### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT NAS HVILLE D ec em be r 18, 200 7 S es sio n

CR AIG R OBER T N UN N v. STA TE OF TEN NES SEE

Direc t Appeal from the Cr im inal Cou rt for Davidson Coun ty

No. 98-C- 1622 Seth Norm an, Jud ge

No. M2007- 00974-CCA -R3-P C - F iled Augu st 18, 2008

Th e pe tit ion e r, Cr a ig Rob e rt Nunn , a pp e a ls the po st- c on vic tio n c ourt ’s de nia l of his pe tit ion

fo r p os tconviction re lief fr om his ag g ravated s exual battery convictions. The petiti oner first argues that the post-conviction cour

t erre d in finding that due proc ess considerations did not tol l the statute of limit ations. He fur

ther a rg ues that the post-c onviction c ourt, which also consider ed his claims on the merits, er

red in findingthat he re ceive d eff ective a ssistance o f t ri al counse l. Following our revie w, we a ffirm the post-c onviction court’s de nial on its merits of the petition.

Tenn. R. App . P . 3 Appeal as of Right; Judgme nt of th e Cr im inal Cou rt A ff irm ed

A L AN E. G L EN N , J ., delivere d the opinion of the cour t, in which J A M ES C U R WO OD W I TT , J R ., J
., joined. D. K EL L Y T HOMAS , J R ., J
., filed a c oncurr ing opinion.

J ames A.H

. Bell and Richard L . Holcomb, Knoxvil le, Tenne ssee, f or the a ppellant, CraigRobert Nunn.

Rob e rt E. Coo pe r, Jr., Attor

ne y Ge ne ra l and

Re po rt e r; Pr e sto n Sh ipp , A ssi sta nt A tto rn e y

Ge ne ra l; Victor S. J ohnson, I I I , District Attorney Gene ral; and D an Hamm, Assist an t District Attorney Gene ral, for

the appe llee, State of Te nnessee

.

OP IN ION

F AC TS

I n J anuar y 1999, t h e p et i t i o ner ple d g uilty in the Davidson County

Criminal Court to four counts of ag g ravated sex ual batter y in exchang e for

concur rent sente nces of

twelve y ear s at 100 perc ent for e ach c onviction. At the time the crimes occur red, the petitioner was a tra uma surg eon at Vande rbilt H ospital in Nashville, where the four vic tims, t hree twelve- y ear -old g irls and one teny ea r- o l d g irl, were hospitaliz ed with cr itical illnesses. At the g uilty plea he aring , the prosec utor

re c ite d th e fo llo wi ngfa c tua l ba sis fo r t he ple a s:It is the p o licy o f t h is c o u rt to re fer to m ino r v ic tim s o f sex u a l as sa u lt b y the ir initials. 1

-2- Yo ur Ho no r, if

c a lled up on

a t tr ia l, t he State ’s pr oo f w ou ld b e a s f oll ow s: That the four v i ct ims in t his case w ere all children unde r the a g e of thirtee n. Eac h

wer e [sic] hospitaliz ed at Va nderbilt Hospital, which is here in Davidson County [,] for se ri ous medical c onditions. The [ petitioner] was not a doctor f or any of the children.

Count One involves a child by the name of [S .V.], who, if ca lled upon at trial 1 would testify

that on 12-10-97 a

man enter ed her

room in a white lab c oat. The ma n

a sk e d if s h e w a s w e ar i n g a b r a o r t r a i n i n g b r a

an d p r o c e e d e d

t o t o u c h h e r

b r e a sts

. The pe rson who appe are d to be a doc tor then left the r oom.

Count Three involves a child by the name of [M.B.], who

. . . would testify that on the 12 of Janu ary , 19 98
, a man, sim ila r to the de sc ri pti on g ive n p re vio us ly th by [S .V.] came into her r oom and touched he r ar ound her br east a nd pubic ar ea.

Count Five re prese nts a child by the name of

[B.G.], who would testify that on the 11 or 12 of J anuar y , 1998, a man of also similar desc ription, touched her on th th the pubic ar ea a s he pulled her panties down.

Count Nine involves a child by the name of

[D.S .]. I n reg ards to Count Nine [D.S .] would t estify

that on Fe bruar

y 8 , 1998 a man, al s o of similar descr iption, th

came into her room and dig itally penetr ated he r vag ina.

The prose cutor infor

med the trial c ourt that police investig ators, with the coope ration of Vande rbilt officials, had obta ined videotape that showed the petitioner pulling the medic al cha rts of the victims and enter ing the ir rooms. When questioned by the police, the pe titioner made a statement in which he admitted he wa s sexua l l y at t ra ct ed to adolescent g irls and had g iven “examinations” to the victims, who were not his patients.

On Ap ri l 13 , 2 00 5, the pe tit ion e r f ile d a pe tit ion fo r pos t- c on vic tio n re lie f, wh ic h th e po stcon v ic ti o nc o u rt d is mi s s e d a s u n ti me ly

. O na

p p e a l, th e p e ti ti o n e r

ar g u e d th a t t h e s tatute of limit ations should be tol led because: (1) his g uilty plea ag ree ment contained pr ovisions st ating that h e w o u ld n o t s e e k to w it h dr aw o r a lt e r h is g u il ty p le a s in an y w ay an d w o u ld f il e n o a p p eal or challeng e to the convic tions or se ntence s, and (2) his tria l counsel informe d him that he was wa iving his ri g ht t o b oth

dir e c t and po st -co nv ic tio n a pp e a l by sig nin g the g uil ty

ple a a g re e me nt. Cr a ig Robert Nunn v. State, No. M 2 005-01404-CCA-R3-PC, 2006 WL 680900, at *1-2 (T enn. Crim. App. Mar. 17 , 2 00 6) . F ind ingthat th e re c or d n e e de d f ur the r d e ve lop me nt, thi s c ourt re mand e d th e c a se to the post-conviction cour t with inst ructions to hold an ev i d en t iary hear ing to de termine “ the circ umstances surr ounding the g uilty plea, the ad v ice g iven, and whe ther this prec luded the [p] etitioner fr om filing a

timely petition for post-conviction re lief.” I d. at *6.-3-

I n his post-c onviction pe tition and in this curr ent appea l, the petitioner alleg es that t ri al

c ouns e l w a s in e ff

ect iv e fo r f

a ili ngto p ro pe rl y

a dv ise the pe tit ion e r o f t he ma ximumpo ssi ble
sentenc e he w ould rec eive if c o nvicted of a ll counts at trial; failing to adequately investigate the alleg ations in the indictment, inc l u d i ng whether the petitioner suff

ere d from a me ntal disorder

re l ev an t t o his defense and whe ther the f acts a lleg ed by

the victims were consistent with the pe tit ion e r’ s c on dit ion ; f

a ili ngto p ro pe rl y

a dv ise the pe tit ion e r a

bo ut the imp a c t of the un a va ila bil ity of two of the vic tims at trial; and failing to properly advise the pe titioner about t h e trial c ourt’s ability to enhanc e the se ntence s based on f actor s that were not fo und by the jury . The pe titioner additionally

alleg es that the cumulative eff ect of the above err ors resulted in his being deprive d of the e ff e c tiv e a ssi sta

nc e of tr ia l c ouns e l.

At the September

22, 2006 evidentiar

y hear ing, t he petitioner te stified that he hire d trial

c ouns e l in

the sp ri ng of 19 98 and ple d g uil ty in Janu ary 19 99 . T o h is k

no wl e dg e , tr ia l c ouns e l di d not file any

evidentiar

y or pre trial motions on his behalf

. Trial counse l also failed to re tain an i n v e s t i g a t o r , i n t e r

v i e w w i t n e s s e s , o r

h a v e t h e p e t i t i o n e r

u n d e r g o a

f o r e n s i c e v a l u a t i o nb y a psy chiatrist or psy cholog ist. The petitioner said that he w as see i n g a p s y chiatrist at the time for de pr e ssi on

bu t w a s n ot e va luate d w ithre sp e c t to any po ssi ble me nta l or

me dic a l c on dit ion

that w ou ld have been releva

nt to the case . The pe titioner testified that trial counse l informed him that he wa s likely to rec eive 108 y ear s if the ca se proc eede d to trial, telling him that a trial wa s a “huge risk,” and
t h a t t h e t r i a l j u d g e w o u l d r u n a l l h i s s e n t e n c e s c o n s e c u t i v e l y , w h i c h m e an t t h a the wo uld die in prison. The pe titioner said t h at this information, which made him fe el “[s] ick,” wa s a motivating fac tor in his decision to acc ept the State’s of fer of a twe lve-y ear

sentenc e at 100 pe rce nt.

The pe titioner testified that he revie wed the evidenc e ag ainst him but did not rec all having

a “ wh ole lot of dis c us sio n” wi th t ri a l c ouns e l a

bo ut i t. T ri a l c ouns e l di d, ho we ve r, te ll h im that hi s statement to police could be considered a confe ssion, a chara cter ization that the petitioner did not be lie ve to b e a c c ur a te . T he pe tit ion e r s a id t ri a l c ouns e l e xpla ine d the c ha rg e s a g a ins t hi m and

tol d him that he could be c onvicted for eac h separ ate c ontact with an individual victim even if the
contac ts occurr ed at the sa me time. Trial counse l a lso told him that the sepa rate counts could “ve ry well stand.” The petitioner testified that trial counsel did not investig ate the me dical condition of the victims, two of whom wer e in g rave con d i t i o n an d h ad since died, to asce rtain whe ther they

wo uld be abl e to te sti fy

a g a ins t hi m a t tr ia l. H e sa id t hat tr ia l c ouns e l to ld h im that th e vic tim s’ serious illnesses made the m likely to be per ceive d in a more sy mpathetic lig ht. The petitioner testified that when he asked be fore sentenc ing a bout a possible reduc tion in his time, trial counsel told him t hat his g uilty plea include d a wa iver of his rig hts to attack the plea ag ree ment or to appe al in any way . He sa id he took that to mean that “it wa s set in stone and it was done and [he] couldn’t appea l.”

