The opinion
01/31/2025
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 14, 2025
RICKIUS GRANT v. STATE OF TENNESSEE
Appeal from the Circuit Court for Madison County
No. C-23-336 Joseph T. Howell, Judge
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No. W2024-00837-CCA-R3-PC
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The Petitioner, Rickius Grant, appeals the Madison County Circuit Court’s denial of his
petition for post-conviction relief from his convictions for two counts of attempting to
traffic a person for a commercial sex act and resulting concurrent six-year sentences. On
appeal, he contends that the post-conviction court erred by finding that his petition was
barred by the statute of limitations because due process required that the statute of
limitations be tolled. Based upon our 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
JOHN W. CAMPBELL, SR., J., delivered the opinion of the court, in which J. ROSS DYER and
MATTHEW J. WILSON, JJ., joined.
M. Todd Ridley (on appeal), Assistant Public Defender – Appellate Division, Franklin,
Tennessee, and Parker O. Dixon (at hearing), Assistant District Public Defender, Jackson,
Tennessee, for the appellant, Rickius Grant.
Jonathan Skrmetti, Attorney General and Reporter; Caroline Weldon, Assistant Attorney
General; Jody S. Pickens, District Attorney General; Shaun A. Brown, Assistant District
Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
The record reflects that the Defendant was indicted for two counts of trafficking a
person for a commercial sex act, a Class B felony; two counts of patronizing prostitution,
a Class A misdemeanor; and two counts of solicitation of a minor, a Class A misdemeanor,
for offenses that occurred on August 25 and 26, 2021. On September 15, 2022, he pled
guilty to two counts of attempting to traffic a person for a commercial sex act, a Class C
felony, and the State dismissed the charges of patronizing prostitution and solicitation of a
minor. The transcript of the guilty plea hearing is not in the appellate record. However,
the written request for acceptance of guilty plea and petition to waive trial by jury provides
that the Defendant was to be sentenced as a Range I, standard offender and receive two,
concurrent six-year sentences. The trial court entered the six judgments of conviction on
October 25, 2022.
On December 13, 2023, the Petitioner filed a pro se petition for post-conviction
relief, claiming, in pertinent part, that trial counsel was ineffective by not providing him
with any evidence in his case, by not preparing any defense, and by forcing him to plead
guilty. The Petitioner delivered the pro se petition to prison authorities on December 1,
2023. See Tenn. R. Crim. P. 49(d) (providing that petitions are deemed timely if delivered
to the appropriate individual at the correctional facility within the time set for filing).
The post-conviction court appointed counsel and directed counsel to file an
amended petition, if necessary. On December 19, 2023, the State responded to the petition,
arguing that by either the date the Petitioner delivered the petition to prison authorities or
the date he actually filed the petition, the petition was filed outside the one-year statute of
limitations. On January 22, 2024, post-conviction counsel filed an amended petition,
asserting that, due to the ineffective assistance of trial counsel, the Petitioner unknowingly
and involuntarily pled guilty to attempting to traffic a person for a commercial sex act. The
Petitioner claimed that pursuant to this court court’s opinion in State v. Ashley, No. M2022-
01096-CCA-R3-CD, 2023 WL 7130271 (Tenn. Crim. App. Oct. 30, 2023), no perm. app.
filed, he only attempted to patronize prostitution, a Class B misdemeanor. The Petitioner
acknowledged in the amended petition that his pro se petition was untimely but contended
that the interests of justice necessitated tolling the statute of limitations on the basis of a
later-arising claim, mental incompetence, and attorney misconduct. The Petitioner
requested a hearing on the matter. On March 8, 2024, the State filed a second response,
arguing that in addition to the petition being time-barred, Ashley was inapplicable to the
Petitioner’s case because Ashley addressed convictions of solicitation of a minor pursuant
to Tennessee Code Annotated section 39-13-528, whereas the Petitioner pled guilty to
attempting to traffic a person for a commercial sex act pursuant to Tennessee Code
Annotated section 39-13-309.
