IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs June 28, 2022

JOHN A. PURCELL v. STATE OF TENNESSEE

Appeal from the Criminal Court for Washington County

No. 45217 Stacy L. Street, Judge

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No. E2021-00996-CCA-R3-PC

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Petitioner, John A. Purcell, appeals the dismissal of his post-conviction petition for being 

untimely filed. On appeal, he asserts that he received ineffective assistance of trial counsel 

before entering his guilty plea and that the post-conviction court erred by not conducting a 

complete evidentiary hearing before dismissing his petition as untimely. Having reviewed 

the record and the parties’ briefs, we affirm the judgment of the post-conviction court. 

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

JILL BARTEE AYERS, J., delivered the opinion of the court, in which CAMILLE R.

MCMULLEN and JOHN W. CAMPBELL, SR., JJ., joined.

Akiah C. Highsmith, Johnson City, Tennessee (on appeal), Darcee Kubisiak, Johnson City, 

Tennessee (at post-conviction hearing), for the appellant, John Anthony Purcell.

Herbert H. Slatery III, Attorney General and Reporter; Katherine C. Redding, Senior 

Assistant Attorney General; Ken C. Baldwin, District Attorney General, for the appellee, 

State of Tennessee.

OPINION

Factual and Procedural History

Petitioner was indicted for first-degree murder and especially aggravated robbery. 

He subsequently entered a nolo contendere guilty plea on June 23, 2014, to second-degree 

murder and agreed to be sentenced out of range to thirty years as a Multiple Offender with 

100% release eligibility. The facts of this case, as set forth by the State at the guilty plea 

submission hearing, are as follows:

07/13/2022
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[B]ack on the 25th day of May, 2010, the [D]efendant and three (3) 

other people, went to a residence that was actually rented in the name 

of one of the defendants, one of the ladies. Anyway, as we 

understand it, we have testimony that at a point in time the lady who 

had the apartment rented, unlocked the door, opened the door, the 

two (2) defendants, the two (2) male defendants, Mr. [Gary] Gilbert 

and [Defendant], went inside and inside was a Mr. Stephen 

Rodriquez, he was there. Apparently, he was here to sell some drugs. 

In any event, the idea was to rob this man of his money and/or drugs. 

Once the two (2) men got inside, one of which was this [D]efendant, 

the victim, Mr. Rodriguez, was pistol-whipped severely and at a 

point in time after he was basically subdued, [Defendant] here went 

to look for money and/or drugs. The house was rifled through, all 

the registries and things like that were opened, and he came back to 

where Mr. Gilbert had the [victim] still subdued, and then Mr. 

Gilbert and this [D]efendant decided that that man needed to be 

killed. And so Mr. Gilbert actually took a knife and cut his throat. 

Then the two (2) men left, went out to the car and got in the car and 

left. Basically, this [D]efendant did not actually kill Mr. Rodriguez, 

but he’s charged under the Felony Murder Rule, which, of course, is 

if you’re involved in a felony and you participate in a felony, even if 

you didn’t intend to be involved in the killing of one of the people 

inside, then you’re guilty on the law of killing the man regardless of 

the fact that you weren’t involved in the actual killing. The charge 

of Especially Aggravated Robbery in consideration of a plea, which 

is also an “A” felony is being dismissed. 

Petitioner filed an untimely pro se petition for post-conviction relief on May 8, 

2019, alleging that trial counsel rendered deficient performance and numerous other 

grounds. Petitioner conceded that his post-conviction petition was untimely but alleged 

that the statute of limitations failed to provide him with a reasonable opportunity to have 

his newly discovered grounds heard and that it was unconstitutional as applied to him 

because it denied him “[d]ue [p]rocess under the state and federal constitutions.” Petitioner 

further asserted that the untimeliness of his petition resulted from “justifiable excuses” or 

“excusable neglect” due to “lack of criminal procedure and ignorance of appellate 

procedure as options for relief.” Counsel was appointed, and an amended post-conviction 

petition was filed on July 22, 2020, alleging additional grounds for relief and further claims 

of ineffective assistance of counsel. The State in its response argued that Petitioner’s postconviction petition was untimely and should be dismissed, and that Petitioner’s claims of 

ineffective assistance of counsel were without merit. 

At the post-conviction hearing, Petitioner testified he did not receive all of his 

discovery materials until “just maybe a year ago when I requested it from [trial counsel].” 
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He said: “There are statements that I had never seen before and statements that I had 

partially heard and did not go parallel with the written statements that I had received.” 

Petitioner further testified that he received a “statement or two” from his co-defendant, Mr. 

Gilbert, and Mr. Gilbert’s “mom and dad’s statement, and maybe another person or two’s 

statements that really would have actually helped me if I had heard the full statements.” 