The pe titioner testified that trial counsel told him that he would re main his attorney until the pe tit ion e r c omp le te d h is s e nte nc e a t th e De pa rtme nt of Cor re c tio n, or

fo r a pp ro xima te ly

te n y e a rs

. I n a dd iti on

to r e pr e se nti nghim

in the c ri min a l ca se , tri a l couns e l re pr e se nte d him in the c ivi l su its that arose out of the incidents and continued his r epre sentation in that capa city throug h 2005. The petitioner said that trial c ounsel visited him in prison m any times, inc luding more than a y ear afte r-4-

the e ntr y of his g uil ty ple a s, to d isc us s b oth

the c ri min a l and

c ivi l c a se s. I n ad dit ion , tr ia l c ouns e l,

on sever al occ asions, asked him to revie w and e valuate othe r medica l malprac tice ca ses for him and his firm, which the pe titioner did free of cha rg e.
The pe titioner testified that he did not lear n about the possibility

of filing a post-convic tion petition until the middle of 2004 when post-conviction counsel first became involved in his case; up until that ti me, he did not know that his gu i l t y pleas did not prec lude him from ra ising issues of ineffe ctive assistanc e of c ounsel or prosecutorial mi sconduct in a petition for post-c onviction relief. He sa id that trial counsel told him that he had wa ived all his rig hts by enter ing his guilty pleas. Tr ial counsel ne ver mentioned any thing to him about his r ight to f ile a petition for post-c onviction relief or about the one -y ear

statu t e of lim itations for doing so. The petitioner te stified that he ther efor e int e rp re te d th e pr ov isi on

in h is guil ty

ple a agreement that st a te d “ no a pp e a l or c ha lle ng e to s a id conviction is maintained by Craig Nunn” to mea

n that “it was over for g ood and [he] wouldn’t be able to do any

thing a bout it, ever.” Had he known he ha d the rig ht to file a post-convic tion petition, he would have done so within the first y ear of ente ring his guilty

pleas.

On cr oss-examination, t

h e p e titioner testified that post-conviction counse l informed him that the 108 y ear s trial counsel ha d led hi m t o b el i eve he would rec eive if c onvicted at tria l was an “outra g eously

high” estimate. He said that he wa s never particula rly s atisfied with his plea ag ree ment. Although he had “voy euristic tende ncies .

. . that wer e proba bly inappropriate,” he was not guilty of ag g rava

ted sexual battery

and thoug ht that he could have rec eived a sentenc e involving some sort of tre atment, instead of inc arc eration, h ad h is trial counsel investig ated his ca se more thoroug hly

. He s ai d h e did not hire a nother law y er, de spite not being happy with trial counsel’s advice , beca

use he ha d been told that trial c ounsel was the be st lawy er in M i d d l e T en n essee . He acknow ledg ed that he w as aw are of other inmate s filin g p o s t -c o nviction petitions but said that he assumed, base d on what trial counsel told him, that his own g uilty plea a g ree ment included a w aiver of his rig ht to petition the court for post-conviction relief

. Upon further questioning , the petitioner testified that he did not become dissatisfied with tr ial counsel’s r epre sentation until he learne d from his post-conviction counsel in 2004 that h e h ad t h e right to file a post-c onviction petition. He explained, however , that he wa s not familiar with the law and had not r ealized until 2004 that ther e

wer e issues such as the multipl icity of the indictment and the voluntariness of his statement that tria l counsel ha d failed to pursue

.

Dr. F red B erlin, a spe cialist in forensic psychiatry with expertise in the are a of se x ual disorders, testified that he interview ed the pe titioner on Aug ust 18, 2006. He also re viewed the

rec ord of the petitioner’s c ase, inc luding the pe titioner’s statement to police, the a lleg ations made by the victims, the indictment, a nd the plea ag ree ment. Fr om his review, he noted two things w hich sug g ested that the pe titioner should have bee n evaluated by a for ensic psy chiatrist to deter m i ne whether he had a psy chiatric disorder r eleva nt to his defense. F irst, the petitioner wa s a succ essful
trauma sur g eon in his mid-thirties who, “out of the blue,” beg an to ex ami ne y oung fema les in a pediatric unit who were not his patie n t s

. S ec o nd, the petitioner infor med the intervie wing police of fi c e r t hat he kn e w h e ha d a

pr ob le m, w ante d tr e a tme nt, and ha d ev e n d isc us se d th e iss ue wi th s ome friends, but that he had manag ed to control hi mself over the y ear s until t he re cent e vents transpire d.-5-

Such irrational be havior, in Dr. B erlin’s judg ment, indicated that the pe titioner shou ld have underg one a thor oug h psy chiatric assessment.

Dr. Ber lin testified t hat he diag nosed t he petiti oner as suffe ring from voy eurism, a c ateg ory of sexual disorde r in which “ the af flicted individual experience s intense re curr ent er otically arousing . . . fanta sies and urg es about looking at an unsuspec ting, naked strang er.” He sa id that for such a n

a ff lic te d indi vid

ua l, the a c t of loo kin g , in and of its e lf , p ro vid e s th e se xua l e xcit e me nt; “ g e ne ra lly no sexual activity

with the observe d person is sought

. ” According to Dr. B erlin, what was particula rly arousingto the petitioner wa s viewing the pubic ar ea of someone that he believed to be virg inal. He said that the petit ioner’s statement to the pol ice, in which he repe atedly said that he wa s

arouse d simply

by the ac t of looking and had not touched the victims in a sex ual way , was c onsistent wi th a dia g no sis of

vo y e ur ism :

Yea h, he was touching them without permission so Idon’t want to say that’s okay . But t h ere is no evidence , from the psy chiatric perspe ctive that the touching

wa s er o t i ca l l y , s ex u al l y ar o u s i n g. W h at wa s ar o u s i n g fo r h i m wa s t h e a ct o f l o o k i n g, being a phy sician and g oing in ther e, ac tual l y doing a medical e x am was a

way he

c ou ld l oo k, he ho pe d, wi tho ut c a us ingany dis tr e ss t o th e se ind ivi du a ls. B ut i f my diag nosis of voy eurism is corr ect, a nd as I said, Ihave w ithin reasonable medical

c e rt a int y c ome to that c on c lus ion
, that the aro us ing pa rt fo r h im w a s th e vo y e ur ist ic part a nd he has c onsistently

said that over the y ear s.

At no po int ha s h e e ver

sa id o r a c kn ow le dg e d th a t to uc hin g wa s e ro tic a lly arousingto him.

Dr. B erlin believe d the same dia g nosis would very likely have be en re ache d in 1999 had the petitioner bee n evaluated by a for ensic psy chiatrist wit h acc ess to his complete re cord, a s opposed
to a treating c linician who may have never seen the police report of the i ncidents. He said he thoug ht

su c h a dia g no sis wo uld

have be e n r e le va

nt a t the g uil t/i nn oc e nc e sta g e of the tr ia l be c a

us e it w ou ld have a dded cr edibility

to the petitioner’s c laim that he had no t t o u ch ed t he victims for sexual g ratification. The diagnosis would have also made it less likely for the pe titioner to be convicte d on the counts of the indictment ba sed on the a lleg ations of S.V., who claimed tha t s h e had be en

as s a u lt e d b y tw o me n w h o c a me in to h e r r o o m to g e th e r

. A c c o r d in g to D r

. B e r li n , a d ia g n o sis of

vo y e ur ism

me ant t ha t it wa s “ a lmo st i nc on c e iva

ble tha t th is w ou ld h a ve be e n don e in c oll us ion wi th another person.” He testifi ed t h at he thought the diag nosis, including the infor mation that the condition w as amena

ble to tr eatment, would have been rele vant to the trial court at sentenc ing. He said that there wer e “me n t al impairments, diminis hed ca pacity , both cog nitive and volitional associate d with a sexual disorder such as voy eurism” that could have conce ivably been vie wed a s a mitigating f

actor . Finally , he thoug ht that the petitioner “mig ht have looked at his options very differ ently ” had he known that the jur y might “he ar a

bout voy eurism and c onclude that this wasn’ t tou c hin g do ne fo r s e xua l r e a so ns ,” wh ic h me ant t hat “ it m ig ht n ot have be e n so c le ar t hat he c ou ld [have] been convicte d on an ag g ravated sexual battery char g e.”-6-

Dr. Ber l i n t es tified that the petitioner showe d signs of both cog nitive and volitional imp a ir me nt at the tim e of the inc ide nts , a s e vid e nc e d b y the vid e ota

pe of his wa lki ngba c k a

nd fo rt h in the hallway befor e enter ing the victims’ rooms and by his statement to police, in which he spoke of be ingtor me nte d b y

his ur g e s and

a pp e are d to be a tte mpt ingto r atio na lize his be havio r. Dr . B e rl in did no t be lie ve , h ow e ve r, that th e pe tit ion e r’ s me nta l im pa ir me nts qu a lif

ie d h im f or an in sanit

y defe nse. On c ross-examination, Dr. B erlin ac knowledg ed that the victims’ alleg at i o n s of sexual touching , including touc hing of the bre ast and va g ina, would not be consistent with a diag nosis of voy eurism. He further acknow ledg ed to the post-conviction court that the pe titioner had admitted the fa ctual alleg ations, including the sexual touching, whe n enter ing his guilty pleas.

