The opinion
01/08/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs July 29, 2020
TYWAN MONTREASE SYKES v. STATE OF TENNESSEE
Appeal from the Circuit Court for Blount County
No. C-26751 David R. Duggan, Judge
No. E2019-02024-CCA-R3-PC
The Petitioner, Tywan Montrease Sykes, appeals from the Blount County Circuit Court’s
order summarily dismissing his petition for post-conviction relief as untimely and as a
second impermissible petition. On appeal, the Petitioner argues that due process requires
tolling of the one-year limitations period, that he should have been given an evidentiary
hearing to present additional proof of tolling, and that his first petition was not resolved on
the merits. Following our review, we affirm the judgment of the post-conviction court
summarily dismissing the petition as untimely.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
D. KELLY THOMAS, JR., J., delivered the opinion of the court, in which JAMES CURWOOD
WITT, JR., and NORMA MCGEE OGLE, JJ., joined.
Cody F. Fox, Knoxville, Tennessee, for the appellant, Tywan Montrease Sykes.
Herbert H. Slatery III, Attorney General and Reporter; Jonathan H. Wardle, Assistant
Attorney General; Michael L. Flynn, District Attorney General; and Ashley J. Salem,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTUAL BACKGROUND
On April 20, 2012, the Petitioner pled guilty to aggravated statutory rape, for which
he received a six-year sentence. See Tenn. Code Ann. § 39-13-506. A judgment form to
that effect was filed on September 14, 2012, which reflected that sentence was imposed on
that same date.
Over seven years later, on June 14, 2019, the Petitioner, pro se, filed a pleading
titled “Motion for Ineffective Assistance of Counsel.” In the motion, the Petitioner claimed
that the April 20, 2012 plea was withdrawn and “a new deal was reached with the State[,]
one that specified that registering as a sex offender would not be required.” He further
indicated that “[i]mmediately following sentencing,” his attorney told him that he did not
have to register “because it was not a condition of the deal.” According to the Petitioner,
he was “unduly forced to register” “[s]hortly after” by Investigator Janice Postel of the
Blount County Sheriff’s Office.
In a prior proceeding,1 Investigator Postel testified that the Petitioner was placed on
the sex offender registry based on his conviction for aggravated statutory rape in 2012. See
State v. Tywan Montrease Sykes, No. E2017-02300-CCA-R3-CD, 2018 WL 4960226, at
*1 (Tenn. Crim. App. Oct. 15, 2018). Investigator Postel recalled that she conducted an
initial registration of the Petitioner on September 20, 2012, while the Petitioner was
incarcerated in the Blount County Jail. Id. She met with the Petitioner on that day and
provided him with information about the sex offender registry, including a copy of the
registry’s rules. Id. Investigator Postel met with the Petitioner again on October 9, 2015,
after his release from custody, and he completed the Tennessee Sexual Offender
Registration/Verification/Tracking form (“the sex offender registration form”), including
signing an acknowledgment that the requirements had been fully explained to him and that
he understood the requirements. Id. In addition, Investigator Postel testified that the
Petitioner met with another investigator from the Blount County Sheriff's Office at the end
of February 2016, and the Petitioner provided what he purported to be updated information
for the sex offender registry. Ultimately, the Petitioner was arrested on April 5, 2016, for
a violation of the sex offender registry. Id. at *2.
According to the Petitioner, when he first met with Investigator Postel in September
2012, she told him, though he objected, that he was required to register and to contact “his
attorney and the courts” if he had any issues with registering, so he complied. The
Petitioner attached a September 21, 2012 “General Request Form” to his post-conviction
motion, wherein he complained to the court clerk’s office about his requirement to register
as a sex offender. In the motion, the Petitioner asserted that he had been unable to reach
his attorney and requested that the deputy clerk look into his plea agreement. On October
11, 2012, the deputy clerk notated on the form,
I have spoken with your attorney and check[ed] your judgment and
plea and court notes[, none of which] show that you have to register as a sex
1
This court may take judicial notice its own records. See Harris v. State, 301 S.W.3d 141, 147 n.4 (Tenn.