Petitioner testified that trial counsel did not advise him of the right against selfincrimination, and counsel failed to explore “to the fullest extent” statements from his codefendant’s family members. He said that Mr. Gilbert’s mother’s written statement failed 

to include the assertion in her audio statement that Mr. Gilbert had threatened to kill a 

family member if they spoke to anyone about the case. Petitioner testified that Timothy 

Honeycutt, Jr. told the detective that Mr. Gilbert asked him to help sell his gun because 

Mr. Gilbert needed money for an attorney. He further testified that Mr. Honeycutt also 

said Mr. Gilbert told him to “stay quiet and don’t mention this to anyone.” Petitioner 

claimed that Mr. Honeycutt’s written statement “was partial compared to the audio that I 

received about a year ago from [trial counsel].” He said that he told trial counsel that he 

knew that Mr. Gilbert was not telling the truth. Petitioner wanted an investigator to 

question everyone but he did not know if trial counsel complied with his request. 

Petitioner testified that he had a pending case in Virginia when he pled guilty in 

Tennessee. He said that trial counsel did not advise him that his Tennessee sentence could 

be ordered to be served consecutively to his Virginia sentence, and he did not understand 

what thirty years at 100% meant. Petitioner testified that he received the State’s plea offer 

of second-degree murder a week before the guilty plea submission hearing, that trial 

counsel told him that it was the best offer that Petitioner would receive and that Petitioner 

did not have to accept the offer but that it was in his best interest. Petitioner claimed that 

he did not have time to think about the plea offer because of “all the things that were going 

on in Tennessee and Virginia;” however, he signed the plea agreement the next time that 

he met with trial counsel. He said that he did not undergo a mental health assessment prior 

to entering the plea nor was there anything done to determine his competency at the time 

of the offense. 

Petitioner testified that trial counsel did not discuss the plea offer with him or review 

the waiver of rights form in depth with him prior to the guilty plea submission hearing. He 

said that on the day of the hearing, trial counsel spoke with him in court and “had some 

papers . . . and basically was going over the plea, you know, skipping over it . . .” Petitioner 

testified that trial counsel failed to advise him prior to the plea hearing that he would 

incriminate himself during the plea submission hearing. 

On cross-examination, Petitioner admitted that he knew prior to the plea hearing 

that he had the right to remain silent and not testify if he proceeded to trial, that he signed 

the guilty plea agreement and waiver of rights form and that he understood from the form 

that he had the right to talk or not talk. Petitioner further admitted that he never told the 
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trial court that he did not understand the plea agreement and waiver of rights form. 

Although he told the trial court at the plea hearing that he understood his conviction could 

be used against him in the future, Petitioner claimed that he did not fully understand what 

he was agreeing to or that his conviction would be used to enhance another sentence. 

Petitioner agreed that the transcript of the plea hearing indicated that he was advised that 

his sentence would be served at 100%. However, he said that he was “under the impression 

that hundred percent was that that’s what it says, but it’s actually 85%.” Petitioner also 

testified that he did not understand “that pleading outside of my range meant that I could 

get more time. I didn’t understand that.” 

After the Petitioner concluded his testimony and closed his proof, and before the 

State presented any witnesses, the post-conviction court announced that it was required to 

make a threshold determination of “whether or not the petition is even properly before this 

Court.” The post-conviction court noted that a post-conviction petition must be filed “one 

year from the date of the last or final action of the highest state appellate court to which the 

appeal is taken, or if no appeal is taken, within one year of the date on which the judgment 

becomes final.” The post-conviction court found: “[Petitioner] pled guilty on June 23[], 

2014. Judgment becomes final one month later, which is July 23[], 2014. Petitioner’s 

petition for post-conviction relief was filed on June 10, 2019, almost five years later, which 

is clearly outside of the statute of limitations.”

The post-conviction court reviewed the statutory exceptions to the statute of 

limitations for filing a post-conviction petition and concluded that Petitioner did not allege 

a claim establishing a new constitutional right, a claim based upon new scientific evidence 

establishing that Petitioner was actually innocent of the offense, or a claim that his sentence 

was enhanced because of a previous conviction that was later held to be invalid. The postconviction court noted the three types of cases in which due process requires the tolling of 

the statute of limitations and found that Petitioner’s claims for relief did not arise after the 

statute of limitations had passed, there was no proof suggesting Petitioner suffered from 

mental incompetence that prevented him from complying with the deadline for filing his 

petition, and there was no proof of attorney misconduct necessitating tolling of the statute 

of limitations. The post-conviction court further found no proof to show that Petitioner 

had been pursuing his rights diligently and that some extraordinary circumstances 

prevented a timely filing of the petition. 

