Jah'Quie Brown v. State of Tennessee

08/12/2024

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs August 6, 2024

JAH’QUIE BROWN v. STATE OF TENNESSEE

Appeal from the Circuit Court for Madison County

No. C-23-309 Joseph T. Howell, Judge

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No. W2024-00327-CCA-R3-PC

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The Petitioner, Jah’quie Brown, appeals the post-conviction court’s dismissal of his

petition for post-conviction relief as untimely. He argues he is entitled to tolling of the

statute of limitations because his trial counsel failed to inform him of his right to file a

direct appeal or petition for post-conviction relief. After review, we affirm the judgment

of the post-conviction court.

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

CAMILLE R. MCMULLEN, P.J., delivered the opinion of the court, in which ROBERT W.

WEDEMEYER and TOM GREENHOLTZ, JJ., joined.

William J. Milam, Jackson, Tennessee, for the appellant, Jah’quie Brown.

Jonathan Skrmetti, Attorney General and Reporter; Katherine Orr, Assistant Attorney

General; Jody Pickens, District Attorney General; and Shaun A. Brown, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

The Petitioner filed a pro se petition for post-conviction relief on November 15,

2023. Neither the petition, nor the appellate record, contain the judgments of conviction.

According to the petition, the Petitioner was convicted by a Madison County jury of

possession of a firearm, attempted possession of drug paraphernalia, and driving with a

suspended license, and sentenced to fifteen years. No direct appeal was filed. The

Petitioner contended that though the post-conviction petition was not filed within the one-

year statute of limitations, his claim should not be barred because he “had [a] lack of

knowledge that [he] couldn’t go back up for another [trial][.]” The State filed a motion to

dismiss the petition because it was untimely. The post-conviction court appointed counsel

to represent the Petitioner, but no amended petition was filed.

The post-conviction court held a hearing on the petition. At the hearing, post-

conviction counsel conceded that the petition was untimely and stated that the Petitioner

“would like to offer some testimony as to why no direct appeal was filed and some further

insight as to why [there was a] delay in the filing of this post-conviction petition.” The

Petitioner testified that after his motion for new trial was denied, he was unable to hire

counsel for an appeal. He did not ask the trial court to appoint counsel and was unaware

that was an option. He did not hear from trial counsel after his motion for new trial was

denied. Due to the pandemic, the prison was “locked down” and he was unable to access

the law library. After the pandemic ended in 2022, he started going to the law library and

learned he had a right to appeal his convictions. At the conclusion of his testimony, the

post-conviction court said, “[The Petitioner], and I take him at his word, but there’s nothing

that would authorize the tolling of that statute of limitations under the law.”

The post-conviction court filed an order dismissing the petition as untimely. The

order stated that the trial court filed its order denying the Petitioner’s motion for new trial

on March 27, 2020.1 The Petitioner took no further action until filing the instant petition

more than three years later. The post-conviction court determined that “nothing in the

[Petitioner’s] testimony is a basis for the [c]ourt to extend the [one]-year statute of

limitations.” Accordingly, the court dismissed the petition. This timely appeal followed.

ANALYSIS

The Petitioner argues that the post-conviction court erred in dismissing his petition

for post-conviction relief. He contends that the statute of limitations should have been

tolled because “he did not receive any information from his attorney concerning his direct

appeal nor any information concerning post-conviction relief.” The State responds, and

we agree, that the Petitioner failed to establish he was entitled to due process tolling.

A petition for post-conviction relief must be filed “within one (1) 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 (1) year of the date on which the judgment became final.” Tenn.

Code Ann. § 40-30-102(a). “Time is of the essence of the right to file a petition for post-

conviction relief . . . and the one-year limitations period is an element of the right to file

the action and is a condition upon its exercise.” Id. The timeliness of a petition for post-

1

Neither the motion for new trial, a transcript of the motion for new trial hearing, nor the order

denying the motion for new trial is included in the appellate record.

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conviction relief is therefore jurisdictional, and if the petition is not timely, a court is

without authority to grant or deny relief.

