Williams v. State

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

January 3, 2001 Session

DEXTER L. WILLIAMS v. STATE OF TENNESSEE

Appeal By Permission from the Court of Criminal Appeals

Criminal Court for Blount County

No. C-9849 Hon. W. Dale Young, Judge

No. E1999-00871-SC-R11-PC - Filed March 29, 2001

The appellee in this case was convicted of first degree murder and sentenced to life imprisonment.

After the Court of Criminal Appeals affirmed the conviction, the appellee averred that his trial

counsel failed to notify him of counsel’s withdrawal from the case, or to explain to him his rights

for filing a pro se petition to this Court. Although a Rule 11 petition was eventually filed, it was

dismissed as time-barred. Appellee then filed a post-conviction petition for relief, which the trial

court dismissed without a full evidentiary hearing because the appellee was unprepared to present

evidence. The Court of Criminal Appeals remanded the case for an evidentiary hearing. The State

appealed, arguing that the post-conviction petition was untimely pursuant to the 1995 Post-

Conviction Procedure Act and should have been dismissed. We agree that the appellee filed his

petition after the statute of limitations had run. However, because the appellee may have been

deprived by his counsel of a reasonable opportunity to seek post-conviction relief, due process

considerations may have tolled the limitations period during this time when the appellee was unable

to seek such relief. Because the record needs further development for this Court to decide this issue,

we affirm the decision of the Court of Criminal Appeals to remand the case to the trial court for

further evidentiary hearing to determine the circumstances surrounding the appellee’s untimely filing

of his post-conviction petition.

Tenn. R. App. P. 11 Application by Permission; Judgment of the Court of Criminal

Appeals Affirmed; Case Remanded

WILLIAM M. BARKER, J., delivered the opinion of the court, in which E. RILEY ANDERSON, C.J., and

ADOLPHO A. BIRCH, JR., J., joined. FRANK F. DROWOTA, III, J., filed a dissenting opinion, in which

JANICE M. HOLDER, J., joined.

Paul G. Summers, Attorney General & Reporter; Michael E. Moore, Solicitor General; Gordon W.

Smith, Associate Solicitor General, Nashville, Tennessee, for the appellant, State of Tennessee.

John E. Eldridge, Knoxville, Tennessee, for the appellee, Dexter L. Williams.

OPINION

BACKGROUND

The procedural history in this case is extensive, but its review is essential to our resolution

of this case. In 1993, Dexter Williams, the appellee, was convicted of first degree murder and

sentenced to life imprisonment. The Court of Criminal Appeals affirmed his conviction and

sentence on January 9, 1995. The record in Williams’s direct appeal reflects that on October 18,

1995, approximately nine months after the intermediate court affirmed his conviction, Williams’s

appointed trial attorney filed a motion to withdraw as counsel pursuant to Tennessee Supreme Court

Rule 14.1 In his motion, counsel stated that after he received notice of the intermediate court’s

affirmation of the conviction, he “sent a copy of the Opinion along with a cover letter to the

Defendant advising [him] of the court’s decision and advising that counsel no longer had the

authority to represent Appellant to a further court.” Counsel also stated that on October 12, 1995,

Williams notified him that he never received this letter. Consequently, in this Rule 14 application,

counsel stated that he was

aware that the sixty day time period in which to file permission for application to

appeal is not to be extended, however, in that Defendant did not receive proper

notice, his due process rights are implicated, and thereby jeopardized. Additionally,

since counsel failed to provide a timely Rule 14 notice, counsel would request that

this Court grant Appellant an additional time period in which to file his permission

to appeal.

The Court of Criminal Appeals denied the motion as untimely.

