IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT NASHVILLE

Assigned on Briefs June 22, 2010

JOSHUA JACOBS v. STATE OF TENNESSEE

Appeal from the Circuit Court for Warren County

No. F10408 Larry B. Stanley, Judge

No. M2009-02265-CCA-R3-PC - Filed September 15, 2010

On January 17, 2007, Petitioner, Joshua Jacobs, pled guilty in the Warren County Circuit

Court to one count of first degree murder, one count of aggravated burglary, and one count

of aggravated rape. On October 7, 2009, the post-conviction court received and filed a pro

se petition for post-conviction relief for Petitioner. The post-conviction court summarily

dismissed the petition as time-barred. On appeal to this Court, Petitioner argues that the postconviction court erred because applying the statute of limitations to his case is a denial of due

process. We have reviewed the record on appeal and find that there is no violation of

Petitioner’s due process rights in the dismissal of his time-barred petition. Therefore, we

affirm the decision of the post-conviction court.

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

JERRY L. SMITH, J., delivered the opinion of the court, in which THOMAS T. WOODALL and

J.C. MCLIN, JJ., joined.

Joshua Jacobs, Pro Se, Whiteville, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; Lacy Wilber, Assistant Attorney

General; and Lisa Zavogiannis, District Attorney General, for the appellee, State of

Tennessee.
OPINION

FACTUAL BACKGROUND

On January 17, 2007, Petitioner pled guilty to one count of first degree murder, one

count of aggravated burglary, and one count of aggravated rape. The trial court sentenced

Petitioner to life without parole for the first degree murder, six years for the aggravated

burglary, and twenty-five yearsfor the aggravated rape. The six-yearsentence for aggravated

burglary was ordered to be served concurrently with the life sentence for first degree murder.

The twenty-five-year sentence for aggravated rape was ordered to be served consecutively

to the sentences for first degree murder and aggravated burglary.

On September 28, 2009, Petitioner filed a pro se petition for post-conviction relief

with the prison mail room authorities. The post-conviction court filed the petition on October

7, 2009. In his petition, Petitioner admitted that the petition had been filed after the statute

of limitations had run. He stated that the “untimely filing [was] the result of his attorney’s

abandonment of the case without notifying the petition[er] of his right to proceed further.”

He argued that tolling the statute of limitations would not prejudice the State. He pointed out

that only one and a half years had passed since the entry of the judgments. He also argued

that “his ignorance of the legal requirements . . . is reasonable, due to his youth . . ., his

Mental Disabilities known to the State, and inexperience with the criminal justice system,

other than juvenile offenses.” In addition, Petitioner argued that the dismissal of the petition

would be a denial of due process. Petitioner also alleged that he was afforded ineffective

assistance of counsel leading up to and during the entry of his guilty plea.

On October 9, 2009, the post-conviction court summarily dismissed the petition

because it was time-barred by the statute of limitations. Petitioner filed a timely notice of

appeal.

ANALYSIS

On appeal, Petitioner argues that the post-conviction court erred in dismissing his

petition. The State argues that there is no basis for the tolling of the statute of limitations.

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

be filed 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 became final. T.C.A. § 40-30-102(a). Unless one of the enumerated exceptions

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applies, a court does not have jurisdiction to consider an untimely petition. See T.C.A. §

40-30-102(b). Tennessee Code Annotated section 40-30-102(b) states:

(b) 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.

In the present case, the post-conviction petition was filed more than one year after the

date of the final action by the highest court to which an appeal was taken and thus well

outside the statute of limitations. The post-conviction court properly held that Petitioner

failed to show that one of the exceptions to the one-year deadline listed in the statute was

applicable.

In addition to the exceptions set out in the statute, the courts in this State have found

that due process concerns can toll the statute of limitations in certain factual situations. See

Williams v. State, 44 S.W.3d 464 (Tenn. 2001); Sands v. State, 903 S.W.2d 297 (Tenn.

1995); Burford v. State, 845 S.W.2d 204 (Tenn. 1992).