David M. Sieg el testified that he w as a pr ofessor of leg al ethics at New Eng land School of L aw an d a l i ce n s edat t o rn ey i n T e n n e s s ee , M as s ac h u s et t s , an d t h e D i s t ri ct o f C o l u mb i a, al t h o u gh his lic e ns e in t

he Di str ic t of

Col umb ia

wa s c ur re ntl y ina c tiv e

. He state d th a t th e wa ive r o f r ig hts in the pe tit ion e r’ s g uil ty ple a a g re e me nt, wh ic h in c lud e d th e c on dit ion “ that no a

pp e a l or c ha lle ng e to said conviction or se ntence is maintained by Craig Nunn,” pr esente d a funda mental ethica l problem beca use it was all-inc lusive, containing no exemption t o allow for a challeng e to the g uilty plea itself, the eff ectivene ss of trial counsel, or prosec utorial misconduct. He said that s u ch al l -inclusive waiver s were not enforc ed and, upo n f u r th e r q u e s ti oning by

post-conviction counse l, beg an to re view

sever al of the f

eder al cases which have found simil ar waivers unenforc eable

. The post-c onviction court interr

upted to announce that it “whole hea rtedly ” ag ree d, and post-convic ti o n co u n s el then observe d that it was his understandingthat the use of s u ch al l -i nclusive wa ivers in the g uilty plea forms, which ha d been pa rt of a “ sy stemic problem,” ha d since be en eliminated.

Siege l testified that it is t he re sponsibili ty of a c riminal d ef

en s e lawy er to investig ate the possible mental health issues in any case . He sa id he thoug ht it was essential to use an inde pendent

me nta l he a lthex pert rat her than a tr e a tin g ph y sic ian o r p sy c ho log ist fo r a numbe r o f r e a so ns

. Am o n g t h es e w er e t h at “[ t ] h e r o l e o f d o i n g a f o re n s i c a s s es s m en tm ay

i n v o l v e ge t t i n g d o wn t o t h i n gs that . . . [m ay ] not [be] psy cholog ically benef icial to the def

endant” ; a t reating psy chiatrist or ps y c ho log ist

do e s n ot ne e d to look a t the c a se fi le wh ile su c h in fo rm a tio n is e sse nti a l to a fo re ns ic psy chiatrist; and a f

orensic psychiatrist’s role is to work with t h e lawy er w ith respec t to how the information he or

she obtains ca

n be used in c ourt, a subjec t which is irrele vant t o the treating ps y c hiatr ist . In a dd iti on , c on fi de nti a lity iss ue s w ere di ff

e re nt i n th a t th e fo re ns ic ps y c hiatr ist
, working as par

t of a de fense team, “is not susceptible to the s ame sort of discovery” as the treating psy chiatrist. Sieg el said that the history of the pe titioner’s ca se “c erta inly raise[d] t h e is sue” of wh e the r h e ha d a

me nta l he a lthpr ob le m. F or that r e a so n, he be lie ve d th a t tr ia l c ouns e l’ s f a ilure to ob ta in a n in de pe nd e nt m e nta l hea lth e xpe rt to i nv e sti g a te the pe tit ion e r’ s me nta l he a lthiss ue s f e ll below the a cce ptable standa rd of c are

.

Trial counse l, a lawy er with ove r thirty y ear s of experienc e, testified that he had spent thre e y ear s doing appellate criminal work in the office of the S tate Attorney Gene ral followe d by

seven y ear s in the district attorney ’s offic e in Nashvill e before e ntering private pr actice , wher e he f ocused almost ex clusively on criminal cases. During that time, he had written several books, including the thr e e -v olume Te nn e sse e Cr imi na l Pr a c tic e and Pr oc e dure . H e state d th a t th e pe tit ion e r h ir e d h im-7-

in April 1998 afte r he had taken a poly g raph test and g iven his state ment to police but be fore he had be e n in dic te d. He and th e ini tia l a ssi sta nt d istri c t a tto rn e y

g e ne ra l a ssi g ne d to the c a se ha d s ome limit ed discussions about discover y issues at the outset. That a ssistant dist rict attorne y later le ft the district attorney ’s offic e, and tr ial counsel then had an “enor mous number of c onversations” with the assistant district attorney

who took over the case . The sec ond assi s t an t district attorney provided adequate discover

y to him
, i n cl u d i n g information about the names and a g es of the vic tims, t he videotape of the petitioner outside the victims’ r ooms, the petitioner’s statement to police
, and the results of the photog raphic lineups shown to the victims.

Tr ia l c ouns e l te sti fi e d th a t the pe tit ion e r me t wi th Dr . Pa ul R a g an, a

Va nd e rb ilt ps y c hiatr ist
, who eva luated his compete ncy to stand trial and tre ated him for his suicidal thoughts and depre ssion. Ba sed on his evaluation, Dr. Rag an dete rmined that the pe titioner was compe tent to stand trial and that an insanity defe nse could not be supported. Trial counse l stated that he wa s looking for any thing to defe nd the ca se on its merits a nd that part of Dr. Rag an’s evaluation include d a dete rmination of wh e the r t he pe tit ion e r wa s su ff

e ri ngfr om a

ny so rt of me nta l he a lthiss ue s th a t w ou ld b e he lpf ul t o the def ense. H oweve r, in tr ial counsel’s profe ssional opinion, the mental hea lth issues uncovere d by Dr. Rag an “w ould be not helpful to the extreme.” D r. Rag an told him that the petitioner “ eng ag ed in extraordinarily high risk activities to stimul ate hims elf,” had a “fa scination with y oung er bodie s

an d y o u n g e r g ir ls
, ” an d

h a d ma r r ie d anA s ia nw o ma nb e c a u s e “ s h e lo o k e d

li k e a y o u n g g ir l.” Be cause such information was “c onsistent with what the State was sug g esting ,” tr ial counsel believed it would be contra ry to the petitioner’s interest to pur sue such a defe nse. Trial c o u nsel testified that Dr. Rag an neve r used the w ord “voy eurism” and made no mention of the petitioner’ s interest in looking a s opposed to touching

. What he rec alled, instead, was Dr . Rag an’s discussion of the pe titioner’s interest in “sexuality as i t related to y oung g irls.” Trial c ounsel testified: “Now
, wh e the r t hat w a s lo ok ing or tou c hin g , I do n’ t thi nk we e ve r g ot int o that le ve l of sp e c if ic ity

. I n my mind, . . . when he said he had some interest in y oung g irls, whether it’s looking or touc hing, I ’m not g oin g the re .” Mo re ov e r, the pe tit ion e r a lw ay s ma int ained to h im that hi s e nc ounte r w iththe g ir ls was “ one of a

n examination,” which involved touching . Trial counse l said that the petitioner eve n admitted in his statement to police that he had taken a “ g roin pulse” on one of the victims.

Trial counse l testified that he fully discussed these issues w ith the petitioner:

Well, we had multiple conver sation s throug hout the repr esentation. I was looking f or any thing to def

end the c ase on the merits. As to his lack of intent, but we kept running off the pr oposition that he had ma de an inc ulpatory statement. I

don’t

wa nt t o c a ll i t a

c on fe ssi on , b ut h e ha d c e rt a inl y ma de an in culp a tor

y state me nt, toge ther with w hat the g irls w ere saying happen[ed], w as simply devastating. And

so the iss ue the n wa s h owc an I de fe nd thi s o n th e me ri ts, wh e re Ic an tw ist in s ome sort of psy chiatric or psy cholog ical eva luation or defe nse. And in my view, ther e wa s not enoug h substance to a ny kind of m en t al h ea lth defense , some sort of devia nt

me nta l he a lthdefe ns e th a t I c ou ld u se . T ho se so rt s o f d e fe ns e s a re e xtra or din ari ly dang erous, a

nd unless y ou have a powerful defense or some very solid defense , they

are fra ug ht with disaster.-8- What Dr. R[ ]aga

n was telling me was pr ecise ly the kind o f thing that [t he petitioner] had said to the detec tives, about eng ag ing i n high r isk behavior or whateve r. And that wa s cer tainly not helpful to me.

Trial counse l ag ree d that althoug h the petit ioner’s statement to police did not rise to the level of a c on fe ssi on , it

did n ot fall sh or

t of on e by muc h e ith e r. He sa id h e did no t f ile a mot ion to suppress the state ment but used eve ry conce ivable ar g ument in his discussions with t h e assistant distr ic t a tt o r

n e y a s to w h y th e s tate me n t w a s d e f ic ie n t an d s h o u ld b e s u

p p r e s s e d

. I n the end, he believed that his threat to file a solid motion to suppress w as wh at i n d uced the assistant district

a tto rn e y to m a ke the of

fe r she did

. Tr ia l c ouns e l te sti fi e d th a t th e re we re sig nif ic ant a rgume nts in favor of suppre ssing the statement but, based on his experienc e, he did not think he would have be en

s u cc es s fu l with a motion to suppress. He, ther efor e, re commended that the petitioner ac cept the State’s offe r.