On November 8, 1995, ten months after the decision of the Court of Criminal Appeals,

counsel filed an application for permission to appeal to this Court. Because this application was also

untimely pursuant to Rule 11(b) of the Tennessee Rules of Appellate Procedure,2 this Court, without

jurisdiction to consider the merits of the application, denied and dismissed the application for

1

Rule 14 requires that “[p]ermission for leave to withdraw as counsel for an indigent defendant after an adverse

final decision in the Court o f Criminal Ap peals and b efore prep aration and filing of an App lication for P ermission to

Appeal in the Supreme Co urt must be obtained from the Court of Criminal Appeals by filing a motion with the Clerk of

that Court not later than fourteen (14) days after the Court’s entry of final judgment.”

2

Rule 11(b) mandates that an application for permission to appeal shall be filed within 60 days after the entry

of the judgm ent of the Co urt of Crimina l Appeals if no timely petition for rehearing is filed .

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permission to appeal.3 See Tenn. R. App. P. 2 (prohibiting this Court from extending the time for

filing an application for permission to appeal prescribed in Rule 11).

Thereafter, Williams filed a pro se petition for post-conviction relief on October 24, 1996,

asserting fifteen grounds for relief, claiming, among other things, that he was “denied due process

and effective assistance of counsel during the appellate process.”4 On November 22, 1996, the trial

court filed a preliminary order and, finding Williams to have made a colorable claim, appointed him

an attorney who filed an amendment to the petition. Later, this attorney was allowed to withdraw

from the case because his secretary was related to the victim in the original case. New counsel was

then appointed, but eventually, pursuant to separate requests by both Williams and the attorney, he

was allowed to withdraw as well. The withdrawal order, entered July 16, 1998, also granted

Williams his request to represent himself.

The trial court scheduled the post-conviction relief hearing for March 26, 1999. Although

the parties appeared in court on that date, Williams testified that he was unable to proceed with the

hearing because he never received “the stuff [he] requested for discovery.”5 Moreover, “the

witness[es he] requested to have been subpoenaed” to be at the hearing were not there. The trial

court then dismissed the petition for failure to present evidence, informing Williams that he could

“appeal to the criminal court of appeals and see what they say about all this.”

Williams appealed, arguing that because he was not provided a full and fair hearing on his

claims for relief, the trial court violated his right to due process of law. The Court of Criminal

3

At his brief po st-conviction re lief hearing, Williams related a different version of the events that had

transpired up until this point in time. He alleged that “he waited around until about maybe October, November,

somewhere around in the re of 199 5,” but he ne ver heard from his attorn ey. He furth er asserted that finally, after

contacting his attorney himself, his attorney told him that he had “not filed anything on [his] appeals.” Williams stated

that as a result of his attorney’s alleged failure to inform him that he would not continue the direct appeal, on November

8, 1995, ten months after the intermediate court’s judgment, Williams filed a pro se application to appeal to the Supreme

Court. Our records do not show any evidence of this application.

4

More sp ecifically, William s stated in his petitio n that

counsel failed [t]o assert all available issues for appellate review and/or raise them in a federal

constitutional context, [furthermore], counsel failed to i[n]form the [petitioner] of the fact that he was

not going to continue his appeal after the court of criminal appeals up held his con viction. Counsel[’]s

failure to i[n]form petitioner of this fact denied him the right to ask the app eals court to re consider in

light of the fact that they b ased [th eir] opinion on misconstrued facts. The petitioner was denied

access to the Tennessee Supreme Court because counsel failed to file application for permission in a

timely manner . . . . [Furthermore], counsel failed to i[n]form petitioner of the fact that he was not

going to continue his appeal after the court of criminal appeals upheld his conviction. Counsel[’s]

failure to i[n]form the petitioner of this fact denied petitioner du e process , therefor[e] irre parably

prejudiced the petitioner.

5

Specifically, Williams told the trial court that he needed copies of depositions, a copy of a tape recorded

confession that he allegedly made, copies of the victim’s autopsy report, and copies of the opening a nd closing a rguments

at trial.