Petitioner relies on Williams v. State, 44 S.W.3d 464 (Tenn. 2001), to support his

argument. Williams is the most recent in a line of cases including Burford v. State, 845

S.W.2d 204 (Tenn. 1992) and Sands v. State, 903 S.W.2d 297 (Tenn. 1995), analyzing when

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due process limitations toll the statute of limitations. In all three of these cases, our supreme

court decided that the statute of limitations for post-conviction relief could be tolled in the

factual situations presented. In Burford, the petitioner’s sentence was enhanced by previous

convictions that had subsequently been declared invalid, but not invalidated in time for him

to meet the statute of limitations for filing his post-conviction petition. Burford, 845 S.W.2d

at 208. Our supreme court stated that because the petitioner was in a procedural trap, the

petitioner’s due process rights would be violated by not allowing a tolling of the statute of

limitations and the filing of a post-conviction petition. Burford, 845 S.W.2d at 208-09.

In Sands, our supreme court analyzed Burford and set out the basic rule derived from

Burford and how to go about applying this rule in future cases. The supreme court stated:

[I]t will be helpful to summarize the basic rule to be derived from Burford:

that, in certain circumstances, due process prohibitsthe strict application of the

post-conviction statute of limitations to bar a petitioner’s claim when the

grounds for relief, whether legal or factual, arise after the “final action of the

highest state appellate court to which an appeal is taken”-or, in other words,

when the grounds arise after the point at which the limitations period would

normally have begun to run. In applying the Burford rule to specific factual

situations, courts should utilize a three-step process: (1) determine when the

limitations period would normally have begun to run; (2) determine whether

grounds for relief actually arose after the limitations period would normally

have commenced; and (3) if the grounds are “later-arising,” determine if, under

the facts of the case, a strict application of the limitations period would

effectively deny the petitioner a reasonable opportunity to present the claim.

In making this final determination, courts should carefully weigh the

petitioner’s liberty interest in “collaterally attacking constitutional violations

occurring during the convictions process,” Burford, 845 S.W.2d at 207,

against the State’s interest in preventing the litigation of “stale and fraudulent

claims.” Id. at 208.

Sands, 903 S.W.2d at 301 (footnote omitted). However, after going through this analysis,

the supreme court concluded that the statute of limitations had not been tolled in the Sands

situation.

In Williams v. State, 44 S.W.3d 464 (Tenn. 2001), the supreme court again held that

the statute of limitations was tolled by the factual and legal situation of the petitioner. In

Williams, there was some dispute over whether the petitioner’s trial counsel continued to

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represent him and how much the petitioner actually knew about the progress of his appeals.

The supreme court stated that the question was whether the petitioner had been “misled to

believe that [his trial] counsel was continuing the appeals process . . . .” Id. at 471. The

supreme court remanded the case to the trial court for it to determine whether the statute must

be tolled due to possible attorney misrepresentation. Id.

This Court has held that a petitioner’s personal ignorance of post-conviction

procedures, “even when alleged to stem from an attorney’s negligent failure to render advice

to the petitioner, does not toll the running of the statute” of limitations. State v. Phillips, 904

S.W.2d 123, 124 (Tenn. Crim. App. 1995). Further, we have previously determined that

mere lack of knowledge that a claim exists does not toll the statute of limitations. See, e.g.,

Jason Earl Hill v. State, No. E2005-00968-CCA-R3-PC, 2006 WL 389667, at *4 (Tenn.

Crim. App., at Knoxville, Feb. 16, 2006), perm. app. denied, (Tenn. Sept. 5, 2006) (holding

that petitioner’s lack of knowledge did not toll the statute of limitations when he argued that

his claim for relief was not discovered until the conviction was used to enhance a subsequent

federal sentence); Guillermo Matiaz Juan v. State, No. 03C01-9708-CR-00318, 1999 WL

76453, at *1-2 (Tenn. Crim. App., at Knoxville, Feb. 18, 1999), perm. app. denied, (Tenn.

July 12, 1999) (concluding that ignorance of the law did not bar application of the

post-conviction statute of limitations).

Petitioner has not shown a due process violation as required in the Burford line of

cases to toll the statute of limitations. Likewise, he has not met any of the exceptions set out

in Tennessee Code Annotated section 40-30-102(b). Therefore, Petitioner has asserted no

valid reason to toll the statute of limitations.

CONCLUSION

For the above reasons we hold that the post-conviction court was correct in dismissing

the petition for post-conviction relief.

___________________________________

JERRY L. SMITH, JUDGE

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