2010) (citing State v. Lawson, 291 S.W.3d 864, 869-70 (Tenn. 2009)).
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offender. If you were ordered to register[,] it would be on your judgment and
it is not. I am sending you a copy of your plea and judgment.
The Petitioner also attached a letter from the circuit court clerk dated December 13,
2012. In the letter, the circuit court clerk stated,
I am sending copies of everything that is in files C-20776 and C-
2
20775. As far as C-18934 which is the stat[utory] rape case, I am sending a
copy of your plea and judgment. Registering as a sex offender is not listed
on either of these documents therefore, I have called the District Attorney’s
Office and they are checking to see if there is an error or not. If there is, they
will do an amended judgment and that will be sent to you.
According to the Petitioner, no amended judgment had ever been filed, so “no mistake was
made and [he] should never have had to register as a sex offender.”
The Petitioner averred that in early 2016, he was arrested and charged with rape.
According to the Petitioner, though that charge was subsequently dismissed, he was later
charged with a violation of the sexual offender registry. The Petitioner claimed that “[i]t
was at this time, while incarcerated for the violation, that [he] wrote the courts” again
asking for everything related to the aggravated statutory case, and he finally received the
documents that he attached to the motion.
The Petitioner further asserted that throughout all of this, he continued to try to reach
his attorney, to no avail. He also stated that he could not afford to hire a new lawyer.
Regarding timeliness of the motion, the Petitioner cited the “constant ebb and flow
battle for information since 2012” as the reason he did not file this pleading for over seven
years. He asserted that he “ha[d] been trying for nearly [seven] years to find answers,” and
he requested not to be held accountable for any applicable time constraints.
The Petitioner concluded that he had and continued “to suffer greatly for a
punishment which was not agreed upon in court.” He stated that “it [was] not [his] fault”
for “his attorney’s lack of availability and/or communication.”
Thereafter, the post-conviction court issued a preliminary order appointing counsel
to the Petitioner, finding that the Petitioner presented a colorable claim. Following the
appointment of counsel, an amended petition for post-conviction relief was filed on July
26, 2019. In the amended petition, the Petitioner asserted that due process required tolling
the one-year statute of limitations, that his plea was not knowingly and voluntarily entered
2
It is not clear what prior cases these two numbers reference.
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because he did not understand nor was he fully aware of the consequences of plea, that the
State breached a material portion of the plea agreement, and that he received ineffective
assistance of counsel due to trial counsel’s failure to communicate with him and address
the registration issue.
The Petitioner attached to the amended petition a letter he had received from trial
counsel that was dated June 21, 2019. In the letter, trial counsel indicated that he was
responding to the complaint the Petitioner had filed with the Board of Professional
Responsibility, as well as a letter sent to trial counsel’s office that had been received earlier
that same day. Trial counsel stated that while he could not ethically advise the Petitioner
on his current situation, it was trial counsel’s recollection that the Petitioner was not
required to register as a sex offender as part of his plea agreement. Included with the letter
were “plea negotiation logs” that, in trial counsel’s estimation, confirmed that the Petitioner
accepted a plea agreement that did not require his registration as a sex offender.
Relative to due process tolling the post-conviction statute of limitations, the
Petitioner cited Matthew B. Foley v. State, No. M2015-00311-CCA-R3-PC, 2016 WL
245857 (Tenn. Crim. App. Jan. 20, 2016), in support of his argument that his claim was
“later-arising” because he “was not aware that he would be required to register as a sex
offender and maintain that registration until he was subsequently arrested for a violation of
the sex offender registry.” According to the Petitioner, “the triggering point” for requiring
him “to pursue his rights diligently did not occur until his subsequent registry violation,”
and he claimed that he had thereafter pursued his rights diligently.
In addition, the Petitioner noted that he “repeatedly sent letters” to his attorney and
the court clerk’s office requesting information and guidance. The Petitioner averred that
in effect, his attorney “essentially abandoned him.” He again indicated that he did not
receive any of the responses from the court until after his arrest for the registry violation.
