### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs A ugust 19, 2003 MICHAEL J. GRANT v. STA TE OF TENNESSEE Direct Appeal from the Criminal Court for Bradley County

No. M-02-837 R. Steven Bebb, Judge

No. E2 003-0 0637- CCA-R3 -PC December 23, 2003 The petitioner appeals the summary dismissal of his post-conviction petition. The petitioner alleges his untimely petition should be tolled on due process g rounds because of r elian ce on counsel’s “guarantee”

of releas e from inc arcer

ation af ter serv ing 30% o f his sentence. We affirm the summary dismissal for failure to file for post-convictio n relief within the one-y ear statute of limitations provided in Tenne ssee Code

Annotate d section

40-30-20 2(a) an

d affirm

. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed J OHN E VERE TT W IL LI AMS , J., delivered the opinion of the court, in which A LAN E. G LENN , J., joined. J OSEPH M. T IPTON , J., filed a dissenting opinion. Michael Joseph Grant, Wartburg, Tennessee, Pro Se. Paul G. Summers, Attorney Gene ral and Reporter; Braden H. Boucek , Assistan t Attorne y G eneral ; Jerry N. Estes, Di s trict Attorney Ge neral, and Stephen D. Crump, Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION The petitione

r, Michael Joseph Gr

ant, alle ges in hi s pro se post-conviction petition that on April28, 2001, he entered a guilty plea to five counts of kidnapping and one count of robbery . He further states tha t he rec eived a s entence

of six years a s a Range

I off ender w ith a rele ase eligibility date of 30%. The record doesnot contain documentation of these allegations, but we accept them for purposes of our review. According to the pos t-conviction petition, the petitioner was denied parole on June 10, 2002, and his appeal therefrom was denied on Aug ust 9, 2002. The petitioner filed seeking a petition for post-conviction relief on Nove mber 22, 2002. On February 7, 2003, his petition was summa rily dismissed d

ue to untimely filing without a hear ing by the trial court. That summary dismissal is now before us for review.-2-

The petitioner alleges that he was “g uaranteed” by

his trial counsel that the petitione r would “serve, at most, on

ly th irty percen t (30%) o f his sente

nce day -for-d ay .” Trial counsel a lso alleg edly advised the petitioner that, due to the petitioner’s medical status of HIV and Hepatitis C, the State wo ul d r el ea se hi m a t t he ea rl ie st op po rt un it y. The post-conviction petition enumerates twelve instances of alleged malfeasance on the part of trial cou nsel. The

petitione r acknow le dges tha

t t he petition is untimel

y bu t contend s that his reliance on the erroneous advice of counsel caused the petitioner to forego filing f or post-conviction relief within the

statutory period a nd that due

process consider ations sho

uld toll t he limitations period. Analysis Withcertain exceptions, the filing of a post-conviction petition in Tennessee must be made within one year

of the date the conviction becomes final. Tenn. Code Ann. § 40-30-202( a) (1997 and Supp. 2002). However, a court may c onsider an untimely petition if the statute of limitations would deny the petitioner due

process. See Bur ford v. Sta te , 845 S.W.2d 204, 208 (Tenn. 1992). Ou r supre me court has said “the principles of due process ar e flexible and require balancing of a petitioner’s liberty

interest s again st the State ’s finali ty in terests on a case

by case ba sis.” Sample v. State , 82 S.W.3d 267, 273-74 (Tenn. 2002). The petitione

r herei n places h eav y reliance

on Williams v. Sta

te , 44 S.W.3d 464 (Tenn. 2001). That cas e involve d an untime ly post-conviction petition filing by a pe titioner whose attorney had failed to properl y withdraw from representation following a direct a ppeal. The petitioner alleged that he was unaware of the fin ality of his con viction a s a resul

t of the at torney ’s action s. Under

those circumst ances, the supreme court remanded for an evidenti ary

hearing to deter mine if the petitioner was denied a reasonable opportunity to seek post-conviction relief due to possible misrepresentation by counsel. Id. at 471.
In regard to the instant case, the petitioner al leges twelve (12) instances of his counsel’s deficient representation. Only

one of these, the “gu

arante e” of the

maximum time t

o serve, would conceiv ably

be impac ted by

relianc e on the “ guara

ntee.” A ll other alleged deficiencies wer

e known to the petitioner at the time of his guilty plea

. We are not persuaded that the facts of Williams provide t he petitioner the r

elief he seeks. In that case, the petitioner had justifiable reason to believe he w as still represented by c ounsel during the time period in which the post-conviction claim should have been filed. There is no such confusionin the insta

nt case, as the pe

titioner w as awar

e of the f inality of his convicti on date

and that no appeal was to be filed. The grievances the pe titioner alleges against counsel wer e all extant on the date he entered his plea, save the alleg ed “guarantee” a s to the maxi mum time of the peti tioner’s incarceration. We conclude that the petitioner could not rea sonably rely on such an alleged representation and that the summary dismissal was proper.-3- Conclusion Based o n the afo rementio ned rea sons and th e recor d as a who le, we a ffirm the trial cou rt.

___________________________________ JOHN EVERETT WILL IAMS, JUDGE