IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 24, 2018

JUSTIN DANIEL LOINES v. STATE OF TENNESSEE

Appeal from the Criminal Court for Hamilton County

Nos. 274883, 298996 Don R. Ash, Senior Judge

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No. E2017-02088-CCA-R3-PC

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The pro se Petitioner, Justin Daniel Loines, appeals the dismissal of his petition for postconviction relief as time-barred. Following our review, we affirm the judgment of the 

post-conviction court summarily dismissing the petition on the basis that it was filed 

almost six years after the judgment became final and that the Petitioner failed to show 

any grounds to warrant that the statute of limitations be tolled. 

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

ALAN E. GLENN, J., delivered the opinion of the court, in which ROBERT H.

MONTGOMERY, JR., and TIMOTHY L. EASTER, JJ., joined.

Justin Daniel Loines, Pikeville, Tennessee, Pro Se. 

Herbert H. Slatery III, Attorney General and Reporter; Ronald L. Coleman, Assistant 

Attorney General; Neal Pinkston, District Attorney General; and Leslie Anne Longshore, 

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

OPINION

FACTS

In February 2010, the Hamilton County Grand Jury indicted the Petitioner for two 

counts of first degree felony murder, one count of aggravated child abuse, and one count 

of aggravated child neglect based on his involvement with his wife in the August 6, 2008 

death of his two-year-old stepson. In July 2010, the Petitioner pled guilty to the lesser 

offenses of voluntary manslaughter and facilitation of aggravated child neglect. Pursuant 

to the terms of his negotiated plea agreement, the two other counts of the indictment were 

dismissed, and he was sentenced as a Range I offender to consecutive terms of fifteen 

06/29/2018
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years for the voluntary manslaughter conviction and ten years for the facilitation of 

aggravated child neglect conviction, for a total effective sentence of twenty-five years at 

30% release eligibility. 

On July 7, 2016, the Petitioner filed a pro se petition for post-conviction relief in 

which he argued, among other things, that he was denied the effective assistance of 

counsel and that his facilitation of aggravated child neglect sentence was illegally 

enhanced without proof of prior felonies, in violation of Blakely v. Washington, 542 U.S. 

296 (2004).

1

The Petitioner additionally argued that the Tennessee Constitution and the 

Sixth Amendment to the United States Constitution should be read as providing a right to 

post-conviction counsel to a petitioner who alleges ineffective assistance of counsel in a 

first petition for post-conviction relief, and that the one-year statute of limitations for 

filing a post-conviction petition should be declared unconstitutional on the grounds that it 

deprives an indigent post-conviction petitioner the reasonable opportunity to assert a 

claim in a meaningful time and manner. 

On October 6, 2017, the post-conviction court entered an order summarily 

dismissing the petition on the basis that it was barred by the statute of limitations and the 

Petitioner failed to show he was entitled to statutory or due process tolling of the 

limitations period. The court additionally concluded that even if it treated the petition as 

a Tennessee Rule of Criminal Procedure 36.1 motion to correct an illegal sentence, the 

Petitioner would not be entitled to any relief. Thereafter, the Petitioner filed a timely 

notice of appeal to this court.

ANALYSIS

In his original and reply briefs, the Petitioner’s argument, as best as we can 

understand it, is that the statute of limitations for filing a post-conviction petition should 

be tolled in his case because of the nature of his allegations, which were that his 

“indictments were void” because his dual convictions for voluntary manslaughter and 

facilitation of aggravated child neglect violated the prohibition against double jeopardy, 

that his sentence for facilitation of aggravated child neglect was illegal under Blakely,

and that his trial counsel was ineffective for not recognizing and challenging the above 

violations of the Petitioner’s constitutional rights. The Petitioner cites Sutton v.

Carpenter, 745 F.3d 787 (6th Cir. 2014), for the proposition that applying the postconviction statute of limitations in his case “infringes on [his] right to seek a meaningful 

 

1

 In its order of dismissal, the post-conviction court referenced another claim the Petitioner 

apparently raised in his petition: that the Petitioner could not be convicted of both voluntary manslaughter 

and facilitation of aggravated child neglect because both offenses contain the same elements. That 

portion of the post-conviction petition is not legible on the copy included in the record. Regardless, we 

agree with the post-conviction court that the claim is without merit. 
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opportunity” to raise his claims. He asserts that Sutton “clearly says a defendant has a 

right to raise an ineffective counsel claim.” 