The Petitioner asserted that he suffered from “extraordinary circumstances” that were no
fault of his own, which stood in his way and prevented him from timely filing his petition.
The Petitioner concluded that the extraordinary circumstances, including his attorney’s
“misrepresenting his plea agreement, abandoning him, and correspondence never being
delivered” to him, required due process tolling of the limitations period.
A hearing took place on October 21, 2019. At the outset of the hearing, the post-
conviction court reviewed the procedural history of the Petitioner’s case. The post-
conviction court referenced a prior hearing, during which the parties discussed the statute
of limitations and any possible tolling based upon due process grounds. At the end of that
hearing, the post-conviction court wanted the parties to research whether the court was
required to give the Petitioner a hearing on his allegations for due process tolling or whether
it could dismiss the petition summarily as time-barred. The post-conviction court further
noted that at the prior hearing, the parties discussed whether this was the Petitioner’s
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second petition for post-conviction relief; the State argued at that time that this was in fact
the Petitioner’s second petition.
The post-conviction court indicated that it had reviewed the Petitioner’s case file in
the interim between the hearings and that the Petitioner had in fact filed a “court request”
earlier that year, on January 22, 2019, which the post-conviction court treated as a petition
for post-conviction relief and summarily dismissed for failure to state a colorable claim.3
The post-conviction court also provided more details about this prior court request or
petition for post-conviction relief and its ruling on the issues.4 According to the post-
conviction court, the Petitioner, after entering his April 20, 2012 plea, filed a motion to
withdraw his plea, but he later, on September 14, 2012, withdrew that motion to withdraw
his plea. The post-conviction court stated that the Petitioner did not allege ineffective
assistance of counsel in his petition or “any clear assertions that his plea was not knowing
or voluntary or any other basis for post-conviction relief,” and that even if his allegations
were viewed as one alleging an involuntary plea because he was not informed that he would
be placed on the sex offender registry and that he would have gone to trial if appropriately
advised, it was clear from the Petitioner’s “voluminous correspondence in the file that as
early as 2012, . . . he was aware that he would have to register as a sex offender despite his
allegation that his attorney had not so informed him.” The post-conviction court
specifically referenced the general request form dated September 21, 2012, and stated that
it had attached that form to the order. The post-conviction court then observed that the
Petitioner had waited seven years before filing the January 22, 2019 petition, and it ruled
that “[w]hile [the] Petitioner refer[red] to new evidence that should toll the statute of
limitations, it [was] not clear what new evidence the Petitioner” was claiming. The post-
conviction court determined that the Petitioner had “failed to state any grounds for tolling
of the statute of limitations which would necessitate a hearing.”
After reading the prior order, the post-conviction court cited to Tennessee Code
Annotated section 40-30-102(c), which states that in no event can more than one petition
be filed; that if a prior petition has been filed which was resolved on the merits, any second
or subsequent petition shall be summarily dismissed; and that a petitioner may move to
reopen a post-conviction proceeding that has been concluded, under the limited
circumstances set out in section 40-30-117. The post-conviction court stated that here,
“there may be a question about whether [its] earlier dismissal was . . . a dismissal on the
merits because [it was] dismissed . . . without a hearing.” However, the post-conviction
3
Though this prior petition or order of dismissal are not included in the appellate record, the post-conviction
court indicated that it had these documents before it at the hearing.
4
The post-conviction court seemingly read verbatim from its order of dismissal; though it is not entirely
clear what was included in the order.
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court also observed that it was “obvious” from the prior order that it had in fact considered
the merits of the Petitioner’s claims and that the Petitioner had now filed a second petition.