The post-conviction court held a hearing on May 13, 2024. At the outset of the
hearing, the State requested that the post-conviction court dismiss the untimely petition.
Post-conviction counsel responded that the statute of limitations should be tolled because
the Petitioner filed his petition as quickly as possible after he learned about Ashley. The
post-conviction court concluded that the petition was untimely but allowed the Petitioner
to put on proof as to whether the statute of limitations should be tolled.
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The Petitioner testified that he requested permission to access the prison library and
that someone in the library helped him find the helpful caselaw. The Petitioner then filled
out his form petition for post-conviction relief but had to wait for someone to notarize the
form. The post-conviction court appointed counsel, and the Petitioner showed the Ashley
opinion to counsel.
The Petitioner testified that this court filed Ashley on October 30, 2023. He
acknowledged that he could not have known about this court’s decision in Ashley prior to
its being filed and said that he “immediately started the process” to file his post-conviction
petition. The Petitioner filed his petition as soon as possible on December 1, 2023.
The post-conviction court found that the petition was time-barred, stating, “I find
that there is no exception provided here today, and the statute of limitations is applicable.
As to the case law, I agree with the State. That is not applicable, and so it wouldn’t toll the
statute of limitations.”
ANALYSIS
On appeal, the Petitioner claims that the facts of his case are “virtually identical” to
the facts in Ashley; that Ashley “revealed to him an avenue for attacking his convictions”
because this court found in Ashley that the evidence was sufficient to support only
misdemeanor convictions; and that due process required tolling the statute of limitations
because he pursued his rights diligently after this court released Ashley. The State argues
that the post-conviction court properly dismissed the petition as time-barred. We agree
with the State.
Post-conviction relief is warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgment of a constitutional right. Tenn.
Code Ann. § 40-30-103. The burden in a post-conviction proceeding is on the petitioner
to prove the factual allegations in support of his or her grounds for relief by clear and
convincing evidence. Tenn. Code Ann. § 40-30-110(f); Dellinger v. State, 279 S.W.3d
282, 293-94 (Tenn. 2009). On appeal, we are bound by the post-conviction court’s findings
of fact unless we conclude that the evidence in the record preponderates against those
findings. Fields v. State, 40 S.W.3d 450, 456 (Tenn. 2001). A post-conviction court’s
conclusion of law, however, are subject to de novo review with no presumption of
correctness. Id. at 457.
Under the Post-Conviction Procedure Act, a claim 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, or consideration of the petition shall be barred.”
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Tenn. Code Ann. § 40-30-102(a). The post-conviction statute contains a specific anti-
tolling provision:
The statute of limitations shall not be tolled for any reason, including any
tolling or saving provision 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 the 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.
Id.
Subsection (b) of the statute sets forth three narrow exceptions under which an
untimely petition may be considered: (1) when the claim is based upon a final ruling of an
appellate court establishing a constitutional right that was not recognized at the time of trial
and which requires retrospective application; (2) when the claim is based upon new
scientific evidence establishing that the petitioner is innocent; and (3) when a previous
conviction that was not a guilty plea and which was used to enhance the petitioner’s
sentence has been held to be invalid. Id. at § 40-30-102(b). The Petitioner acknowledges
that none of those exceptions applies here.
Our supreme court has held that due process may require tolling the statute of
limitations. Whitehead v. State, 402 S.W.3d 615, 622-23 (Tenn. 2013). “[A] post-
conviction petitioner is entitled to due process tolling of the one-year statute of limitations
upon a showing (1) that he or she has been pursuing his or her rights diligently, and (2) that
some extraordinary circumstance stood in his or her way and prevented timely filing.”
Bush v. State, 428 S.W.3d 1, 22 (Tenn. 2014) (citing Whitehead, 402 S.W.3d at 631). In
explaining the first prong of the analysis, the court stated that “pursuing one’s rights
diligently ‘does not require a prisoner to undertake repeated exercises in futility or to
exhaust every imaginable option, but rather to make reasonable efforts [to pursue his or her
claim].’” Id. (quoting Whitehead, 402 S.W.3d at 631). “[T]he second prong is met when
the prisoner’s attorney of record abandons the prisoner or acts in a way directly adverse to
the prisoner’s interests, such as by actively lying or otherwise misleading the prisoner to
believe things about his or her case that are not true.” Whitehead, 402 S.W.3d at 631.
