IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs September 7, 2016

KENNETH SHERRON v. STATE OF TENNESSEE

Appeal from the Circuit Court for Madison County

No. C-15-347 Roy B. Morgan, Jr., Judge

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No. W2016-00515-CCA-R3-PC - Filed October 6, 2016

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The Petitioner, Kenneth Sherron, pleaded guilty to facilitation of kidnapping. Thereafter, 

the Petitioner filed an untimely petition for post-conviction relief, and the post-conviction 

court summarily dismissed the petition as time-barred. The Petitioner appeals, asserting 

that the post-conviction court erred when it summarily dismissed the petition. After 

review, we affirm the post-conviction court’s judgment. 

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

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which NORMA MCGEE 

OGLE and D. KELLY THOMAS, JR., JJ., joined.

Joseph T. Howell, Jackson, Tennessee, for the appellant, Kenneth Sherron.

Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Assistant Attorney 

General; Jerry Woodall, District Attorney General; and Al Earls, Assistant District 

Attorney General, for the appellee, State of Tennessee.

OPINION

I. Background

On September 27, 2012, the Petitioner entered a best interest plea to facilitation of 

kidnapping and received a sentence of five years. On December 14, 2015, the Petitioner, 

pro se, filed a petition seeking post-conviction relief. The Petitioner claimed that his plea 

was unknowing and involuntary. Appointed counsel filed an amendment to the original 

petition on December 30, 2015, asserting that trial counsel had been ineffective and that 

the Petitioner’s guilty plea was unknowing and involuntary. In response, the State filed a 

motion requesting to dismiss the petition as time-barred.
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On March 10, 2016, the post-conviction court filed an order dismissing the 

petition with the following findings:

The [P]etition[er] entered guilty pleas on September 27, 2012 with no 

appeal being taken and the present petition was not filed until December 

14th, 2015. The issues raised by the [P]etitioner are not later arising as the 

petition clearly states that he advised his trial attorney of the matters but 

then pled guilty on the date the matter was set for trial. There is nothing in 

the petition that gives any justification for not raising the matters at a timely 

manner either pretrial or at the guilty plea hearing even though they were 

known to the [P]etitioner prior to the plea date. Line 11 of the petition 

clearly states that the [P]etitioner should offer some reason as to why the 

petition is not time barred if filed beyond the one year date. This line is left 

blank. At the hearing on the petition the [P]etitioner offered no evidence as 

to justify any tolling of the statute of limitations and none of the reasons for 

tolling the statute are applicable in this matter.

It is from this judgment that the Petitioner appeals.

II. Analysis

On appeal, the Petitioner asserts that he is entitled to equitable tolling of the postconviction statute of limitations because his attorney failed to notify him of postconviction procedures. The State responds that the Petitioner has failed to show that he is 

entitled to due process tolling of the statute of limitations. We agree with the State. 

A person in custody under a sentence of a court of this state must petition for postconviction relief within one 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 year of the 

date on which the judgment becomes final. T.C.A. § 40-30-102(a) (2014). The statute 

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

any tolling or saving provision otherwise available at law or equity.” Id. It further 

stresses that “[t]ime 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.” Id. In 

the event that a petitioner files a petition for post-conviction relief outside the one-year 

statute of limitations, the post-conviction court is required to summarily dismiss the 

petition. T.C.A. § 40-30-106(b) (2012).

Tennessee Code Annotated section 40-30-102(b) sets out three exceptions to the 

statute of limitations for petitions for post-conviction relief:
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No court shall have jurisdiction to consider a petition filed after the expiration 

of the limitations period unless:

(1) The claim in the petition is based upon a final ruling of an 

appellate court establishing a constitutional right that was not recognized as 

existing at the time of trial, if retrospective application of that right is 

required. The petition must be filed within one (1) year of the ruling of the 

highest state appellate court or the United States supreme court establishing 

a constitutional right that was not recognized as existing at the time of trial;

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

establishing that the petitioner is actually innocent of the offense or 

offenses for which the petitioner was convicted; or

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

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

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

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

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

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

Additionally, due process concerns may toll the statute of limitations for post-conviction 

relief. The Tennessee Supreme Court has stated:

[B]efore a state may terminate a claim for failure to comply with

procedural requirements such as statutes of limitations, due process requires 

that potential litigants be provided an opportunity for the presentation of 

claims at a meaningful time and in a meaningful manner.

Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992) (citing Logan v. Zimmerman Brush

Co., 455 U.S. 422, 437 (1982)).

In the case under submission, the Petitioner was required to file his petition for 

post-conviction relief within one year of the date on which the judgment became final. 

See T.C.A. § 40-30-102(a) (2012). The Petitioner filed his petition on December 14, 

2015. This filing occurred more than one year after the judgment became final, and thus, 

was barred by the statute of limitations. The Petitioner does not allege, nor do we find 

applicable, any of the statutory exceptions to the one-year statute of limitations. After 

reviewing the record and the Petitioner’s claims, we conclude that the Petitioner has been 

“provided an opportunity for the presentation of claims at a meaningful time and in a 
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meaningful manner.” Burford, 845 S.W.2d at 208. Therefore, due process does not 

require tolling of the statute of limitations. The post-conviction court properly dismissed 

the Petitioner’s petition.

III. Conclusion

After a thorough review of the record and relevant authorities, we affirm the postconviction court’s judgment.

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ROBERT W. WEDEMEYER, JUDGE