In response to the post-conviction court’s comments, post-conviction counsel noted
that at the previous hearing, the parties “went through and said that if a claim was colorable
with facts taken most favorably to the Petitioner, then an evidentiary hearing would
proceed,” and that then they “were told to research the issue of whether due process
required the tolling of the statute of limitations and to research that question.” Post-
conviction counsel observed that the statute of limitations for post-conviction relief cannot
deny the Petitioner a reasonable opportunity to assert his claim in a meaningful time and
manner and asked that the Petitioner be given an evidentiary hearing allowing him to
present evidence of due process tolling and have his claim heard on the merits. The post-
conviction court asked what evidence was to be presented as a basis for due process tolling
when the Petitioner had conceded that he was aware that he was placed on the sex offender
registry as early as September 21, 2012. Post-conviction counsel averred that the Petitioner
“believe[d] in his correspondence” that “[trial counsel] was still representing him and
carrying on with this procedure.” Post-conviction counsel further averred that the
Petitioner had been pursuing his rights diligently and that there had been extraordinary
circumstances that stood in the way of timely filing and cited the following evidence:
The evidence that we would put on for the [c]ourt . . . would be that
multiple correspondence that [the Petitioner] wrote various entities,
including [trial counsel], the Tennessee Board of Professional
Responsibility, the Blount County Circuit Court Clerk’s office trying to
figure out how he would go about receiving instruction on how to combat
that registration on the sex offender registry when he was not aware that he
would be required to register.
The State responded that the Petitioner had not presented a colorable claim, that the
one-year statute of limitations had long since passed, and that this was an impermissible
second petition for post-conviction relief. The State further argued that the petition could
be summarily dismissed on statute of limitations grounds and that a hearing was not
required.
In response to the State’s argument that this was a second petition for post-
conviction relief, the post-conviction court stated, “The only thing that cause[d it] any
pause at all [was] that what [the Petitioner previously] filed he did not style as a petition
for post-conviction relief. He filed a court request[, which the court] treated it as a petition
for post-conviction relief.” The post-conviction court then indicated that it would hear
from the Petitioner “as to what he says his grounds [were] for why the statute of limitations
should be tolled.”
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The Petitioner then testified. According to the Petitioner, he was offered two
different plea agreements for this charge—the first offer was twelve years with the
requirement that he register as a sex offender, and the other an offer of six years with twenty
years of community corrections but no requirement that he register as a sex offender. The
Petitioner said that he accepted the second offer and was sentenced on September 14, 2012.
Though the Petitioner believed he would not have to register, about “two days” to
“a week” after sentencing, Investigator Postel approached him and informed him that he
did indeed have to register. The Petitioner maintained that he “argued with her for a few
minutes,” but she told him he had to sign the document and to contact his attorney if he
had an issue to “work it back out with [c]ourt.” The Petitioner felt he had to sign the
document, so he did. Thereafter, he sent a request to the court inquiring about the matter,
but before he “could get a response back,” he was “sent . . . to prison.”
The Petitioner confirmed that his attorney told him that he did not have to register
as a sex offender under the plea agreement reached. The Petitioner indicated that his
attorney spoke with the prosecutor on the Petitioner’s case and that his understanding was
that they agreed he would not have to register.
The State lodged an objection that the Petitioner could not testify to what the
understanding was between his attorney and the prosecutor, but only to what his
understanding was. The post-conviction court commented that it was the Petitioner’s
understanding that “matter[ed].” Post-conviction counsel then said, “And, Your Honor, I
know since we are at the evidentiary hearing we have no right to subpoena those witnesses
to even be here to present their side.” The post-conviction court retorted that it “had told
[them] to be here today.” And, post-conviction counsel replied, “Well, not for an
evidentiary hearing, Your Honor. Because that will be ordered by the [c]ourt to say that
there is an evidentiary hearing. So we have no subpoena power until that is . . . . ” The
post-conviction court then inquired why those witnesses were needed for the purpose of
establishing extraordinary circumstances that prevented the Petitioner from timely filing
his petition and averred that witnesses’ relevance was related to the underlying issues
attacking the plea. Post-conviction counsel stated his agreement with the post-conviction
court but noted that he was responding to the State’s objection.
