State, No. M2009-00506-CCA-R3-

PC, 2010 WL 759872, at *3 (Tenn. Crim. App. Mar. 5, 2010). We conclude that the 

Petitioner’s failure to verify the pro se petition was not a proper basis for summary 

dismissal. Because the Petitioner failed to allege adequate grounds for due process 

tolling of the statute of limitations, however, the court nevertheless properly dismissed 

the petition without appointing counsel or conducting a hearing.

Finally, we address the Petitioner’s claim that the evidence of alleged misconduct 

by a law enforcement officer was newly discovered evidence which became known to 

him “just prior to” his filing his post-conviction petition. The Petitioner alleged in the 

petition that he learned of the alleged misconduct shortly before he filed the petition. In 

the petition, the Petitioner’s factual allegations relative to the alleged misconduct of the 

law enforcement officer related to his claims of ineffective assistance of counsel in 

failing to pursue certain defense strategies to discredit the officer and investigate the case 

independently and to prosecutorial misconduct when “the district attorney’s office acted 

in concert with the attorneys appointed to this Petitioner to keep the facts unknown to the 

general public that [the officer] was planting evidence on the public at large.” He 

contends in his appellate reply brief, however, that the alleged misconduct constituted 
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“newly discovered evidence that may very well establish actual innocence for the 

Petitioner.”

We acknowledge that certain claims of newly discovered evidence in the form of 

scientific evidence establishing the petitioner’s actual innocence of the conviction offense 

are cognizable post-conviction claims and may require due process tolling of the statute 

of limitations. See T.C.A. § 40-30-102(b)(2) (providing for tolling of the statute of 

limitations for newly discovered scientific evidence that establishes the petitioner’s actual 

innocence of the conviction offense). The Petitioner’s claim as stated in the petition, 

however, is related to his allegation that a law enforcement officer had been relieved of 

his duties for “fabricating and planting evidence in drug bust cases.” The Petitioner’s 

claim is not one of newly discovered scientific evidence that might qualify for due 

process tolling under section 40-30-102(b)(2). 

We note, as well, that the allegations were not raised in the post-conviction court 

as free-standing claims of actual innocence, as might be cognizable in a petition for the 

writ of error coram nobis. See id. § 40-26-105 (2012). The allegations are raised as 

factual support for his ineffective assistance of counsel and prosecutorial misconduct

post-conviction claims. 

We conclude that the trial court did not err in determining that the petition was 

untimely. We likewise conclude that the court properly summarily dismissed the postconviction petition. 

In consideration of the foregoing and the record as a whole, the judgment of the 

post-conviction court is affirmed.

 _____________________________________

 ROBERT H. MONTGOMERY, JR., JUDGE