We respectfully disagree with the Petitioner’s contention that Sutton establishes a 

constitutional right to the effective assistance of post-conviction counsel and/or the right 

to raise a claim of ineffective assistance of trial counsel, regardless of the statute of 

limitations. We have rejected similar assertions in previous cases. See e.g., Michael V. 

Morris v. State, No. M2015-01113-CCA-R3-ECN, 2015 WL 9487829, at *2 (Tenn. 

Crim. App. Dec. 29, 2015); David Edward Niles v. State, No. M2014-00147-CCA-R3-

PC, 2015 WL 3453946 (Tenn. Crim. App. June 1, 2015), perm. app. denied (Tenn. Sept. 

17, 2015). 

Under the Post-Conviction Procedure Act, a claim for post-conviction relief must 

be filed “within one (1) 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 (1) year of the date 

on which the judgment became final, or consideration of the petition shall be barred.” 

Tenn. Code Ann. § 40-30-102(a) (2012).

The post-conviction statute contains a specific anti-tolling provision:

The statute of limitations shall not be tolled for any reason, including any 

tolling or saving provision otherwise available at law or equity. Time 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 the action and is a condition upon its exercise. 

Except as specifically provided in subsections (b) and (c), the right to file a 

petition for post-conviction relief or a motion to reopen under this chapter 

shall be extinguished upon the expiration of the limitations period.

Id.

Subsection (b) of the statute sets forth the three narrow exceptions under which an 

untimely petition may be considered, none of which is applicable in this case. Nor are 

there any due process considerations in this case that would require tolling of the statute 

of limitations. See Whitehead v. State, 402 S.W.3d 615, 622-23 (Tenn. 2013) 

(identifying three circumstances under which due process requires tolling of the postconviction statute of limitations: (1) when a claim for relief arises after the statute of 

limitations has expired; (2) when a petitioner is prevented by his or her mental 

incompetence from complying with the statute’s deadline; and (3) when attorney 

misconduct necessitates the tolling of the statute).
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We, therefore, conclude that the post-conviction court properly dismissed the 

petition as time-barred. We further conclude that the court also properly found that the 

Petitioner is not entitled to relief even if his petition is liberally treated as a motion to 

correct an illegal sentence. Rule 36.1 of the Tennessee Rules of Criminal Procedure 

provides in pertinent part that “[e]ither the defendant or the state may[, at any time,] seek 

to correct an illegal sentence by filing a motion to correct an illegal sentence in the trial 

court in which the judgment of conviction was entered.” Tenn. R. Crim. P. 36.1(a). 

Rule 36.1 defines an illegal sentence as “one that is not authorized by the applicable 

statutes or that directly contravenes an applicable statute.” Id. If the motion states a 

colorable claim that the sentence is illegal, and the defendant is indigent and not already 

represented by counsel, the trial court is required to appoint counsel to represent the 

defendant. Tenn. R. Crim. P. 36.1(b). A colorable claim pursuant to Rule 36.1 is “a 

claim that, if taken as true and viewed in a light most favorable to the moving party, 

would entitle the moving party to relief under Rule 36.1.” State v. Wooden, 478 S.W.3d 

585, 593 (Tenn. 2015). 

As the post-conviction court noted in its order, the Petitioner’s offenses contain

different elements, and his convictions thus do not violate the prohibition against double 

jeopardy. Moreover, “the purpose of [Rule 36.1] is to provide an avenue for correcting 

allegedly illegal sentences. The Rule does not provide an avenue for seeking the reversal 

of convictions.” State v. Jimmy Wayne Wilson, No. E2013-02354-CCA-R3-CD, 2014 

WL 1285622, at * 2 (Tenn. Crim. App. Mar. 31, 2014) (emphasis in original), perm. app. 

denied (Tenn. Nov. 19, 2014).

The Petitioner’s assertion that his ten-year sentence was illegally enhanced 

without proof of prior felonies, in violation of Blakely, also fails to state a colorable 

claim for Rule 36.1 relief. The Petitioner’s ten-year sentence was the result of a 

negotiated plea agreement and fell within the eight-to twelve-year range for a Range I 

offender convicted of a Class B felony. Accordingly, the Petitioner has failed to state a 

colorable claim for relief under Rule 36.1, and the post-conviction court properly 

dismissed the claim without a hearing.

CONCLUSION

Based on the foregoing authorities and reasoning, we affirm the judgment of the 

post-conviction court summarily dismissing the petition for post-conviction relief as 

time-barred. We further conclude that the court also properly found that the Petitioner 

has no claim under Rule 36.1. 

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ALAN E. GLENN, JUDGE