The post-conviction court indicated that for purposes of the hearing it would assume
as true the Petitioner’s claim that the Petitioner was told he would not have to register as a
sex offender as part of his plea deal. The post-conviction court further commented,
Now, you can ask this man what was represented to him that
constitutes a misrepresentation without having any of the attorneys here. Or
you can ask him what the extraordinary circumstances are that prevented him
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from filing for six and a half years possibly, but certainly seven years if I just
look at the most recently filed.
Questioning of the Petitioner resumed.
The Petitioner was asked what steps he took to pursue his rights once he was
informed in 2012 that he was required to register as a sex offender; the Petitioner replied
that he tried to contact his attorney, to no avail. He also asserted that in 2013, he wrote the
Board of Professional Responsibility about his attorney’s failure to communicate with him,
as well as writing letters to the trial judge and court clerk’s office. The Petitioner averred
that he wrote “multiple letters” to his attorney and even had his fiancée try to get a hold of
his lawyer, but efforts were unsuccessful.
On cross-examination, the Petitioner acknowledged that he did indeed register as a
sex offender with Investigator Postel in September 2012 and that following his release from
prison in 2015, he had been monitored. According to the Petitioner, after being released
from prison for about four months, he was charged in 2016 with violating the requirements
of the sex offender registry. The Petitioner confirmed that he was represented by an
attorney in that case and took the case to a jury trial before being found guilty in August
2017.5 See Sykes, 2018 WL 4960226. Though the Petitioner asserted that he apprised his
attorney in that case of the situation with the registry, he admitted that he did not seek post-
conviction relief at that time.
Thereafter, the Petitioner acknowledged that he filed his first post-conviction
petition in January 2019, claiming that he did not know he was required to register under
the terms of his plea agreement and that he had been diligently trying to contact the
appropriate parties, although no one would help him. The Petitioner acknowledged the
court dismissed that petition and that he was making the same arguments in the present
petition.
The post-conviction court first noted that there was voluminous correspondence in
the Petitioner’s case from over the years and then inquired of the Petitioner if trial counsel
had ever “made any misrepresentations to [him] about filing a post-conviction relief
petition,” to which the Petitioner responded that trial counsel never replied to him at all
until recently. The Petitioner then referenced the letter from trial counsel that was attached
to the amended petition.
Post-conviction counsel was asked if he had “any other evidentiary proof or even
any argument as to what would rise to the level of extraordinary circumstances to toll the
5
Though the transcript from the post-conviction hearing indicates that the Petitioner was found guilty in
October, our review of those records reveals that the Petitioner was convicted in August.
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statute of limitations?” Post-conviction counsel said that “the only evidence the Petitioner
would contemplate” offering was to be able to subpoena trial counsel and present him as a
witness, though post-conviction counsel agreed “that most of the correspondence kind of
discusse[d] what he would even be able to testify to this [c]ourt.” Post-conviction counsel
stated that “[t]he only other thing” he had to offer was some case law on “the question that
was presented” to the parties at the last hearing.
The post-conviction court remarked that based upon its review of the case law, due
process tolling was found in cases where there had been attorney misrepresentations, but
that there had been no allegation by the Petitioner that trial counsel “misrepresented
anything to him about the post-conviction process,” only that trial counsel did not
communicate with him. The post-conviction court also noted that whether trial counsel
provided ineffective assistance of counsel to the Petitioner involved the underlying merits
of the Petitioner’s claim, not whether due process should toll the statute of limitations.
Post-conviction counsel agreed with the post-conviction court, stating that he had “found
no case law that expressly” said that the court must hold an evidentiary hearing or could
not summarily dismiss a petition as untimely simply because due process tolling had been
alleged in the petition. Post-conviction counsel averred that the case law established “that
the necessity for an evidentiary hearing must be determined by viewing as true all well-
pleaded allegations of fact and that the Tennessee Post-Conviction Procedure Act
contemplates an evidentiary hearing except in those cases where a competently drafted
petition conclusively shows that the Petitioner is entitled to no relief.”
