IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs August 19, 2015 at Knoxville

ADRIAN WILKERSON v. STATE OF TENNESSEE

Appeal from the Criminal Court for Davidson County

No. 95-B-856 Monte D. Watkins, Judge

No. M2015-00420-CCA-R3-PC – Filed September 8, 2015

The petitioner, Adrian Wilkerson, appeals pro se from the summary dismissal of his 2014 

petition for post-conviction relief, which challenged his 1996 convictions of first degree 

felony murder, especially aggravated robbery, and theft of property valued at $1000 or 

more but less than $10,000. Because the petition was filed more than a decade beyond 

the applicable statute of limitations, because this is the petitioner‟s second successive 

petition for post-conviction relief, and because the petitioner failed to either allege or 

prove a statutory exception to the timely filing or a due process tolling of the statute of 

limitations, we affirm the judgment of the post-conviction court.

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

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOHN 

EVERETT WILLIAMS and TIMOTHY L. EASTER,JJ., joined.

Adrian Wilkerson, Wartburg, Tennessee, pro se.

Herbert H. Slatery III, Attorney General and Reporter; Leslie E. Price, Assistant Attorney 

General; Victor S. Johnson III, District Attorney General; and Amy Hunter, Assistant 

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

OPINION

In 1996, a Davidson County Criminal Court jury convicted the petitioner of 

first degree felony murder, especially aggravated robbery, and theft of property valued 

over $1000 but less than $10,000, and the trial court imposed an effective sentence of life 

plus 29 years in prison. This court affirmed the convictions on direct appeal but modified 

the sentence to life plus 25 years. State v. Adrian Wilkerson and Steven Murphy, No. 

01C01-9610-CR-00419, slip op. at 30 (Tenn. Crim. App., Nashville, Aug. 26, 1998). 

The petitioner then filed a petition for post-conviction relief, alleging ineffective 
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assistance of counsel. Following a hearing, the post-conviction court denied the petition, 

and this court affirmed the denial. Adrian Wilkerson v. State, No. M2001-02295-CCAR3-PC, slip op. at 1 (Tenn. Crim. App., Nashville, July 16, 2002), perm. app. denied

(Tenn. Dec. 9, 2002).

The petitioner next sought habeas corpus relief, which was denied by the 

habeas corpus court, and this court affirmed the denial by memorandum opinion pursuant 

to Rule 20 of the Rules of the Court of Criminal Appeals. Adrian Wilkerson v. State, No. 

M2003-01385-CCA-R3-HC (Tenn. Crim. App., Nashville, Nov. 12, 2004), perm. app. 

denied (Tenn. Feb. 28, 2005). The petitioner then filed a second petition for writ of 

habeas corpus, which was denied by the habeas corpus court and again affirmed by this 

court by memorandum opinion. Adrian Wilkerson v. Howard Carlton, Warden, No. 

E2007-00382-CCA-R3-HC (Tenn. Crim. App., Knoxville, Mar. 26, 2008). The 

petitioner sought habeas corpus relief on a third occasion, claiming that judgments had 

not been entered for the convictions of especially aggravated robbery and theft. The 

State filed a motion to dismiss the petition and attached to its motion copies of the 

petitioner‟s judgments. The habeas corpus court then summarily dismissed the petition 

and forwarded the case to the trial court for correction of clerical errors in the judgments. 

This court, once again, affirmed the decision. Adrian Wilkerson v. Howard Carlton, 

Warden, No. E2007-02453-CCA-R3-HC (Tenn. Crim. App., Knoxville, Nov. 20, 2008).

On August 18, 2014, the petitioner filed a “Petition for Relief from 

Conviction or Sentence Pursuant to TCA 40-30-117a(1)(4).” On October 9, 2014, the 

post-conviction court summarily dismissed the petition, deeming it time barred.

On appeal, the petitioner challenges the summary dismissal of his 2014 

petition, arguing that the ineffective assistance of post-conviction counsel “excuse[d] the 

[p]etitioner[‟s] procedural default of a claim that his trial counsel was constitutionally 

ineffective[,] thus, denying [p]etitioner due process.” The State responds that the appeal 

was untimely filed and that, in any event, the petition at issue was not timely filed.