Trial counsel acknow ledg ed he told the petit ioner that he ran a hug e risk of be ing c onvicted

a t tria l and that the tr ia l ju dg e c ou ld g ive him su c h a le ng thy se nte nc e that he wo uld

sp e nd the re st of his eff ective l i fe in prison. He stated that he alwa y s informed c lients of their theore tical or
statut or y ma ximumse nte nc e , a s we ll a s wh a t he be lie ve d the mos t pr ob a ble se nte nc e to b e . In th is

c a se , he inf

or me d the pe tit ion e r bot

h ve rb a lly and in wr iti ng that he tho ug ht, if c on vic te d, the mos t probable result would be a sentenc e “some wher e in the 30 to 40 y ear rang e.” H e sa i d he told the petitioner that he did not think the State would succ eed in pr oving the penetr ation require d to convict him of rape but that he could be convicted of four c ounts of ag g ravated sexual battery and that the trial judg e could r

un some of the se n t en ce s co nsecutively . Trial counse l said he believe d the pe tit ion e r f

ull y un de rs too d a

nd a pp re c ia te d the be ne fi ts an d ris ks of g oin g to t ri a l a s o pp os e d to tho se of ac ceptingthe g uilty

plea a g ree ment.

Tr ia l c ouns e l te sti fi e d th a t he c on tin ue d to re pr e se nt t

he pe tit ion e r a ft e r the e ntr y of his g uil ty pleas in the c ivil sui ts t h at ar o se out of the same incidents. Duringthat time, from J anuar y 1999 thr ou g h 2 00 3, he a lso oc c a sio na lly a sk e d th e pe tit ion e r t o r e vie w m e dic a l r e c or ds and give his medical opinion in other medic al malpra ctice c ases. Most of th ei r co nversations, however, w ere

a bo ut t he pe tit ion e r’ s c ivi l c a se , w hic h tr ia l c ouns e l w a s st ill ha nd lin g a s la te a s Apr il 2 00 3. He sa id that he and the petitioner maintained a g ood relationship and that the petitioner neve r expressed dissatisfaction with his rep re s en t at i o n

. At some point in either late 2002 or 2003, howeve r, the petitioner’s pa

rents conta cted him about filing a post-conviction petition on the petitioner’s be half. Tr ia l c ouns e l sa id t

hat he tol d th e m th a t he c ou ld n ot d o th a t:

I t was m ostly

from his family . Italked to [the petitioner] about thi s and he said, well, let them do whatever they want to do or something. He wanted to, it was dif fi c ult fo r m e to dis c us s be c a

us e his pa re nts re a lly

c are fo r h im a

nd wa nte d to he lp him in ev e ry wa

y a nd the y we re de sp e ra

te to t ry to h e lp h im. Iwa

nte d to he lp h im, I ’d do any thi ng to he lp him

. An d tow ard s the e nd be fo re [pos t- c on vic tio n c ouns e l]

c a me in, the re wa s a

me nti on ma de of g e tti ngso me kin d o f, fi lin g so me kin d o f p os t

c on vic tio np e t i t i o n

. B u ti tw a s v e r y v a g u e an d

It o l d t h e m Iw a s n ’ tg o i n g t o d o i t,-9-

couldn’t do it, wouldn’t do it. And then his mother said that they would talk to other lawy e rs or

so me thi ng , a

nd the n o ne da

y Ig e t a c a ll f ro m [po st- c on vic tio n co un se l] and he’ s involved in the case

.

On cr oss-examination, trial counsel testified that he did not hire a private inve stigator but investigated the ca se hi m s el f t o t h e best of his abilit y by revie wing discovery

and talking to the petitioner, the petitioner’s psy chiatrist, and the assistant district attorney

. He stated that the assistant district attorney

had made him awar e of the victims’ he alth conditions, inc luding that two of them

wer e g rave ly

ill, and that there w as some discussion about taking the deposit i o n o f o ne of the victims. He stated that the assistant district attorney announce d at one point that they wer e “g oing to try this thi ng beca

use [she thought she w as] going to lose one of these g irls.” Trial c ounsel testified that the possibili ty of the pe titioner’s being convicted on a ll the counts was, in his opinion,

“ e xtra or din a ri ly

low ,” a s so me of

the c ounts we re ple a de d in the a lte rn a tiv e

. I n his be st j ud g me nt, the worst case scena

rio involved the petitioner’s be ing c onvicted of f our counts of a g g ravated sexual batte ry and the tr ia l ju dg e or de ri ngc on se c uti ve se nte nc e s f or the c ounts inv olv ing dif fe re nt v ic tim s.

On Ap ri l 20 , 2 00 7, the po st- c on vic tio n c ou rt e nte re d a n o rd e r d e nyingthe pe tit ion fo r p os tconviction re lief. Among other thing s, the court f ound that it was “h i gh l y d o u btful,” g iven trial

c ouns e l’ s e xpe ri e nc e and re pu ta tio n, that he ha d mi sle d th e pe tit ion e r i nto be lie vin g that he c ou ld not file a pe tition for post-convicti o n re l i ef

. The c ourt, there fore , conclude d that the statute of limit ations should not be tolled. After consideration of t he mer its of the petitioner’s a lleg ations of ineffe ctive assistanc e of c ounsel, the cour t further conclude d that even if due proc ess re quired tolling of the statute of limit ations, the petitioner had failed to me et his bur den of de monstrating that trial counsel “ brea ched th e s t an d ar d of ca re de manded of

defe nse attorne y s in their repr esentation of defe ndants.” The rea fter, the petitioner filed a timely appea l to this court.

AN AL YSI S

I. P os t- Co nvi c ti on St at ut e of Lim it at ion s

Th e pe tit ion e r fi rs t conte nd s tha t the po st- c on vic tio n co ur t er re d in fin din g that du e pr oc e ss

c on sid e ratio ns did

no t to ll the on e -y e ar s ta tut e of lim itatio ns fo r b ri ng inga pe tit ion fo r p os tc on vic tio n r e lie f. He argue s tha t the pla in langua g e of his g uil ty ple a a g re e me nt, c omb ine d w ithhis unref uted testimony

that trial counsel told hi m his g uilty pleas precluded him from seeking any relief from his co n v i ct ions or sentenc es, “c lear ly establish that due proc ess re quires” that the statute of limit ations be tolled in his case. The petitione r further argues that the post-c onviction court incorre c tl y

f o c u s e d o nw h e th e r

tr ia l c o u n s e l m is le d

h im in to b e li e v in g h e c o u ld

n o t f il e a p e ti ti on for post-c onviction relief r ather than whethe r he w as misled into such a belief by the t otality of the circ umstances, whic h included trial counsel’s continuing repr esentation dur ing and well beyond the one-y ear statute of limitations period that followed the en t ry of his g uilty

pleas. The petitioner maintains that he filed his post-conviction petit ion within a re asonable amount of time afte r lea rning th a t h e h a d n o t w a i v e d h i s r i g h t t o p o s t

- c o n v i c t i o n r e l i e f b y e n t e r i n g i n t o t h e p l e a a g r e e m e n t w ith the State.-10-

The State a

rg ues that, short of showing that counsel wilfully misrepre sented that he could not fi le a pe tit ion

fo r p os t- c on vic tio n r e lie f, the pe tit ion e r c ann ot d e mon str a te that du e pr oc e ss

c on sid e ratio ns re qu ir e that th e statut e of lim itatio ns be tol le d. Th e State fu rt he r a rgue s th a t, e ve n if the statut e wa s to lle d d

ue to t ri a l c ouns e l’ s f

a ilure to i nf

or m th e pe tit ion e r o f h is ri g ht to f ile a po stc on vic tio n p e tit ion , s uc h to lli ngdid no t e xten d to Ap ri l 13 , 2 00 5, the date the pe tit ion e r f ile d h is petition.

Tenne ssee Code Annotated section 40-30- 102(a) provides that a pe tition for post-conviction

re lie f m us t be fil e d “w ith in one (1 ) y e ar of the date of the fi na l ac tio n of t he hig he st s ta te a

pp e llate court to which a

n appea l is taken or, if no appe al is taken, within one (1) y ear of the date on which
t h e j u d gm en tb ec am e f

i n al [

. ] ” T h e s t at u t e c o n t ai n s a s p ec i fi c a n t i -t o l l i n g p ro v i s i o n , s t at i n g:

The statute of limit ations shall not be tol led for any rea son, including a

ny tolling or saving provision otherwise available at law or equity

. Time is of the esse nce of the rig ht to file a petition for post-c onviction relief or motion to re o p en established by this chapter, a

nd the one- y ear limit ations period is a n element of the rig ht to file the

a c tio n a nd is a c on dit ion

up on its e xer c ise. Ex c e pt a s sp e c if ic a lly pr ov ide d in subsections (b) a

nd (c) , the righ t t o file a pe tition for post-conviction relief or a motion to reope n under this c hapter shall be exti ng uished upon the expiration of the limit ations period.

I d. Subsection (b) of the statute sets forth three narrow ex ceptions under which an untimely petition may be conside red: (1) when the c laim is based upon a f inal ruling of an a

ppellate c ourt establishing a constit u t i o n al rig ht that was not rec og nized at the time of trial and whic h require s retrospe ctive application; (2) w hen the c laim is based upon new scientific evidence e stablishing that the pe titioner is i nn oc e nt; and

(3 ) wh en a prev iou s c on vic tio n th a t w a s n ot a g uil ty ple a and wh ic h w a s u se d to enhanc e the pe titioner’s sentenc e has be en held to be inva lid. I d. § 40-30-102( b).