Post-conviction counsel further stated that the case law distinguished between
attorney misrepresentation and attorney negligence, acknowledged that “due process
tolling require[d] attorney misrepresentation and not just negligence,” and then averred that
trial counsel’s representation in this case “may have [risen] to misrepresentation.” The
post-conviction court replied that possibly was true “with respect to whether or not [the
Petitioner] had to register with the sex offender registry” but not with regard to “the post-
conviction process” because there had not been any representation in that regard at all from
trial counsel. Post-conviction counsel acknowledged that there was no evidence that
anyone misrepresented to the Petitioner the deadline for seeking post-conviction relief, but
noted that trial counsel “simply just abandoned [the] Petitioner and there was no
correspondence or reply to [the Petitioner’s] correspondence.”
The post-conviction court then dismissed the petition as time-barred. Relative to
the statute of limitations, the post-conviction court observed that it had not found any case
law requiring an evidentiary hearing merely because due process tolling had been alleged,
Relative to post-conviction counsel’s objecting that he was not given the opportunity to
subpoena trial counsel, the post-conviction court commented that the Petitioner had been
afforded “an evidentiary hearing today to see what [he] ha[d] to say about what the
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extraordinary circumstances would be that prohibited him from” timely filing. The post-
conviction court further noted that the Petitioner conceded that there was no
communication by trial counsel regarding the post-conviction process, so therefore there
was no misrepresentation by trial counsel.
Next, the post-conviction court dismissed the petition as an improper second
petition for post-conviction relief. Relative to this ground, the post-conviction court
remarked that the Petitioner had filed a previous court request in January of 2019, which
the post-conviction court treated as a petition for post-conviction relief, and that it had
addressed the Petitioner’s claim on the merits in its order dismissing the petition, therein
finding no colorable claim and observing that the Petitioner knew as early as September
2012 that he would be required to register as a sex offender. The post-conviction court
further stated that the Petitioner could have appealed that order of dismissal or filed a
motion to reopen his prior petition, but he did not. Following entry of an order of dismissal,
the Petitioner timely appealed.
ANALYSIS
On appeal, the Petitioner argues that due process requires tolling of the one-year
limitations period, that he should have been given an evidentiary hearing to present
additional proof of tolling, and that his first petition was not resolved on the merits. The
State responds that the post-conviction court properly dismissed the petition summarily.
Post-conviction relief is available when a “conviction or sentence is void or voidable
because of the abridgment of any right guaranteed by the Constitution of Tennessee or the
Constitution of the United States.” Tenn. Code Ann. § 40-30-103. 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). Here, it was undisputed that the one-year statute of limitations expired years before
the petition was filed.
“[T]he right to file a petition for post-conviction relief . . . shall be extinguished
upon the expiration of the limitations period.” Tenn. Code Ann. § 40-30-102(a). “If it
plainly appears from the face of the petition, any annexed exhibits or the prior proceedings
in the case that the petition was not filed . . . within the time set forth in the statute of
limitations, . . . the judge shall enter an order dismissing the petition.” Tenn. Code Ann. §
40-30-106(b). The Post-Conviction Procedure Act is explicit that the one-year statute of
limitations “shall not be tolled for any reasons, including any tolling or saving provision
otherwise available at law or equity.” Tenn. Code Ann. § 40-30-102(a).
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The Post-Conviction Procedure Act provides for only three narrow factual
circumstances in which the statute of limitations may be tolled. See Tenn. Code Ann. §
40-30-102(b). The Petitioner concedes, and we agree, that the Petitioner does not meet any
of the three narrow circumstances enumerated in statutory law.
However, because “the General Assembly may not enact laws that conflict with the
Constitution of Tennessee or the Constitution of the United States,” our supreme court has
recognized other exceptions that can toll the running of the one-year statute of limitations.