We must first address the petitioner‟s failure to timely file his notice of 

appeal. In its brief before this court, the State correctly notes that the petitioner‟s 

February 26, 2015 notice of appeal from the order dismissing his post-conviction petition 

was not filed within 30 days of the entry of the challenged judgment and is therefore 

untimely. See Tenn. R. App. P. 4(a). Although the petitioner states in his notice of 

appeal that he “did not receive the Court Order dated 10-9-14 until February 10, 2015,” 

he failed to request that we waive the untimely filing. However, in view of the 

petitioner‟s status as an incarcerated, pro se litigant, we will waive the timely filing 

requirement in the interest of justice. See id.
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The petitioner frames his issue as one pursuant to Tennessee Code 

Annotated section 40-30-117, which addresses motions to reopen post-conviction 

proceedings:

(a) A petitioner may file a motion in the trial court to 

reopen the first post-conviction petition only if the following 

applies:

(1) The claim in the motion 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 motion 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; or

(2) The claim in the motion 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 motion 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 motion must be filed within one (1) year of 

the finality of the ruling holding the previous conviction to be 

invalid; and

(4) It appears that the facts underlying the claim, if true, 

would establish by clear and convincing evidence that the 

petitioner is entitled to have the conviction set aside or the 

sentence reduced.

(b) The motion must set out the factual basis underlying its 

claims and must be supported by affidavit. The factual 

information set out in the affidavit shall be limited to 

information which, if offered at an evidentiary hearing, would 

be admissible through the testimony of the affiant under the 
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rules of evidence. The motion shall be denied unless the 

factual allegations, if true, meet the requirements of 

subsection (a). If the court grants the motion, the procedure, 

relief and appellate provisions of this part shall apply.

Id. However, the instant petition does not satisfy any of the statutory criteria to reopen. 

We will thus examine the petition as one for post-conviction relief. 

“[A] person in custody . . . must petition for post-conviction relief . . . 

within one (1) year of the date of the final action of the highest state appellate court to 

which an appeal is taken.” T.C.A. § 40-30-102(a). “If it plainly appears from the face of 

the petition, . . . 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. The order shall 

state the reason for the dismissal and the facts requiring dismissal.” Id. § 40-30-106(b). 

The statute of limitations for filing a post-conviction petition is jurisdictional. See id. § 

40-30-102(b) (“No court shall have jurisdiction to consider a petition filed after the 

expiration of the limitations period unless [certain statutory prerequisites are met].”). Our 

supreme court has held that “the one-year statutory period is an element of the right to 

file a post-conviction petition and that it is not an affirmative defense that must be 

asserted by the State.” State v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001). Thus, “it is 

incumbent upon a petitioner to include allegations of fact in the petition establishing 

either timely filing or tolling of the statutory period,” and the “[f]ailure to include 

sufficient factual allegations of either compliance with the statute or [circumstances] 

requiring tolling will result in dismissal.” Id.

A petition for post-conviction relief filed outside the one-year statute of 

limitations may nevertheless be considered if its allegations fall within three rather 

narrow exceptions:

(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. Such 

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; 

(2) The claim in the petition is based upon new scientific

evidence establishing that the petitioner is actually 
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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 such 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.

T.C.A. § 40-30-102(b)(1)-(3). Additionally, due process principles may, in very limited 

circumstances, require tolling of the post-conviction statute of limitations. See generally 

Seals v. State, 23 S.W.3d 272 (Tenn. 2000); Burford v. State, 845 S.W.2d 204 (Tenn. 

1992). To determine whether due process requires tolling of the statute of limitations, we 

must determine “when the limitations period would normally have begun to run”; 

“whether the grounds for relief actually arose after the limitations period would normally 

have commenced”; and “if the grounds are „later arising,‟ determine if, under the facts of

the case, a strict application of the limitations period would effectively deny the petitioner 

a reasonable opportunity to present the claim.” Sands v. State, 903 S.W.2d 297, 301 

(Tenn. 1995).

In the instant case, the petitioner challenged his 1996 convictions via a 

second post-conviction petition filed in 2014, more than a decade after the judgments 

became final. The statutory grounds for the tolling of the statute of limitations are not 

applicable. Moreover, due process principles do not mandate the tolling of the statute of 

limitations because the petitioner‟s convoluted claim for relief is not “later arising.” In 

addition, the instant petition is the second petition for post-conviction relief filed by the 

petitioner. “In no event may more than one (1) petition for post-conviction relief be filed 

attacking a single judgment. If a prior petition has been filed which was resolved on the 

merits by a court of competent jurisdiction, any second or subsequent petition shall be 

summarily dismissed.” T.C.A. § 40-30-102(c). Finally, the petitioner utterly failed to 

cite any law in the single-sentence, declaratory argument contained in his brief and has 

thus waived review by this court. See Tenn. Ct. Crim. App. R. 10(b) (“Issues which are 

not supported by argument, citation to authorities, or appropriate references to the record 

will be treated as waived in this court.”).

For all of the foregoing reasons, the judgment of the post-conviction court 

is affirmed.
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_________________________________ 

JAMES CURWOOD WITT, JR., JUDGE