IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 25, 2005

JAMES SPURLING v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for McMinn County

No. 04-283 Carroll L. Ross, Judge

No. E2005-00004-CCA-R3-PC - Filed November 30, 2005 

The petitioner, James T. Spurling, appeals the post-conviction court’s summary dismissal of his pro

se petition as untimely. Because the petitioner’s claims, when taken as true, allege attorney

misrepresentation concerning the filing of a post-conviction petition, we conclude that an evidentiary

hearing is necessary to determine: (1) whether due process tolled the limitations period because

counsel did, in fact, assure the petitioner that he would continue his representation through the filing

of a post-conviction petition; and if so, (2) whether the petitioner was within the reasonable

opportunity afforded him by due process. Therefore, we reverse the post-conviction court’s

dismissal of the petition and remand the matter for an evidentiary hearing. 

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

Remanded

JOHN EVERETT WILLIAMS, J., delivered the opinion of the court, in which DAVID G. HAYES and

NORMA MCGEE OGLE, JJ., joined.

D. Mitchell Bryant, Cleveland, Tennessee (on appeal); and James Spurling, Pro Se (at trial), for the

appellant, James Spurling. 

Paul G. Summers, Attorney General and Reporter; Blind Akrawi, Assistant Attorney General; and

Jerry N. Estes, District Attorney General, for the appellee, State of Tennessee. 

OPINION

Facts and Procedural History

The petitioner was convicted by a jury of the offenses of attempted first degree murder and

assault with a deadly weapon. The trial court merged the assault conviction into the attempted

murder conviction and sentenced the defendant to twenty-three years. A panel of this court affirmed

the judgment on direct appeal, and the supreme court denied the petitioner’s Rule 11 application for

permission to appeal on March 17, 2003. See State v. James Spurling, No. E2001-00601-CCA-R3-
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CD, 2002 Tenn. Crim. App. LEXIS 962 (Tenn. Crim. App., at Knoxville, Nov. 7, 2002) app. denied

(Tenn. Mar. 17, 2003).

On August 9, 2004, the petitionerfiled a pro se petition for post-conviction relief contending,

inter alia, that the post-conviction statute of limitationsshould toll because trial counsel failed to file

his post-conviction petition as she assured him she would and because the clerk’s office either failed

to receive or to properly file a prior pro se petition mailed by the petitioner. Specifically, the petition

alleged the following:

The Petitioner also was told by his “then” attorney that she would take care of his

post-conviction. After he never heard anything he began inquiring into the status of

his P.C. Petition, which were never answered by anyone. The Petitioner got

assistance from another imate [sic] who prepared a Petition for him and the Petitioner

mailed it to the Court in McMinn County. The Petitioner’s family contacted the

Court and found that, according to them, that nothing had been received by them. All

of which has denied the Petitioner access to the Courts and his right to Petition for

post-conviction relief as outlined in TCA 40-30-201 et seq..

On August 23, 2004, the post-conviction court appointed counsel and ordered an amended petition,

if necessary, to be filed within thirty days. On October 6, 2004, the State filed a motion to dismiss,

based upon the petitioner’s untimely filing. The post-conviction court summarily granted the motion

and dismissed the petition on November 29, 2004. The petitioner now appeals to this court,

contending that the post-conviction statute of limitations should be tolled due to counsel’s failure

to timely file the post-conviction petition and the failure of the clerk’s office to file his previous pro

se petition. The State avers that the petitioner failed to demonstrate any reason why the statute of

limitations should be tolled and further contends that the petitioner presents no evidence to support

his claims. 

Analysis

A petition for post-conviction relief must be filed within one year of the final action of the

highest state appellate court to which an appeal is taken or, if no appeal is taken, within one year of

the date on which the judgment became final or consideration of the petition is barred. Tenn. Code

Ann. § 40-30-102(a). Time is ofthe essence in claiming post-conviction relief, and compliance with

the one-year statute is an element of the right to file a petition. Id. The statute itself provides three

exceptions to the one-year statute of limitations: (1) when a new constitutional right has been

recognized; (2) when the petitioner’s innocence has been established by new scientific evidence; or

(3) when a previous conviction that enhanced the petitioner’s sentence has been held invalid. Id.

§ 40-30-102(b). The petitioner concedes in his brief that none of these exceptions are applicable in

the present case. 

Rather, the petitioner argues that the statute of limitations should be tolled by due process

considerations pursuant to State v. Williams, 44 S.W.3d 464 (Tenn. 2001). That case involved an

untimely pro se petition for post-conviction relief filed following counsel’s failure to properly

withdraw from representation upon the conclusion of a direct appeal. Specifically, the petitioner in
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Williams alleged that he was unaware of the finality of his conviction as a result of the attorney’s

actions. As a result, the supreme court remanded for an evidentiary hearing on the issue of due

process tolling, specifically noting that “[i]f a defendant erroneously believes that counsel is

continuing to represent him or her, then the defendant is essentially precluded from pursuing certain

remedies independently. For example, it is well-established that defendants are generally restricted

from representing themselves while simultaneously being represented by counsel.” Id. at 469. The

supreme court further noted that its holding was confined to misrepresentations by counsel and did

not excuse an untimely filing attributable to counsel’s negligence. See id. at 468 n.7. 

 

To rule based upon the pleadings, the post-conviction court was obligated to accept the

allegations in the petition as true. Tenn. Code Ann. § 40-30-106(f). In the present case, the

petitioner contends that: (1) he relied on trial counsel’s assurances that she would file a postconviction petition; and (2) a prior pro se petition was either not received or not properly filed by the

trial court clerk’s office. Therefore, the petitioner effectively alleges that counsel misled him into

believing that she would be representing him through the filing of a post-conviction petition. 

Because of the nature of the first claim in particular, we conclude that an evidentiary hearing

is necessary to more fully develop the record in order to determine (1) whether due process tolled

the limitations period so as to grant the petitioner a reasonable opportunity to present his claim in

a meaningful time and manner and, if so, (2) whether the petitioner’s pro se petition was within the

reasonable opportunity afforded to him by due process. See Williams, 44 S.W.3d at 471. 

Conclusion

We reverse the post-conviction court’s summary dismissal of the petition and remand the

matter for an evidentiary hearing. 

___________________________________ 

 JOHN EVERETT WILLIAMS, JUDGE