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Appeals agreed that the trial court erred by not granting a continuance and in dismissing the case

without an evidentiary hearing. However, the intermediate court concentrated its analysis on the

statute of limitations as the important issue. It addressed the State’s discussion of Williams’s failure

to timely file his petition and Williams’s allegation that such delay stemmed from ineffective

assistance of counsel. The court remanded the case to the trial court for a hearing “initially to

address the circumstances of the petitioner’s direct appeal, of the application for permission to

appeal, and of trial counsel’s relationship to the application–as all relate to the issue of the statute

of limitations. Any further hearing would depend on the trial court’s decision on that issue.”

We granted the State’s application for permission to appeal. The State argues that Williams’s

post-conviction petition is time-barred and should have been summarily dismissed by the Court of

Criminal Appeals without remanding the case for further proceedings. Although we agree with the

State that the petition was filed beyond the statutory limitations period, we are concerned that

Williams may have been deprived by his counsel of a reasonable opportunity to seek post-conviction

relief. Therefore, due process considerations may have tolled the running of the statute of limitations

for filing a post-conviction petition in this case. Because further development of the record is needed

before this issue can be resolved, we affirm the decision of the Court of Criminal Appeals to remand

the case for an evidentiary hearing to determine the circumstances surrounding the appellee’s filing

of his post-conviction petition.

ANALYSIS

The State argues that the post-conviction petition in this case is “indisputably time-barred”

under the 1995 Post-Conviction Procedure Act, Tenn. Code Ann. §§ 40-30-201 to -310 (1997 &

Supp. 2000). The Act governs all petitions for post-conviction relief filed after May 10, 1995. 1995

Tenn. Pub. Acts. ch. 207, § 3. Because the appellee filed his petition for post-conviction relief in

October 1996, the Act is applicable in this case.

The State relies on the plain meaning of the statute to argue that the appellee’s October 1996

petition was untimely. Specifically, the State asserts that pursuant to section -202(a),6 the appellee’s

6

Tennesse e Code Annotated section 40 -30-202 (a) provid es:

(a) Except as provided in subsections (b) and (c), a person in custody under a sentence of a court of

this state must petition for post-conviction relief under this part 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, or consideration of such petition

shall be barred. The statute of limitations shall not be tolled for any reason, including any tolling or

saving provisio n otherwise available at law or equity. Time 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 such an action and is a condition upon its exercise.

Except as specifically provided in subsections (b) and (c), the right to file a petition for post-conviction

relief or a motion to reopen under this chapter shall be extinguished upon the expiration of the

limitations period.

(continued ...)

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time period began to run on January 9, 1995, after the Court of Criminal Appeals–the highest state

appellate court to which an appeal was taken–affirmed his conviction. In the alternative, the State

concedes that Williams might have had one year to file the petition from May 10, 1995. See 1995

Tenn. Pub. Acts ch. 207, § 3 (stating that “notwithstanding any other provision of this part to the

contrary, any person having ground for relief recognized under this part shall have at least one (1)

year from May 10, 1995, to file a petition . . . under this part”). Under either circumstance, the State

argues, Williams missed the deadline and thus, his petition should be deemed untimely.

We agree with the State that the language of the Act is unambiguous. The Act clearly

mandates that post-conviction claims be filed within one year from the date of the final action or

within one year from the enactment of this statute. Williams had one year after May 10, 1995, in

which to file his petition, but he did not do so. Therefore, Williams failed to seek timely post-

conviction relief under a strict application of the statute.

However, we are not prepared to summarily dismiss this petition as “indisputably time-

barred.” This Court has previously held that strict application of the statute of limitations may not

deny a petitioner “a reasonable opportunity to assert a claim in a meaningful time and manner,”

Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000), and we are concerned that a strict application of

the statute in this case could have this effect on the appellee. Specifically, the record indicates that

the appellee might have been denied the opportunity to challenge his conviction in a timely manner

through no fault of his own but because of the possible misrepresentation of his counsel.7

Courts in this state have previously recognized that in certain circumstances, strict application

of the statute of limitations would deny a defendant a reasonable opportunity to bring a post-

conviction claim and thus, would violate due process. In Burford v. State, 845 S.W.2d 204 (Tenn.