Our supre me cour

t has rec og nized, however , that in some cases a strict application of the statute of limita t i o n s m ay d eprive a petitioner of “‘a rea sonable opportunity

to assert a

claim in a

me anin g fu l ti me and

mann e r. ’” Willi a ms v . St a te , 4 4 S. W.3 d 4 64 , 4 68 (T e nn . 2 00 1) (q uo tin g Se a ls v. State, 23 S.W .3d 272, 279 (Tenn. 2000) ). Thus, in Wi l l i am s , a m aj o ri ty of our supre me cour

t

co n cl u d edt h at d

u e p ro ce s s co n s i d er at i o n s m ay h av e t o l l edt h e l i m i t at i o n s p er i o d fo r f i l i n g a post- co n v i cti on petition when the petitioner’ s counsel misled the petitioner into believing that

c ou n s e l w a s c o n t i n u i n g t h e d i r e c t a p p e a l p r o c e s s o n h i s b e h a l f

. I d

. a t 4 7 1

. T h e pe tit ion e r i n Wil liams arg ued that the statute of l imitations should be tol led bec ause tria l counsel fa iled to notify him of his withdrawal fr om the cas e o r to expl ain to him his rights for f iling a pro se Rule 11 application for

permission to appea l to the s upreme court. I d. at 465. Our supreme court remande d the ca se to the post-convic tion court for a n evidentiar

y hear ing, c oncluding that the re cord ne eded further development to dete rmine the c ircumstance s surrounding the petitioner’s “ understandingof his re la tio ns hip ” wi th t

ri a l c ouns e l:-11- The question, then, is w hether the appellee in this case was, i n fa ct , m i sled to believe th at counsel was continuing the appea ls process, ther eby requiringthe tol li ng of th e li mi tatio ns pe ri od

. . . . . T he so le inq uir y he re

. . . is wh e the r t

his lim itat io ns pe ri od

is t oll e d b e c a

us e of du e pr oc e ss c on c e rn s su rr ound ingpo ssi ble

a tto rn e y mis re pr e se ntatio n. F ur the r d e ve lop me nt o f t

he re c or d is r equ ir e d to de te rm ine the pr e c ise c ir c ums tanc e s sur ro un din g the a

pp e lle e ’s un de rs tand ingof his

re la tio ns hip to c ouns e l.

I d. at 471. I n a footnote, the court c larified that it was “not holding that a petiti oner may be excused from filing an untimely

post-conviction petition as re s u l t o f counse l’s neg lige nce” but that the inq uir y , in ste a d, wa s “ on ly

up on tr ia l and a

pp e llate c ouns e l’ s a lle g e d mis re pr e se ntatio n in fa ili ngto proper ly withdraw f

rom repr esentation a

nd in f ailing to notify

the petitioner that no a

pplication for permission to appea l would be filed in this Court.” I d. at 468 n.7.

I n this case, the post-c onviction court made the following finding s of fact and c onclusions of law i n it s d e te rm inatio n th a t th e pe tit ion wa s ti me -b arr e d:

Although the petitioner c laims that [ trial counsel] informed him that he wa s ineligible to f

ile a petition for post-c onviction relief, it is hig hly d o ubtful that such

a mis re pr e se ntatio n wa s e ve r m a de . A t th e tim e of the ple a a g re e me nt, [tr ia l c ouns e l] had been practicing exclusively in the field of criminal law for over twe nty

y ear s. He is the au t h or of a

series of leg al books entitled Tenne ssee Criminal [P ]ractice a nd Procedur e, which ha s been in pub lication since 1984. While his understanding of criminal law and proce dure is unde niably exceptional, this fa ctor alon e d o es not

ne c e ssa ri ly me an th a t any

mis le a din g a dv ic e c ou ld not have be e n g ive n b y c ouns e l.

Ho we ve r, takin g int o c on sid e ra tio n a ll o f t

he c ir c ums tanc e s of

thi s c a se , it

is rathe r unlikely

that [t ri al counsel] would have a dvised the petitioner that he was unable to file a

petition for post-conviction re lief. Based on the testimony provided at the hea ring , in conjunction with all other re levant evide nce, it does not a ppear as though [tri al co u n sel] mi sled the petitioner to believe he wa s without further leg al

rec ourse f ollowing the entry of his guilty plea. Thus, due proce ss should not require that th e statut e of

lim itatio ns be tol le d a

nd the pe tit ion e r a llo we d to pr oc e e d w ithhis Petition which was untimely filed.

We respec tfully

disag ree that the petitioner wa s not misled by the circ umstances into a belief “that he was without further le g al re course following the entry of his g uilty

plea.” The guilty

plea

a g re e me nt s ta te s in

pe rt ine nt p art :

Counts 2, 4, 6, 7, and

8 a re to b e re tir e d o n th e fo llo wi ngc on dit ion s:-12-

(1) That within 120 day s [t he petitioner] wil l fi le with the Tenne ssee De pa rtme nt o f H e a ltha

pp ro pr ia te pa

pe rs a g re e ing to the re vo c a tio n o f h is Tenne ssee medic al license ; and

(2) That the guilty

pleas a s to Counts 1, 3, 5, and 9 shall not be sought by [t he petitioner] to be withdrawn or a ltered in a ny way ; and

(3) That no petition to m odify sentenc e pursua

nt to Rul e 35 (b) , Tenne ssee Rules of Criminal Procedure is filed by [t he petitioner]; and

(4) That no appe al or c halleng e to said convic tion or sentence is m aintained by [t he petitioner].

I t is un d i s p u t ed that this waiver of rig hts included no specif ic exemption st ating that the p et i t i o n er wa s n o t wa i v i n g h i s ri gh t t o p et i t i o nfo r p o s t -c o n v i ct i o nre l i ef

. At t h e e v i d en t i ary

h ea ri n g, the pe tit ion e r t e sti fi e d th a t tr ia l c ouns e l in fo rm e d h im he ha d w a ive d “ a ll h is r ig hts ” by e nte ri nghis g uilty pleas. H e s aid that counse l specifica lly told him t hat the g uilty

plea a g ree ment included a

wa ive r o f h is r ig ht t o atta c k th e ple a a g re e me nt o r t o a

pp e a l in any wa y and tha t he int e rp re te d th is to mean that “it wa s set in stone an d i t wa s d o n e an d [he] couldn’t appe al.” Ac cordingto the pe tit ion e r, tr ia l c ouns e l ne ve r m e nti on e d a ny thi ngto h im a

bo ut h is r ig ht t o f

ile a pe tit ion fo r p os tconviction re lief.

Neither the State nor post-c onviction counsel questioned tria l counsel with respe ct to what he may have told the petitioner conce rning the waive r of his rig ht to appeal or challeng e the convictions or whe ther he distinguished between a direc t appea l and a pe tition for post-conviction relief . Trial counse l’s only

testimony

on this subject conce rned the advice he gave the petitioner’s pare nts, long a fter the statute of limitations for filing a post-conviction petition ha d run, to the ef fec t that he could not and w ould not file such a post-conviction petition on the petitioner’s behalf . Trial counsel, howe ver, c orrobor ated the petitioner’s claim that he continued to repr esent the pe titioner in the civil case s associate d with the incidents, testify ing that he believe d that the civil suits were not settled until at least April 2003.

Moreove r, trial counse l’s memoranda , notes, and letters associate d with the case , which we re

a dmi tte d a s p art

of a c oll e c tiv e e xhibi t a t th e he ari ng , s ho w that he and the pe tit ion e r c on tin

ue d to enjoy regular, c ong enial corr espondenc e and contac t thr oug h at least the middle of 2003, inc luding

corr espondenc e re lating not just to the petitioner’s he lp in evaluati n g o th e r me d ic al malpra ctice c ases but also to the terms and c onditions of the petitioner’s ser vice of his sentence . I n sever al letters, tria l

c ouns e l r e sp on de d to the pe tit ion e r’s app are nt c omp la int s o r r e qu e sts re g ard ingthe status of his i n c ar c e r at i o n

. In o n e , d a t e d A p r i l 1 6
, 2 0 0 1
, t r i a l c o u n s e l a d v i s e d t h e p e t i t i o n e r

t h a th e “ c o u l d

a l w a ys raise he ll” about the conditions of the petitioner’s incar cer ation but that it would only serve to ge t him transfer

red to a prison near Memphis. I n another letter, dated September 26, 2002, trial counsel

a dv ise d th a t he ha d d isc us se d w iththe pe tit ion e r’ s mo ther t he pote nti a l c ivi l li tig a tio n a nd a lso

e xpla ine d to he r that the re wa s “ no pr a c tic a l wa y to g e t any oth e r re du c tio n in [ th e petitio ne r’ s]-13-

se nte nc e.” I n a lette r d a te d Se pte mbe r 1 5, 20 03 , tr ia l c ouns e l to ld t he pe tit ion e r t

hat V and e rb ilt Hospital had ref

used to pr ovide a law y er f or him in the civil suit, reminded him that their contrac t “spec ifically

excluded that civi l l i t i gat i o n ,” and a dvised that he ha d civil lawy ers in his firm who could handle the matter and that he, himself, w as “a s familiar with [the petitioner’s] case a s any one.” Finally , in a September

17, 2003, letter, trial counsel advised the petit ioner that the pe titioner’s fathe r had author ized him t o repr esent the pe titioner in the civil suit recently filed ag ainst him.