Whitehead v. State, 402 S.W.3d 615, 622-23 (Tenn. 2013). “Both [our supreme court] and
the United States Supreme Court have recognized that fundamental due process requires
that, once the legislature provides prisoners with a method for obtaining post-conviction
relief, prisoners must be afforded an opportunity to seek this relief ‘at a meaningful time
and in a meaningful manner.’” Id. (quoting Burford v. State, 845 S.W.2d 204, 208 (Tenn.
1992)).
In Whitehead, our supreme court laid out three situations in which due process could
toll of the statute of limitations. 402 S.W.3d at 623-624. The first of the three
circumstances involves claims for relief that arise after the statute of limitations has
expired. Id. at 623. The second due process basis for tolling the statute of limitations
involves prisoners whose mental incompetence prevents them from complying with the
statute’s deadline. Id. at 624. The third exception occurs when attorney misconduct or
abandonment prevented the petitioner from filing a post-conviction petition within the
statute of limitations. Id. To succeed upon such a claim, a petitioner must show “(1) that
he or she had been pursuing his or her rights diligently, and (2) that some extraordinary
circumstance stood in his or her way and prevented timely filing.” Id. at 631 (citing
Holland v. Florida, 560 U.S. 631, 648-49 (2010)). Our supreme court has held that the
Whitehead-Holland test “applies to all due process tolling claims, not just those that
concern alleged attorney misconduct[,]” and has utilized that standard in analyzing a claim
for relief that arose after the statute of limitations had expired. Bush v. State, 428 S.W.3d
1, 21-23 (Tenn. 2014).
The standard for 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].” Whitehead, 402 S.W.3d at 631
(quoting Aron v. United States, 291 F.3d 708, 712 (11th Cir. 2002)) (internal quotation
marks omitted) (brackets in original). However, equitable tolling of the statute is a remedy
that should be utilized sparingly in “those rare instances where—due to circumstances
external to the party’s own conduct—it would be unconscionable to enforce the limitations
period and gross injustice would result.” Id. at 631-32 (quoting Harris v. Hutchinson, 209
F.3d 325, 330 (4th Cir. 2000)). As a result, “the threshold necessary to trigger equitable
tolling is very high, lest the exceptions swallow the rule.” Id. at 632 (citations omitted).
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The petitioner bears the burden of pleading and proving that the statute of limitations
should be tolled on due process grounds. See Tenn. Sup. Ct. R. 28, § 5(F)(4) (“A petition
may be dismissed without a hearing if it . . . does not state the reasons that the claim is not
barred by the statute of limitations.”); see also State v. Nix, 40 S.W.3d 459, 464-65 (Tenn.
2001). “Issues regarding whether due process require[s] the tolling of the post-conviction
statute of limitations are mixed questions of law and fact and are, therefore, subject to de
novo review.” Whitehead, 402 S.W.3d at 621.
On appeal, the Petitioner again cites Foley, 2016 WL 245857, as support for his
claim that due process tolling is required here. In Foley, the petitioner was specifically
advised that he was not required to register at the time of his February 28, 2002 guilty plea
to facilitation of especially aggravated kidnapping. 2016 WL 245857, at *1-2. Prior to the
petitioner’s release from prison in the fall of 2011, the petitioner was erroneously informed
that he was currently obligated to register as a sex offender. Id. at *2. Though the petitioner
was subsequently charged with a violation of the sex offender registry, he hired an attorney
and successfully defended that charge, which was dismissed in April 2012. Id. Thereafter,
on July 1, 2012, the Sex Offender Registration Act (“the Act”) was subsequently amended
to require registration for the petitioner’s offense. Id. On June 3, 2014, and again on
August 6, 2014, the petitioner was indicted on two charges of the violating the registry. Id.
at *3. Finally, in October 2014, the petitioner entered “no contest” pleas to two charges of
violating the registry. Id. at *2.