1992), the defendant was faced with the possibility of being forced to serve a sentence enhanced by

previous convictions that were no longer in effect. Under the unique circumstances of that case, we

first determined that although the statute of limitations was constitutional, “application of the statute

may not afford a reasonable opportunity to have the claimed issue heard and decided.” Id. at 208.

Concluding that the petitioner’s private interest in preserving his opportunity to attack his conviction

and incarceration on the grounds that he would serve an excessive sentence superseded the

government’s interest in administrative efficiency and economy, we held that application of the

statute of limitations deprived the defendant of liberty without due process of law. See id. at 210.

6

(...continued)

7

Contrary to the dissent’s assertion, we are not holding that a petitioner may be excused from filing an untimely

post-conviction petition as a result of counsel’s negligence. Instead, the focus here is only upon trial and app ellate

counsel’s alleged misrepresentation in failing to properly withdraw from representation and in failing to notify the

petitioner that n o applica tion for perm ission to app eal would b e filed in this Cou rt.

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Recently, in Seals v. State, 23 S.W.3d 272 (Tenn. 2000), this Court was presented with an

issue more closely resembling the one before us now. In this consolidated appeal, the two petitioners

argued that they were unable to file timely post-conviction petitions due to their alleged mental

impairments. We were asked to determine whether mental incompetency tolls the one-year statute

of limitations for filing a post-conviction petition. We held that “due process requires tolling of the

statute of limitations where a petitioner is denied the reasonable opportunity to assert a claim in a

meaningful time and manner due to mental incompetence.” Id. at 279. The justification for our

holding was that “‘if the petitioner was mentally incompetent, and therefore legally incapable, he

would be denied any opportunity to assert his constitutional rights in a post-conviction petition,

unless the period of limitations was suspended during his mental incompetence.’” Id. at 278

(quoting Watkins v. State, 903 S.W.2d 302 (Tenn. 1995), superseded by Tenn. Code Ann. § 40-30-

202).

The petitioners in Seals argued that circumstances beyond their control, i.e., mental illness,

precluded them from actively raising their post-conviction claims. Likewise, an attorney’s

misrepresentation, either attributable to deception or other misconduct, would also be beyond a

defendant’s control. If a defendant erroneously believes that counsel is continuing to represent him

or her, then the defendant is essentially precluded from pursuing certain remedies independently.

For example, it is well-established that defendants are generally restricted from representing

themselves while simultaneously being represented by counsel. See State v. Burkhart, 541 S.W.2d

365, 371 (Tenn. 1976) (“[The accused] does not have a constitutional right under the State or Federal

Constitution to participate [i]n propria persona in his own defense and simultaneously to be

represented by participating counsel.”); see also State v. Muse, 637 S.W.2d 468, 470 (Tenn. Crim.

App. 1982) (stating that appellant may not file pro se motions while being represented by counsel)

(citing Burkhart). Moreover, even if a defendant could file a pro se motion to appeal, procedural

restrictions preclude certain motions from being filed and decided simultaneously. While the dissent

is correct in stating that there is no express statutory prohibition to a litigant simultaneously pursuing

a direct appeal of a conviction and a post-conviction petition collaterally attacking the conviction,

the Post-Conviction Procedure Act clearly contemplates that a post-conviction petition is

appropriately filed only after the direct appeal process has concluded. Tennessee Code Annotated

section 40-30-202(a) specifically states that “a person in custody under a sentence of a court of this

state must petition for post-conviction relief under this part within one (1) year of the date of the final

action of the highest state appellate court to which an appeal is taken . . . .” There are sound reasons

for not permitting a direct appeal and a collateral attack upon the same conviction to be pending

simultaneously. First, judicial economy dictates that only one appeal should be considered at one

time; if a Rule 11 application is granted and this Court finds in favor of the appellant, the post-

conviction petition would most likely be dismissed or continuously amended to reflect the on-going

litigation. Second, the issues raised in a post-conviction petition cannot be ripe for review if a Rule

11 application is pending a decision by this Court. And finally, the issues in the post-conviction

petition would be rendered moot if this Court reversed the conviction and remanded for a new trial.