B a se d o n the se un iqu e c ir c ums tanc e s, we c on c lud e that du e pr oc e ss r e qu ir e s th a t th e statut e of limitations be tolled. Unlike the more c ommon scenar io where counsel’s r epre sentation comes to a close f

ollowing the e ntry

of a de fenda

nt’s g uilty

plea, tria l counsel not o n ly repr esente d the petitioner in the civil suits arising out of t he same criminal episodes but a lso continued to respond

an d co mmunicate with the petitioner a bout the terms and c onditions of his criminal sentence . As the petitioner points out, there is nothing in the rec ord to show t h at t ri al counsel e ver ma de any formal e ffor

t to withdraw fr om repre sent at i o n

. W e d o not think it was unre asonable in such a sit ua tio n f or the pe tit ion e r t o h a ve be lie ve d that tr ia l c ouns e l, wh om he tho ug ht wo uld c on tin ue to repr esent him throug hout the entire te rm of his sentenc e, would have informed him that he ha d not

wa ive d h is r ig ht t o p e tit ion fo r p os t- c on vic tio n rel ief

. Noth ingin t

he re c or d c on tr a dic ts h is
tes timony that trial counsel ne ver sa id any thing to him about his rig ht to file a post-convic tion petition or the statute of limit ations for doing so. The letter trial counsel sent to t h e p et i t ioner

e xpla ini ngthe ra

mif ic a tio ns and c on se qu e nc e s of his g uil ty ple a a g re e me nt i s si le nt o n th e su bje c t.

We ag ree with the petitioner that the key inquiry is whether, unde r the totality of the

c ir c ums tanc e s, the pe tit ion e r w a s mi sle d in to be lie vin g that his g uil ty ple a s in c lud e d a wa ive r o f h is rig ht to petition for post-conviction relief . See Willi ams, 44 S.W .3d at 471 (“The sole inquiry here

. . . is wh e the r t

his lim itatio ns pe ri od

is t oll e d b e c a

us e of du e pr oc e ss co nc e rn s su rr ound ingpo ssi ble attorney misrepre sentation.”). I n Stokes v. State, 146 S.W .3d 56 (Tenn. 2004) , our supre me cour t

su mma ri zed the ho ldi ngin Wi lli a ms a s f oll ow s:

I n Willi a ms, mis re pr e se ntatio n by de fe nd ant’ s c ouns e l le d to a fa ilure to f

ile an application for per

mission t o appeal t o this Court following the dec ision of the Court of Cr imi na l App e a ls o n d ire c t a pp e a l. T he de fe nd ant b e lie ve d th a t th e c a se ha d b e e n p e nd ingbe fo re thi s Co ur t, a nd by the tim e he fi le d a

pe tit ion f

or po stconviction re lief, his petition was dismi s s ed as t i me-ba rre d. We held that if the defe ndant was under the impre ssion that a Rule 11 application wa s pending , he wa s eff ectively prec luded from filing a timely petition for post-c onviction relief, a nd that the attorne y ’s misrepre sentation and f ail ure to withdra

w as c ounsel war

rante d a tolling of the statute of

limit ations.

I d

. a t 6 1

. I n Samp le v

. St a te , 8 2 S. W. 3 d 2 6 7
, 2 7 3

- 7 4 ( T e n n

. 2 0 0 2 )
, o u r s u p r e me c o u rt s tate d : “ [W] e have c onsistently

said that the principles of due proc ess ar e fle x ible and req u i re balanc ing of a petitioner’s liberty

interests ag ainst the State’s finality interests on a c ase by

case basis.” Her e, the petitioner wa s misled by

the all-inclusive languag e of the waiver in his guilty

plea a g ree ment, by counsel’s ex planation t hat he was waiving “all his rig hts” by signingthe ag ree ment, and by counsel’s-14-

continuing r epre sentation into believing that he had no r ight to file a petition for post-conviction relief

. He was, thus, de prived of a rea sonable opportunity to a ssert his c laims of i n eff ective assistance of counse l in a meaning ful time and manne r. See Williams, 44 S .W.3d at 468.

We f ur the r ag re e wi th the pe tit ion e r that the nin e -m on th de lay be tw e e n the tim e that he fi rs t lear n ed o f h is right to file a post-conviction petition and the filing of the pe tition was not

un re a so na

ble

. Se e Sa mpl e , 82 S.W.3 d at 276 (c on c lud ing that sixtee n- mon th d e lay be tw e e n ti me petitioner lea

rned of exculpatory

evidenc e wi t h h el d by

the State and f

iling of his petition was not

un re a so na

ble un de r t

he c ir c ums tan ces of

the c a se ); Willi a ms, 44 S.W. 3d a t 47 1 ( de c lin ingto

“ arb itr ari ly

de te rm ine wh a t le ng th of tim e c on sti tut e s ‘ e no ug h ti me ’ f or a de fe nd ant t o p ur su e po stc on vic tio n a

pp e llate re vie w” ). We c on c lud e that, u nd e r t he un iqu e c ir c ums tanc e s p re se nte d b y thi s

case , due proc ess consider ations require that the statute of limitations be tolled

II. Claim s of I neff

ect ive Assistance of Counsel

The pe titioner next contends that the post-conviction court er red in findingthat he did not meet his burden of

show i n g that he wa s denied the e ffe ctive assistanc e of tria l counsel. The post-convictio n p et i t i o ner be ars the bur den of pr oving his a lleg ations by clea r and c onvincing evidenc e. See T enn. Code Ann. § 40-30-110( f) (2006). When an evidentiar y hear ing is he ld in the post-conviction setting , the finding s of fa ct made by the cour t a re conclusive on appea l unless the evidenc e pre ponderates ag ainst t h em

. See Tidwe ll v. St ate, 922 S.W.2d 497, 500 (Tenn. 1996). Where a ppellate r eview involves purely fac tual issues, the appe llate cour t should not reweig h or

ree valuate the evidenc e. See Henley v. State, 960 S.W .2d 572, 578 (Tenn. 1997) . Howeve r, re view of a tr ia l c ourt ’s a

pp lic a tio n o f t

he law t o th e fa c ts o f t

he c a se is d

e novo , wi t h n o p resumption of

corr ectne ss. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998).

The issue of ine ffe ctive assistanc e of c ounsel
, wh i ch prese nts mix ed questions of fa ct and law, is revie wed de novo , with a pre sumption of corre ctness g iven only to the post-conviction cour t’s finding s of fac t. Fields v. State, 40 S.W .3d 450, 458 (Tenn. 2001) ; Burns v. State, 6 S.W.3d 453, 461 (Tenn. 1999)

. T o est ablish a cla im of ineffe ctive assistanc e of c ounsel, the petitioner ha s the burde nto s h o w b o th

th a t t r ia l c o u n s e l’ s p e r f

o r ma n c e w a s d e f

ic ie n t a n d th a t c o u n s e l’ s defic ient perf ormanc e pre

judiced the outcome of the proc eeding . Strickland v

. Washington, 466 U.S. 668, 68 7, 10 4 S. Ct. 20 52 , 2 06 4 ( 19 84 ); se e State v. Ta y lor , 968 S .W .2 d 9 00 , 9 05 (T e nn . Cr im. Ap p. 19 97 ) ( no tin g that same s tand ard fo r d e te rm ini ngine ff

e c tiv e a ssi sta

nc e of c ouns e l th a t is applied in fe deral case s also applies in Tenne ssee c ases) . The Strickland standa rd is a two-pr ong te st:

F ir st, the de fe nd ant m us t sh owthat c ouns e l’ s perfo rm a nc e wa s d e fi c ie nt. Th is require s showing that counsel made err ors so serious that counse l was not fu nc tio nin g a s th e “ c ouns e l” g ua ra nte e d th e de fe nd ant b y

the Sixth A me ndme nt. Seco n d, the def

endant must show that the def icient per formanc e pre

judiced the defe nse. This requir es showing that counsel’s error s wer e so ser ious as to deprive the defe ndant of a

fair tr ial, a trial whose result is reliable.-15-

466 U.S. at 687, 104 S. Ct . at 2064.

The de ficient pe rfor

mance prong of the test is satisfied by showing that “co u n s el ’s acts or omissions wer e so ser ious as to fall below an objective standard of rea sonablene ss under pre vailing pr of e ssi on a l nor

ms. ” Go a d v. Stat e , 938 S.W. 2d 36 3, 36 9 (T e nn . 199 6) (c iti ngStr ic kla nd , 4 66 U. S. at 688, 104 S. Ct. at 2065; B axter v. Rose, 523 S.W .2d 930, 936 (Tenn. 1975)). The pre judice prong of t he test is satisfied by showing a re asonable probability
, i.e. , a “pr obability sufficie nt to undermine confide nce in the outc ome,” that “ but for counse l’s unprofe ssi o n a l e r r o r s, the result of the pr ocee ding woul d h a v e b e e n d if

f e r e n t. ” Str ic k la

n d
, 4 6 6 U

. S. a t 6 9 4
, 1 0 4 S. Ct

. a t 2 0 6 8

. I n the context of a g uil ty ple a , th e pe tit ion e r m

us t sh ow a re a so na

ble pr ob a bil ity that we re it no t fo r t he de fi c ie nc ie s in counsel’s r epre sentation, he would not have p l ed g uilty but would instead have insisted on proce eding to trial. Hill v. L ockar t, 474 U.S. 52, 59, 106 S. Ct . 366, 370 (1985); House v. State, 44 S.W .3d 508, 516 (Tenn. 2001)

.

Be cause both prong s of the test must be satisfied, a failu re to show e ither def icient perf ormanc e or r esulting pr ejudice r esults in a failure to e stablish the claim. See Henley
, 960 S.W .2d at 580. For

this reason, c ourts need not a pproa ch t h e S t ri ck l and test i n a spec ific orde r or e ven “addr ess both components of the inquiry if the def endant make s an insuff

i ci en t s howing on one.” 466 U.S. at 697, 104 S. Ct. at 2069; see also Goad, 938 S.W .2d at 370 (stating that “fa ilure to prove either deficienc y or prejudice provides a sufficient basis to deny relief on the ineff

ective a ssistance claim”)

.