The post-conviction court concluded:

This Court is going to find that the petition for post-conviction relief 

was filed after the one-year statute of limitations had ran, and that 

none of the tolling statutory or due process factors apply that would 

justify the [...] tolling, rather, of the statute of limitations, and that 

the Petitioner was given opportunities today to present such evidence 

that [...] would have justified the tolling of the statute of limitations. 
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On the above basis, the post-conviction court dismissed Petitioner’s post-conviction 

petition without completing the evidentiary hearing. 

ANALYSIS

Petitioner argues that trial counsel was ineffective for failing to “fully review” 

discovery with him, failing to “investigate inconsistencies in written and audio statements,” 

and for not explaining the plea agreement and ensuring that Petitioner understood it. 

Petitioner further alleges that the post-conviction court erred by conducting an “incomplete 

evidentiary hearing” and not permitting “trial counsel to be cross[-]examined when a 

colorable claim of ineffective assistance of counsel existed.” The State responds that the 

post-conviction court properly dismissed the post-conviction petition as untimely without 

a full evidentiary hearing. The State further asserts that even if this court were to find that 

the post-conviction court erred by dismissing the petition as untimely, “appellate review of 

[P]etitioner’s claim is improper at this time” because the State was not “afforded an 

opportunity to present any proof at the evidentiary hearing[,] and the post-conviction court 

did not make any findings of fact or conclusion of law regarding the merits of [Petitioner’s] 

ineffective assistance claim.”

 

Post-conviction relief is available when a “conviction or sentence is void or voidable 

because of the abridgment of any right guaranteed by the Constitution of Tennessee or the 

Constitution of the United States.” T.C.A. § 40-30-103. A person in custody under a 

sentence of a court of this state must petition for post-conviction 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.” 

Id. § 40-30-102(a). “The statute of limitations shall not be tolled for any reason, including 

any tolling or saving provision otherwise available at law or equity.” Id. Moreover, “[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. If it plainly appears on the face

of the post-conviction petition that the petition was filed outside the one-year statute of 

limitations or that a prior petition attacking the conviction was resolved on the merits, the 

post-conviction court must summarily dismiss the petition. Id. § 40-30-106(b). “The 

question of whether the post-conviction statute of limitations should be tolled is a mixed 

question of law and fact that is ... subject to de novo review.” Bush v. State, 428 S.W.3d 

1, 16 (Tenn. 2014) (citing Smith v. State, 357 S.W.3d 322, 355 (Tenn. 2011) ).

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

statute of limitations for petitions for post-conviction relief: (1) claims based on a final 

ruling of an appellate court establishing a constitutional right not recognized as existing at 

the time of trial and given retroactive effect by the appellate courts; (2) claims based upon 

new scientific evidence establishing that the petitioner is actually innocent of the 
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conviction offense; and (3) claims seeking relief from a sentence that was enhanced 

because of a previous conviction and the previous conviction was later held to be invalid. 

T.C.A. §§ 40-30-102(b)(1)-(3).

In addition to the statutory exceptions, our supreme court has held that due process 

principles may require tolling the statute of limitations. See Whitehead v. State, 402 

S.W.3d 615, 622-23 (Tenn. 2013). To date, our supreme court “has identified three 

circumstances in which due process requires tolling the post-conviction statute of 

limitations” (1) when the claim for relief arises after the statute of limitations has expired; 

(2) when the petitioner’s mental incompetence prevents him from complying with the 

statute of limitations; and (3) when the petitioner’s attorney has committed misconduct. 

Id. at 623-24. To succeed upon such a claim, a petitioner must show “(1) that he or she 

had been pursuing his or her rights diligently, and (2) that some extraordinary circumstance 

stood in his or her way and prevented timely filing.” Id. at 631 (citing Holland v. Florida, 

560 U.S. 631, 648-49 (2010) ).

Petitioner in this case concedes that his petition for post-conviction relief was filed 

outside of the one-year statute of limitations. We agree with the findings of the postconviction court that nothing was presented at the post-conviction hearing that would 

justify the tolling of the limitations period. Petitioner pled guilty on June 23, 2014, and 

therefore, his judgment became final on July 23, 2014. State v. Green, 106 S.W.3d 646 

(Tenn. 2003). As such, the statute of limitations for Petitioner’s post-conviction claims 

expired on July 23, 2015. Petitioner’s petition for post-conviction relief was filed on June 

10, 2019, almost five years later, which is clearly outside of the limitations period. He has 

not demonstrated that any of the statutory exceptions to toll the statute of limitations apply 

in his case or that he is entitled to due process tolling. Furthermore, there is no proof to 

show that Petitioner had been pursuing his rights diligently and that some extraordinary 

circumstances prevented a timely filing of the post-conviction petition. Thus, the petition 

was untimely, and the post-conviction court properly dismissed the petition without 

completing the evidentiary hearing. Petitioner is not entitled to relief. 

CONCLUSION

Based on the foregoing, we affirm the dismissal of the petition for post-conviction 

relief as untimely. 

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JILL BARTEE AYERS, JUDGE