See, e.g., Laney v. State, 826 S.W.2d 117, 118 (Tenn. 1992); Gibson v. State, 7 S.W.3d 47, 49-50

(Tenn. Crim. App. 1998).

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The Florida courts have recently considered a case similar to this one. In Steele v. Kehoe,

724 So. 2d 1192 (Fla. Dist. Ct. App. 1998), the defendant claimed that his attorney negligently failed

to file timely post-conviction relief even though he orally promised to do so. Consequently, the

defendant’s attempts to file his own motions outside the time period were dismissed as time-barred.

The defendant then filed a civil suit against his attorney for malpractice. The trial court dismissed

his complaint, finding that the defendant was precluded from proving his wrongful conviction

because his post-conviction relief petition was jurisdictionally barred. The Florida District Court

of Appeal recognized the “Catch 22” of the defendant’s situation and sought to determine “what due

process rights a convicted defendant has in post-conviction matters when he relies on his attorney

to pursue remedies designed to prove his innocence and to obtain his freedom and the attorney fails

to file within the limitation period.” Id., at 1193. The intermediate court concluded that “[i]f a

defendant can prove that he was improperly convicted, he should be set free. If he is denied the

opportunity to offer such proof because of the malpractice of his attorney, fundamental due process

requires that he have a remedy that will address his future incarceration . . . .” Id. at 1193-94. The

court ultimately held that “[i]f a prisoner is denied the opportunity to challenge his conviction under

an appropriate rule only because of the negligence of his attorney, then due process requires a belated

filing procedure similar to that allowed in belated appeals.” Id., at 1194. The Florida Supreme Court

affirmed the district court’s decision. Reiterating the intermediate court’s conclusion that due

process entitles a defendant to a hearing on a claim that post-conviction measures were frustrated

because of counsel’s misleading conduct, the supreme court held that if the defendant were to prevail

at the hearing, he or she would be authorized to belatedly file a post-conviction motion challenging

a conviction or sentence. Steele v. Kehoe, 747 So. 2d 931, 934 (Fla. 1999).8

In this case, the appellee’s trial attorney ostensibly continued to represent the appellee

through the filing of the untimely application for permission to appeal. The facts are disputed as to

whether counsel contacted his client after the decision by the Court of Criminal Appeals affirming

the appellee’s conviction. Although the attorney stated that he sent a letter to the appellee effectively

terminating his representation, he admitted that he did not file a timely Rule 14 motion requesting

permission from the court to withdraw. Williams contends, on the other hand, that his attorney never

contacted him. He alleges that he did not know of his attorney’s wish to terminate representation.

Moreover, Williams asserts that he did not know that his attorney was not going to pursue second-

tier appellate review, and he was never informed of his right to appeal pro se. Consequently, neither

a Rule 11 application nor a post-conviction petition was filed during the nine-month period between

January 1995 and October 1995. If Williams was under the impression that a Rule 11 application

was pending during this time, then he was precluded from acting pro se to pursue post-conviction

relief while presumably being represented by counsel. See Gibson v. State, 7 S.W.3d 47, 49 (Tenn.

Crim. App. 1998); see also Laney v. State, 826 S.W.2d 117, 118 (Tenn. 1992); State v. Burkhart, 541

S.W.2d 365 (Tenn. 1976).

8

The Florida Su preme Court also held that under the specific circumstance s of this case, the defendant must

present his cla im in a petition fo r writ of habea s corpus. See id.; see also Fla. R. Crim. P. 3.850(h), 9.140(j).

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The question, then, is whether the appellee in this case was, in fact, misled to believe that

counsel was continuing the appeals process, thereby requiring the tolling of the limitations period.