Moreover, 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)).
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Prior to Whitehead and Bush, the court had specifically identified the following
three circumstances in which due process requires tolling the 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 compliance with the statute of limitations; and
(3) when the petitioner’s attorney has committed misconduct. Sands v. State, 903 S.W.2d
297, 301 (Tenn. 1995). “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, 428 S.W.3d at 16 (citing Smith v. State, 357 S.W.3d 322, 355 (Tenn. 2011).
In Ashley, the defendant corresponded with an undercover female police officer via
text messages and arranged to meet her at a hotel to pay her for sex. 2023 WL 7130271,
at *2. Prior to the meeting, the officer told the defendant that she was sixteen years old.
Id. When the defendant entered the officer’s hotel room and handed her sixty dollars, the
police arrested him. Id. The defendant was indicted for patronizing prostitution from a
law enforcement officer posing as a minor pursuant to Tennessee Code Annotated section
39-13-514 and solicitation of a law enforcement officer posing as a minor to commit
patronizing prostitution pursuant to Tennessee Code Annotated section 39-13-528. See id.
at *1. At the time of the offenses, subsections (a)(2) and (b)(1) of Tennessee Code
Annotated section 39-13-514 provided that patronizing prostitution from a law
enforcement officer posing as a minor was a Class A misdemeanor, and subsection
(b)(3)(A) provided that patronizing prostitution from an actual minor was subject to
enhanced punishment as trafficking for commercial sex acts, a Class B felony, pursuant to
Tennessee Code Annotated section 39-13-309. See id. at *5. Subsection (d)(1) of
Tennessee Code Annotated section 39-13-514 provided that it was not a defense to a
violation of this section that the subject of the offense was a law enforcement officer. See
id.
After a bench trial, the trial court convicted the defendant of patronizing prostitution
from a minor and solicitation of a minor to commit patronizing prostitution, Class B and C
felonies, respectively. Id. at *3. In a motion for judgment of acquittal, the defendant
argued that the evidence showed he patronized prostitution from a law enforcement officer
posing as a minor and, therefore, only committed misdemeanors. Id. at *4. The trial court
reasoned that in light of subsection (d), the defendant was guilty of the felony offenses. Id.
at *6. On appeal, this court modified the defendant’s convictions to patronizing
prostitution from a law enforcement officer posing as a minor, a Class A misdemeanor,
and solicitation of a law enforcement officer posing as a minor to commit patronizing
prostitution, a Class B misdemeanor. Id. at *7.
The Petitioner misunderstands the holding in Ashley. This court did not create new
law in the Ashley opinion. This court determined that Tennessee Code section 39-13-514
provided clearly and unambiguously that the offenses of patronizing prostitution and
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patronizing prostitution from a law enforcement officer posing as a minor were Class A
misdemeanors whereas patronizing prostitution from an actual minor or a person with an
intellectual disability was subject to the enhanced punishment of Tennessee Code
Annotated section 39-13-309 and that the defenses listed in subsection (d) did not usurp
the plain language of the previous subsections. Id. at *6. The holding in Ashley was that
the trial court misinterpreted the plain language of the statute; the holding did not provide
a basis to justify tolling the statute of limitations in the present case.
The Petitioner failed to present evidence at the hearing that an extraordinary
circumstance preventing him from filing a timely petition, and he does not claim on appeal
that mental incompetence or attorney misconduct prevented him from filing his post-
conviction petition within the statute of limitations. Thus, the post-conviction court
properly found that the statute of limitations should not be tolled.
CONCLUSION
Upon our review, we affirm the judgment of the post-conviction court.
s/ John W. Campbell
JOHN W. CAMPBELL, SR., JUDGE
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