In addition to the statutory exceptions, a court may consider an untimely petition for

post-conviction relief if applying the statute of limitations would deny a petitioner due

process. Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992). Whether due process

requires tolling of the post-conviction statute of limitations is a mixed question of law and

fact subject to de novo review. Whitehead v. State, 402 S.W.3d 615, 621 (Tenn. 2013)

(citing Smith v. State, 357 S.W.3d 322, 355 (Tenn. 2011)). A post-conviction court’s

findings of fact, however, are conclusive on appeal unless the evidence preponderates

against them. Id. The Tennessee Supreme Court has identified three circumstances in

which due process requires tolling of the statute of limitations: (1) claims arising after the

statute of limitations has expired; (2) claims based on mental incompetence that prevented

the petitioner from complying with the statute of limitations; and (3) claims based on

attorney misconduct. Id. at 623-24. However, equitable tolling “must be reserved for those

rare instances where—due to circumstances external to the party’s own conduct—it would

be unconscionable to enforce the limitation period against the party and gross injustice

would result.” Id. at 631-32 (quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir.

2000)).

A petitioner is entitled to due process tolling based on attorney misconduct if the

petitioner shows that: (1) he or she has been pursuing his or her rights diligently; and (2)

some extraordinary circumstance prevented timely filing. Id. at 631 (citing Holland v.

Florida, 560 U.S. 631, 649 (2010)). The first prong “does not require a [petitioner] to

undertake repeated exercises in futility or to exhaust every imaginable option, but rather to

make reasonable efforts. . . . Moreover, the due diligence inquiry is an individualized one

that must take into account the conditions of confinement and the reality of the prison

system.” Id. (quoting Downs v. McNeil, 520 F.3d 1311, 1323 (11th Cir. 2008)). The

second prong is met when the petitioner’s attorney “abandons the [petitioner] or acts in a

way directly adverse to the [petitioner’s] interest, such as by actively lying or otherwise

misleading the [petitioner] to believe things about his or her case that are not true.” Id.

The Tennessee Supreme Court has highlighted that “[i]n every case in which we have held

the statute of limitations is tolled, the pervasive theme is that circumstances beyond a

petitioner’s control prevented the petitioner from filing a petition for post-conviction relief

within the statute of limitations.” Smith, 357 S.W.3d at 358 (emphasis in original).

Both parties agree that the petition was untimely. Because no direct appeal was

filed, the statute of limitations began to run on March 27, 2020, when the trial court denied

the Petitioner’s motion for new trial. State v. Mixon, 983 S.W.2d 661, 670 (Tenn. 1999)

(“If a post-trial motion is timely filed, the judgment becomes final upon entry of an order

disposing of the post-trial motion.”); Tenn. R. App. P. 4(c). Accordingly, the deadline for

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filing a post-conviction petition was March 27, 2021. The Petitioner did not file the petition

until November 15, 2023—more than two years after the expiration of the statute of

limitations. The post-conviction court was therefore without jurisdiction to address the

petition unless the Petitioner established that he was entitled to due process tolling.

We conclude that the Petitioner is not entitled to due process tolling. First, he failed

to establish he was pursuing his rights diligently. The Petitioner testified that he did not

hear from his trial counsel after his motion for new trial was denied. Because he was unable

to access the prison’s law library during the pandemic, he did not learn he had the right to

appeal until the library reopened in 2022. He did not file his petition, however, until

November 15, 2023. Though he did not specify at what point in 2022 the library reopened,

he waited somewhere between nine months and one year and nine months to pursue his

rights. See Williams v. State, No. E2022-01768-CCA-R3-PC, 2023 WL 7130296, at *4

(Tenn. Crim. App. Oct. 30, 2023) (“[E]ven if restricted library access could constitute a

circumstance beyond the Petitioner’s control that prevented a timely filing of his petition—

and it does not—we conclude that the Petitioner has failed to show that he pursued his

rights diligently.”), perm. app. denied (Tenn. Apr. 11, 2024). Second, he failed to establish

that some extraordinary circumstance prevented timely filing. This court has routinely

concluded that trial counsel’s failure to advise a petitioner about the right to seek post-

conviction relief does not justify equitable tolling. See McVay v. State, No. W2021-00324-

CCA-R3-PC, 2022 WL 421112, at *4 (Tenn. Crim. App. Feb. 11, 2022), perm. app. denied

(Tenn. June 9, 2022); Carter v. State, No. W2018-00285-CCA-R3-PC, 2018 WL 6266166,

at *3 (Tenn. Crim. App. Nov. 30, 2018), perm. app. denied (Tenn. Mar. 28, 2019).

Accordingly, this is not one of the rare instances where enforcing the limitations period

would be unconscionable. Whitehead, 402 S.W.3d at 631-32.

CONCLUSION

Because the Petitioner is not entitled to due process tolling, we affirm the judgment

of the post-conviction court.

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CAMILLE R. MCMULLEN, PRESIDING JUDGE

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