We emphasize that under no circumstance are we allowing a petitioner to file an untimely application

for permission to appeal with the belief that the one-year post-conviction statute would commence

upon this Court’s dismissal of that untimely application. As the dissent aptly states, “filing an

untimely application for permission to appeal to this Court does not constitute ‘an appeal’ as that

term is used in Tennessee Code Annotated § 40-30-202(a) and therefore does not delay

commencement of the one-year post-conviction statute of limitations.” Indeed, in this case, the

statute of limitations began to run on January 9, 1995, when the Court of Criminal Appeals affirmed

Williams’s conviction. The sole inquiry here, however, is whether this limitations period is tolled

because of due process concerns surrounding possible attorney misrepresentation. Further

development of the record is required to determine the precise circumstances surrounding the

appellee’s understanding of his relationship to counsel. The dissent argues that such inquiry is

unnecessary because the defendant had at least three months to pursue pro se post-conviction relief.

We decline to arbitrarily determine what length of time constitutes “enough time” for a defendant

to pursue post-conviction appellate review. Indeed, this is a question of fact for the trial court.

Section -202(a) gives defendants one year to file their petitions, and we are simply remanding the

case to the trial court for an evidentiary hearing to determine (1) whether due process tolled the

statute of limitations so as to give the appellee a reasonable opportunity after the expiration of the

limitations period to present his claim in a meaningful time and manner; and (2) if so, whether the

appellee’s filing of the post-conviction petition in October 1996 was within the reasonable

opportunity afforded by the due process tolling. To summarily terminate his claim without further

inquiry would be an “abridgement of both direct and post-conviction avenues of appeal–without

ever reaching the merits of the appell[ee’s] case–[and] would be patently unfair.” Crittenden v.

State, 978 S.W.2d 929 (Tenn. 1998).

CONCLUSION

In conclusion, the 1995 Post-Conviction Procedure Act clearly requires that post-conviction

claims be filed in a timely manner. Although we agree that Williams filed his petition beyond the

statutory deadline, due process considerations may have tolled the limitations period. Hence, the

statute cannot be strictly applied, without further inquiry, to deny him the reasonable opportunity to

seek post-conviction relief. Consequently, we affirm the Court of Criminal Appeals’s decision to

remand the case to the trial court for an evidentiary hearing to determine the circumstances

precluding the appellee from filing a timely application. If the evidence demonstrates that (1) the

statute should be tolled, and (2) that Williams did file his petition within the reasonable opportunity

afforded by the due process tolling, thereby allowing Williams to assert a timely request for post-

conviction relief, then the trial court has jurisdiction to determine whether Williams was deprived

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of his right to request pro se Supreme Court review under Rule 11 of the Tennessee Rules of

Appellate Procedure. See Tenn. Sup. Ct. R. 28, § 9(D).9

Costs of this appeal shall be taxed to the State of Tennessee.

______________________________

WILLIAM M. BARKER, JUSTICE

9

Subsequently, if the proof establishes that the appellee, through no fault of his own, was denied the

oppor tunity of second-tier appellate review, the court shall, pursuant to case law, grant him the opportunity to seek review

by this Court on a delayed ba sis. See Pinkston v. S tate, 668 S.W.2d 676, 677 (Tenn. Crim. App. 1984) (holding that

“unilateral termination of a direct appeal following first-tier review entitles a prospective appellant to relief in the form

of a delayed a ppeal”); State v. Brown, 653 S.W.2d 765 (Tenn. Crim. App. 19 83) (citing T ennessee S upreme C ourt Rule

14 as setting forth the “minimum requirements to assure a defendant’s right to due process” and an attorney’s failure to

comply with this rule entitles a defendant to a delayed ap peal); Moultrie v. State, 542 S.W.2d 835, 836-38 (Tenn. Crim.

App. 1976) (holding tha t the attorney, failing to file a petition for ce rtiorari desp ite the clear und erstanding w ith the

defendant that this action would be taken, unilaterally terminated the defendant’s appeal without notice and thereby

deprived the defendant in a criminal case of his right to effective assistance of counsel).

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