Th e pe tit ion e r f

ir st a rgue s th a t tr ia l cou

ns e l wa s ine ff

e c tiv e fo r fa ili ng to pr op e rl y a dv ise him of the maximum possible sentence he would rec eive if convicted of a ll counts of the indictment at trial. He a sserts that tri al co u n sel’s pre diction of a possible 108-y ear sentenc e wa s err oneous and

unrea listi c and that it influence d him into acc epting the plea ag ree ment. The post-conviction cour t

ma de the fo llo wi ngfi nd ing s and c on c lus ion s w ithre sp e c t to thi s c la im:

The pe titioner asserts that [trial counsel] told him he was fac ing a possible max imum

se nte nc e of

10 8 y e ars . [T ri a l c ouns e l] state d th a t he wo uld alw ay s tel l his c lie nts wh a t th e ma ximumthe or e tic a l se nte nc e c ou ld be , alo ng wi th wh a t he tho ug ht wa s a more proba

ble re sult if c onvicted. He testified that he told the petitioner if he wer e convicted of

the offe nses, h e wa s more likely to rec eive a

n eff ective se ntence of somewher e betwe en thirty and fifty y ear s.

When there e x ists som e con fl i ct in testimony , the cr edibility and we ight of witnesses’ testimony

is to be resolved by

the post-conviction cour

t. Blac k v. State, 79 4 S. W.2 d 7 52 , 7 55 (T e nn . Cr im. App

. 19 90 ). Con sid e ri ngthe pr of e ssi on a lis m,

e xp e r i e n c e an d l e g a l kn o w l e d g e o f [t r i a l c o u n s e l ], t h e C o u rt t e n d s t o f a v o r h is testimony over that of the petitioner. F urthermor e, this sort of educ ated guesswork is o f t e nd o n e b y

d e f e n s e a t t o r n e y s i nr e n d e r i n g p r o f

e s s i o n a l o p i n i o n s o f

p o s s ibl e outcomes of c riminal case s. This issue is without merit.-16-

We conclude that the record supports these findings and conclusions of the post-conviction

cour t

. T ri al counsel e x plained that he a lway s informed his clients of the the oretica l max imum

se nte nc e bu t a lso g a ve the m hi s b e st p ro fe ssi on a l op ini on a s to the mos t pr ob a

ble se nte nc e . In th is

case , he specific ally told the petitioner, and put in writing , his belief that the most probable sentenc e the pe tit ion e r w ou ld r e c e ive if c on vic te d at tri a l wou ld be on e in the ra ng e of thi rt

y to fo rt y y e a rs , wh ic h w ou ld m e an th a t he wo uld sp e nd the re st o f h is e ff

e c tiv e lif e in pr iso n. Th is i nf

or ma tio n is ref lected in the le ng thy

J anuar y 5, 1999, letter trial c ounsel sent to the petitioner
, ex p l ai n i n g the

ra mif ic a tio ns of

the pr op os e d guil ty

ple a a g re e me nt:

Yo u a nd Ihave dis c ussed th is on nu me ro us oc c a sio ns . I

fe e l th a t I

c ou ld

succe ssfully

defe nd the rape char g e, g iven the we akness of that alleg ation and y our str on g de nia l th a t it

e ve r o c c ur

re d. I t is c on c e iva

ble that w e c ou ld de fe a t th e e arl ie st alleg ation. Thus, there is a possibili ty of an a cquittal i n as many as two of the vic tim s. Ho wev er, I do no t be lie ve , in my be st p ro fe ssi on a l op ini on , th a t I c ou ld

su c c e ssf ull y de fe nd a ll f our c a se s.

Given the stre ng th of the evidenc e ag ainst y ou, Ifee l that a conviction on at least two counts or more is significa nt. This could result in sentence s at least as g reat as y ou are acc epting in this pl ea a g ree ment with a sig nificant proba bility of sentenc es as hig h as 30 or 40 y ear s. For a varie ty of re asons, I

b el i ev e t h at an y

convictions ag ai n s t y ou in a jury

trial would run conse cutively and could r esult in y our confine ment for the r est of y our mea ningf ul life.

Duri ngc ro ss- e xami natio n, tr ia l c ouns e l te sti fi e d that his pr of e ssi on a l op ini on

of the “ wo rs t

case probable scena

rio,” of w hich he infor

med the petitioner, w as that the pe titioner wo uld be convicted of

four c ounts of ag g ravated sexual battery and that the trial judge would run ea ch sente nce b a s e d o n a d if

f e r e n t v ic ti m c o n s e c u ti v e ly
, f o r a to ta l o f a

p p r o xim a te ly f

o rty

- e ig h t y e ars. The petitioner cites this testimony to argue that the post-conviction cour t “should have f

ound that trial counsel a dvised [the petitioner] t hat [he] would receive an ef fec tive sentenc e of 48 to 50 y ear s or more.” This v i ew , h o we ver, ig nores tria l counsel’s dire ct examination testim ony , as we ll as the information he c onvey ed to the petitioner b y l et t er , rec ited above, a bout having informed the petitioner of the “ most probable” se ntence he would re ceive and why

.

I n the context of this claim, the petitioner also ar g ues that trial counsel was def icient for failing to r ecog nize a

nd advise the petitioner “of the ef fec t of the multipli citous indictment returne d ag ains t h im
, ” an d

f o r a s s u mi n g th a t t

h e p e ti ti o n e r

w o u ld r e c e iv e e n h an c e d

an d c o n s e c utive
sent e n c in g

. T r ia l c o u n s e l, h o w e v e r , ma d e it c le ar th a t h e th o u g h t i t v e r

y u n li k e ly
, a s h e in f

o r me d the petitioner, that the pe titioner would be convic ted on eve ry one of the co unts contained in the indictment. I n his letter to the petitioner, trial c ounsel offe red sound r ationales for his belief that the petitioner’s status as a phy sician, as we ll as the enha nced vulne rability

of the victims beca

use they

wer e suff

eringfrom seve re phy sical d i s abil ities, would result in the application of se vera l enhanc ement fa ctors to the petitioner’ s sentence

. The petiti oner has failed to show that trial counse l was de ficient in his repr esentation in thi s respe ct o r t hat he would not have pled g uilty had it not-17-

been f or counse l’s alleg ed misinformation. Acc ording ly , we c onclude that the pe titioner is not entitled to relief on the basis of this claim.

Th e pe tit ion e r n e xt ar g ue s th a t tr ia l c ouns e l w a s ine ff e c tiv e fo r f

a ili ngto p ro pe rl y

inv e sti g a te the alleg ations contained in the indictment. Specifica lly , he ar g ues that trial counse l was def icient fo r n ot h a vin g him

un de rg o a

n in de pe nd e nt p sy c hiatr ic e va luatio n a nd that he wa s pre

jud ic e d a s a

re su lt be c a

us e he wo uld

no t ha ve e nte re d in to t

he ple a a g re e me nt h a d h e kn ow n a bo ut t he po ssi ble defe nses and mitigating c ircumstance s associate d with his diagnosis of voy eurism.

I n d e nyingre lie f o n th e ba sis of thi s c la im, the po st- c on vic tio n s ta te d, in p e rt ine nt p a rt :
The psy chiatric evaluations conducted both bef ore a n d a f te r c o nv ic ti o n, along with the petit i oner’ s statements, reve aled that he was suff eringfrom a c ondition involving sexual devianc e. Dr

. Be rlin even stated in the evidentiar y hear ing on the Pe tit ion fo r Pos t- Con vic tio n Re lie f that a pe rs on su ff e ri ng fr om voy eur ism “experienc es i ntense recur rent erotically arousing , that’s sexually arousingfanta sies and urg es about looking at an unsuspec ting, naked strang er.”

. . . Testimony proving the exist ence of such a disorder within the petit ioner which spurs sexual fanta sy and

arousa l, in conjunction with the fac ts of the case , lead the Court to be lieve that a jur y could have rea sonably

construed the touching b y the petitioner a s being for the purpose of

sexual arousal or g ratification.

Fur thermore
, [t rial counsel] te stified that his ma in conce rns wer e whe ther the petitioner wa s competent to stand trial in the matter and whe ther ther e exis ted any defe nses in that respe ct. The psychiatric evaluation condu ct ed by Dr. R[a]gan

c on c lud e d th a t th e pe tit ion e r w a s c omp e te nt, bu t th e re wa s so me me nta l il lne ss involving sexual devianc e. Howe ver, [trial co unsel] opined that there wa s an insufficient founda

tion upon which a mental he al t h defe nse could be based. Fur thermore , he stated that such a de fense would be quite dang erous, a s they can be “fr aug ht with disaster.” Due to the fac t that the petitioner h ad made an inculpator y statement, couple d with the acc usations made by the v i ct i m s, [t rial counse l] found the ca se to be diff

icult to defend.

I t is not t he Court’s function to “ ‘sec ond g uess’ tac tical and strateg ic choice s perta ining to def

ense me asure s or to measure a def ense attorney ’s re prese ntation by ‘20-20 hindsig ht.’” He nley v. State, 9 6 0 S.W .2d 572, 579 (Tenn. 1997) (quoting Hellar d v. State, 629 S.W .2d 4, 9 (Tenn. 1982)). Ba sed on [t rial counse l’s] t estimony and his profe ssional assessment of the da mag ing e vidence ag ainst the petitioner, the Court is o f t he op ini on that his le g a l r e pr e se ntatio n in thi s r e g ard

wa s a de qu a te . T his issue is without m erit.

