The opinion
10/22/2020
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs May 19, 2020
ANTONIO ROMERO ROBERTS v. STATE OF TENNESSEE
Appeal from the Criminal Court for Hamilton County
No. 308774 Barry A. Steelman, Judge
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No. E2019-01975-CCA-R3-PC
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Pro se petitioner, Antonio Romero Roberts, appeals the summary dismissal of his petition
for post-conviction relief by the Criminal Court for Hamilton County. Upon our review,
we affirm.
Tenn. R. App. P. 3, Appeal as of Right; Judgment of the Criminal Court Affirmed
CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and J. ROSS DYER, JJ., joined.
Antonio Romero Roberts, Chattanooga, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Assistant
Attorney General; and Neal Pinkston, District Attorney General, for the Appellee, State of
Tennessee.
OPINION
Based on the limited record before us, it appears that on July 15, 2015, the Petitioner
pleaded guilty to the offense of rape “pursuant to a plea agreement [which] provide[d] for
a release eligibility of eighty percent (80%) . . . to the department of correction and, after
service of eleven (11) months, twenty-nine (29) days in the community corrections,
probation for eight (8) years, with a release eligibility of thirty percent (30%).” On
September 2, 2015, the judgment was corrected to reflect “a release eligibility of one
hundred percent (100%) pursuant to [Tennessee Code Annotated Section] 40-35-501(i).”
The next events to occur as reflected in the order of the post-conviction court involve
correspondence between the Petitioner and the trial court and the Petitioner and the trial
court clerk. On February 2, 2016, the Petitioner wrote to the trial court and requested
“clarification regarding his ongoing confinement, ‘the workhouse release sheet . . .
show[ing] [06/24/2016]’, ‘over 100%.’”(brackets contained in original). On February 5,
2016, the trial court clerk sent a letter to the Petitioner informing him that “the judgment
‘was corrected to reflect your sentence to be served at 100%[,]’” and provided him with a
copy of the corrected judgment. On May 28, 2017, the Petitioner sent a letter to the trial
court clerk requesting “copies of ‘any revocation orders or judgments (amended/original)’
pertaining to the ‘sentence’ of 17 May 2017.” (parenthetical contained in original). While
the relevance of the reference to “revocation orders” to the instant case is unclear on this
record, the order of the post-conviction court further noted that since the entry of the
September 2015 corrected judgment, there had been “three revocation hearings and a fourth
revocation hearing [was] set for [October 17, 2019].”
On September 18, 2019, the Petitioner filed the instant petition for post-conviction
relief. As we understand his claims, the Petitioner contends (1) that his guilty plea was
unknowingly and involuntarily entered because the change in release eligibility from thirty
percent to one-hundred percent materially altered the terms of his plea agreement; (2) that
trial counsel was ineffective in signing the corrected judgment and allowing the
punishment to change from thirty to one-hundred percent release eligibility; (3) that
correction of the judgment warranted due process tolling of the post-conviction one-year
statute of limitation; and (4) that discovery of the “undisclosed sentence occurred in the
past year as a result of writing the Hamilton County Court Clerk and is retroactive for the
purpose of tolling the post-conviction statute of limitation.” The Petitioner specifically
claimed that on August 5, 2019, he requested the judgment, amended judgment, and plea
agreement from the trial court clerk, and that he did not receive this information until
August 13, 2019.
On October 9, 2019, by written order, the post-conviction court summarily
dismissed the petition, finding that the Petitioner’s lack of diligence in pursuing his claim
precluded him from due process tolling. The post-conviction court relied on the
correspondence between the Petitioner and the trial court clerk to establish the Petitioner’s
awareness of the change in his release eligibility as early as February 2016. Because the
Petitioner waited over three years to pursue his claim, the post-conviction court denied due
process tolling and summarily dismissed the petition as untimely. The Petitioner filed a
timely notice of appeal on November 6, 2019.
ANALYSIS
On appeal, the Petitioner contends the post-conviction court erred in summarily
dismissing his petition for post-conviction relief. He argues the one-year statute of
limitations should be tolled because he was unaware of the right to file a petition for post-
conviction relief or of the statute of limitations by which to file such a petition; therefore,
his untimely filing was through no fault of his own. The State responds that the post-
conviction court properly denied the petition because the Petitioner failed to prove any
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statutory or due process grounds upon which to justify the tolling of the statute of
limitations. Upon review, we agree with the State.
Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction or sentence is void or voidable because of an abridgement of a constitutional
right. Tenn. Code Ann. § 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 . . . 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 the trial court must summarily
dismiss the petition. Id. § 40-30-106(b). In addition, “[i]f, on reviewing the petition, the
response, files, and records, the court determines conclusively that the petitioner is entitled
to no relief, the court shall dismiss the petition.” Id. § 40-30-109(a) (2006).
In this case, the Petitioner was required to file his post-conviction petition by
September 2, 2016. He did not file the petition until September 18, 2019, some three years
after the one-year statute of limitation expired. While Tennessee Code Annotated section
40-30-102(b) provides three exceptions to the statute of limitations for petitions for post-
conviction relief, none are applicable to this case. Instead, the Petitioner relies on due
process considerations to toll the statute of limitations for post-conviction relief and claims
his ignorance of post-conviction proceedings and his limited access to legal research
materials deprived him the opportunity to have his case heard “due to ‘circumstances
external to [his] own conduct.’” Whitehead, 402 S.W.3d at 631-32.
A post-conviction petitioner is entitled to due process tolling of the 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). To pursue 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).
However, due process 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. (quoting Whitehead, 402 S.W.3d at 631-32). “The question of whether the post-
conviction statute of limitations should be tolled is a mixed question of law and fact that is
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. . . subject to de novo review.” Id. at 16 (citing Smith v. State, 357 S.W.3d 322, 355 (Tenn.
2011)); Whitehead, 402 S.W.3d at 621.
As evidenced by the September 2015 corrected judgment and the correspondence
from the trial court clerk, the mandatory 100% service for the offense of rape was omitted
from the original judgment form. Tenn. Code Ann. §§ 39-13-503, 40-35-501(i)(1) (“There
shall be no release eligibility for a person committing an offense, on or after July 1, 1995,
that is enumerated in subdivision (i)(2). The person shall serve one hundred percent
(100%) of the sentence imposed by the court less sentence credits earned and retained.
However, no sentence reduction credits authorized by § 41-21-236 or any other provision
of law, shall operate to reduce the sentence imposed by the court by more than fifteen
percent (15%).”). As grounds for tolling, the Petitioner claims he did not know of the
100% service provision until he received the corrected judgment and other relevant
documents from the trial court clerk in August 2019. However, the post-conviction court
determined that the Petitioner became aware of the corrected judgment including the
statutorily mandated 100% service in February 2016. The Petitioner did not petition for
post-conviction relief until three years later in September 2019. Under these facts, the
Petitioner cannot be said to have diligently pursued his rights as required under the first
prong of the Whitehead test. Additionally, to the extent that the Petitioner claims that he
was unaware of the post-conviction limitations period, “this Court has long held that
ignorance of the existence of a claim that existed when the statute of limitations began to
run does not warrant due process tolling.” See Brown v. State, 928 S.W.2d 453, 456
(Tenn. Crim. App.1996). The Petitioner has also failed to assert what, if any, extraordinary
circumstance prevented him from timely filing his petition for post-conviction relief.
Accordingly, due process tolling of the statute of limitations was not warranted, and
summary dismissal was proper. The Petitioner is not entitled to relief.
CONCLUSION
We affirm the judgment of the post-conviction court.
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CAMILLE R. MCMULLEN, JUDGE
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