The re cord f

ully supports the findi ng s and conclusions of t he post-convic tion court. When revie wing a cla im of ineffe ctive assistanc e of counsel, we are mindful that we must indulge a strong-18-

presumption that counsel’s c onduct fe ll within t he ra ng e of reasona

ble professional assistance , see Str ic kla nd , 4 66 U. S. a t 69 0, 10 4 S. Ct. a t 20 66
, a nd may no t se c on d- g ue ss the ta c tic a l and str a te g ic choice s made by

counsel unless those choice s were uninformed be cause of inade quate pr epar ation. Se e He lla rd , 6 29 S.W. 2d

a t 9. Tr ia l c ouns e l, a

n e xpe ri e nc e d an d ve ry c omp e te nt c ri min a l de fe ns e attorney , testified that he did not pursue a psy chiatric defe nse beca use, in his prof

essional opinion, the inf or ma tio n unc ov e re d b y

Dr . Ra g an hur

t r a the r t ha n h e lpe d th e pe tit ion e r’ s cas e. He f ull y explained his rea soning, testify ing that the things D r. Rag an told him about the petitioner supported the State’s case

. Dr. Ra g an in fo rm e d h im, fo r e xamp le , th a t th e pe tit ion e r e ng a g e d in hig h r isk activities to stimul ate himself, wa s s ex ually fasc inated with the bodies of young g irls, and had marri e d anA s ia nw o ma nb e c a u s e s h e lo o k e d

li k e a y o u n g g ir l. D r

. Ra g ann e v e r d is tinguished bet wee n th e pe tit ion e r’ s in te re st i n lo ok inga s o pp os e d to tou c hin g , a nd the pe tit ion e r a dmi tte d to trial counsel that he had per formed me dical examinations on the victims.

Ev e n if the pe tit ion e r h a d b e e n d ia g no se d wi th vo y e ur ism in 19 99
, we fa il t o s e e that it wo uld have been h el p fu l t o his defense . For the purposes of

this case, the of

fense of ag g ravated sexual b a t t e r y i s “ u n l aw f

u l s e xu a l c o n t a c t w i t h a v i c t i m b y t h e d e f e n d an t o r t h e d e f

e n d an t b y a

vic tim ” when “[t ]he victim is less than thirteen (13) y ear s of ag e.” T enn. Code Ann. § 39- 13-504(a )(4) (1997 & 2006)

. “‘Sexual contac t’ includes the intentional touchingof the victim’s . . . intimate parts, or the int e nti on a l to uc hin g of the c lot hin g c ov e ri ngthe i mm edi ate are a of the vic tim ’s

. . . in tim a te parts, if t h at i n t en tional touching c an be r easona bly construed a s being for the pur pose of se x ual

aro us a l or g ratif ic a tio n. ” I d. § 3 9- 13 -5 01 (6 ). As the po st- c on vic tio n c ourt no te d in it s order , th is court ha s previously

reje cted similar ar g uments from other de fenda nts based on the f

act that the statute requir es only

intentional touching that can be rea sonably construed as being for the pur poses

o f s e xu a l g r a ti f

ic a ti o n

. Se e St a te v

. We s le y E ar l B r o w n , N o

. M 2 0 0 3

- 0 2 8 0 4

- CC A

- R3

- CD
, 2 0 0 5 WL 14 12 08 8, a t *6 (T e nn . Cr im. Ap p. June 16 , 200 5) , pe rm . to app e a l den ie d ( Te nn . D e c . 5 , 2 00 5) ; State v. Roy Chisenhall, No. M2003-00956-CCA-R3-CD, 2004 WL 1217118, at *3 (Te nn. Crim. App. June 3, 20 04 ). Th e pe tit ion e r’ s st a te me nt t o p oli c e , in wh ic h h e a dmi tte d th a t he wa s sex ua lly

a ttr a c te d to a do le sc e nt g ir ls a nd ha d g ive n e xami natio ns to t he vic tim s, wh o we re no t hi s p a tie nts , wo uld be mor e tha

n e no ug h f

or a jur y to re a so na

bly c on c lud e that the pe tit ion e r t ou c he d th e vic tim s for the pur

pose of se x ual ar ousal or g ratification.

The p et i t i o ner a dditionally argues that trial counse l was def icient, there by

depriving the petitioner of the ability to enter know ing a nd voluntary

g uilty pleas, by the fa ct trial counse l did not

re ta i n an i n v e s t i g a t o r , i n t e r v i e w e y e w i t n e s s e s , h a v e an e xp e rt a n a l y z e t h e v i d e o t a

p e p u r p o rt ing to show the petit ioner on the vi ctims’ hospital floor, or procur e school, medical, leg al or other rec ords of the pe titioner, v i ct i m s , or other w itnesses in the ca se. Tria l counsel, howe ver, te stified that he

rec eived a dequa t e d i s cover y from the a ssistant dist rict attorne y , including inf ormation about the victims, and that h e i n v es t i gated the c ase to the be st of his ability by revie wing the evidenc e and holding c onversatio ns with the petitioner, the assistant district attorney , and the pe titioner’s ps y c hiatr ist . T he pe tit ion e r h a s n ot m e t hi s b ur de n o f s ho wi ngthat tr ia l c ouns e l w a s de fi c ie nt in h is inv e sti g a tio n o r t

hat he wo uld no t hav e ple d g uil ty we re it not fo r co un se l’ s all e g e d d e fi c ie nc ie s in thi s re g a rd

. W e c o n c l u d e , t h e r e f o r e , t h a tt h e p e t i t i o n e r

i s n o te n t i t l e d

t o r e l i e f o nt h e b a s i s o f

thi s

c la im.-19-

Th e pe tit ion e r n e xt ar g ue s th a t tr ia l c ouns e l wa s ine ff e c tiv e fo r fa ili ng to p ro pe rl y a dv ise him about the impact of

the unava ilability

of two of the vic tims. He notes that two of the victims are now de c e a se d, on e havin g die d o n Jan ua ry 26 , 2 00 0, and the oth e r o n Se pte mbe r 1 9, 20 00 , a nd a sse rt s th at, g ive n th e se ri ou s h e a lthc on dit ion s o f a ll f our v ic tim s, “ [i]t is lik e ly that no ne of

the vic tim s

c ould h a ve te sti fi e d at tr ia l.” He c on te nd s th a t ha d tr ia l c ouns e l in fo rm e d h im that th e vic tim s’ stat em ents to police could not be use d ag ainst him if they wer e unava ilable to testify at trial, he would no t have r

ushed to enter

the plea a g ree ment but instead would have insisted on procee ding
to t ri a l.

Th e po st- c on vic tio n c ou rt ma de the fo llo wi ngfi nd ing s and c on c lus ion s w ithre sp e c t to thi s

c la im:

Fr om the proof a dduced in this ca se, it is appare nt that all of the victims wer e alive prior to the pet i t i o n er’s conviction. As pre viously mentioned, [the assistant dis tr ic t a tto rn e y ] ha d v oic e d h e r c on c e rn fo r t ry ingthe ma tte r as so on a s p os sib le so that all of the victims would be ava ilable, either for testi fy i n g i n person at trial or being deposed pr ior there to. The petitioner’ s assertion in this particula r facet of the

case is rathe r speculative and unfounded. Be cause the petit ioner has failed to prove such alleg ation by

clea r and c onvincing evidenc e, this issue is without m erit.

The re cord supports the finding s and conc lusions of the post-conviction court. Tr ial counsel
te sti fi e d th a t th e pr os e c uto r w a s v e ry c on sc iou s of the pr e c ari ou s hea lth of a t lea st one of the vic tim s

and e xpre sse d h e r i nte nti on

of e ith e r takin g the vic tim s’ de po sit ion s or e xpe dit ing the c a se to t ri a l. There is nothing in the re cord to show that e ither could not ha ve occ urre d. The pe titioner has not met his burden of showing that counsel was defic ient in this respe ct or that he w ould not have pled g uilty wer e it not for counse l’s alleg ed def iciency in failingto inform h i m o f t h e i m p act of the potential unavailabil i t y o f the victims at trial. We conc lude, there fore , that the petitioner is not entitled to relief on the basis of this claim.

The pe titioner next argues that trial counsel was deficient for failing to advise him of the tria l

c ourt ’s ina

bil ity un de r B lake ly v. Was hin g ton , 54 2 U. S. 29 6, 12 4 S. Ct. 25 31 (2 00 4) , to e nh anc e his
sentenc es base d on fac tors not admitted by the petitioner or f

ound by the jury . The post-c onviction
court re jected this cla im, noting, amongother thing s, that Blakely was not rele ased until 2004, over five y ear s afte r t he entry

of the pe titioner’s g uilty

pleas. We ag ree that the petitioner ha s not shown that trial counsel wa s defic i en t for f ailing to a

nticipate the holding in Blake ly . We conclude, there fore , that the petitioner is not entitled to relief on the basis of this claim.

L astly , the petitioner a

rg ues that the c umulative eff ect of trial counsel’ s alleg ed def iciencie s in repre sentation war

rants that he be aff

orded post-c onviction relief. We r espec tfully disag ree

.-20- CO NC LU SION

We conclude that due proc ess conce rns require that the statute of limitations be tolled under the unique circ umstances prese nted by this case. We fur

ther c onclude that the pe titioner has not met his burden of showingthat he re ceive d i n ef fe ctive assistanc e of tria l counsel. Ac cording ly , we aff irm the denial of his pe tition for post-conviction relief

.

___________________________________ AL AN E. GL ENN, JUDGE