The Foley petitioner, on January 7, 2015, filed an untimely petition for post-
conviction relief, alleging that the statute of limitations should be tolled because he did not
learn until well after its expiration that the State was seeking to enforce the provisions of
the registry against him, contrary to the terms of his plea agreement. 2016 WL 245857, at
*2-3. The petitioner therein alleged that the State breached a material term of his plea
agreement and that the application of the sex offender registry to him violated his right to
due process. Id. at *3. Thereafter, the post-conviction court dismissed the petition as time-
barred, finding no basis for due process tolling. Id. at *3-4.
On appeal, this court held that the Foley petitioner’s claim for relief did not arise
until “the State sought to apply the [A]ct’s provisions to the Petitioner . . . possibly
breach[ing] a ‘material term’ of the plea agreement [and] triggering the Petitioner’s
responsibility to pursue his rights diligently.” Foley, 2016 WL 245857, at *7. Based on
the allegations in the petition, this court concluded that the petitioner’s claim was later-
arising and that the petitioner had been diligently pursuing his rights by seeking dismissal
of the first violation in April 2012 and by filing his post-conviction petition within seven
months of his 2014 indictments. Id. at *8. In so holding, this court stated the following:
We find this to be one of those rare unconscionable cases that cries
out for due process tolling. However, we note that our determination that the
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[p]etitioner is entitled to a hearing is not to be read as indicative of the merit
of the [p]etitioner’s claims, which will be analyzed by the post-conviction
court. We also guide the lower court to make the appropriate findings in
ruling on the petition. Accordingly, this case is reversed, and the [p]etitioner
must receive an evidentiary hearing in which to present proof as to his post-
conviction grounds for relief.
Id. (internal citations omitted).
Relying on Foley, the Petitioner asserts that his claim is “later-arising” as he “was
not aware that he would be required to register as a sex offender and maintain that
registration until he was subsequently arrested for a violation of the sex offender registry”
and that the “triggering point” for him to pursue his rights diligently “did not occur until
his subsequent registry violation.” According to the Petitioner, he has diligently pursued
his rights since that time by repeatedly sending letters to trial counsel and the court clerk’s
office “requesting his case information and guidance.” The Petitioner continues, “[Trial
counsel] never contacted [him] and essentially abandoned him. Although the [court clerk’s
office] initially responded to [him], the responses were simply placed in his file and never
actually delivered or given to [him] until he requested his entire case file after a subsequent
arrest for a registry violation.”
The circumstances present in Foley are not present in this case even if we assume
as true, as did the post-conviction court, that the Petitioner was not advised about the
registry during the plea agreement process. First, this case does not involve changes to the
Act; the Petitioner’s offense was included as a required offense for registration at the time
of the Petitioner’s plea. See Tenn. Code Ann. § 40-39-202(20)(xvi). The Petitioner
acknowledged that Investigator Postel required him to register in September 2012; he even
sent a general request form to the court clerk’s office indicating such. The Petitioner further
acknowledged that following his release from prison in 2015, he had been monitored under
the sex offender registry and that he was charged in 2016 with violating the requirements
of the registry. Moreover, the Petitioner was represented by an attorney in the violation
case and took the case to a jury trial before being found guilty in August 2017. Though
the Petitioner asserted that he apprised his attorney in that case of the situation with the
registry, he admitted that he did not seek post-conviction relief at that time.
In addition to being convicted of violating the registry in August 2017, the Petitioner
admitted that he received all the documentation from his file from the court clerk’s office
in 2016. According to the Petitioner’s own account, he had not heard from trial counsel in
almost four years at that time. Even if we were to use any of the various dates offered by
the Petitioner and not the September 2012 date used by the post-conviction court, the
Petitioner’s petition would still be time-barred. The Petitioner made no allegation that any
misrepresentations by trial counsel led him to forego filing his post-conviction petition
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until almost seven years after the statute of limitations expired, his allegations concerning
only the lack of communication. Though the Petitioner alleged that he continued to try to
contact trial counsel and the court clerk’s office, he entered no evidence of such other than
his own testimony. The Petitioner did not file his first pro se petition for post-conviction
relief until January 22, 2019, and this present petition was not filed until June of that year.
This court “has consistently held that a petitioner’s personal ignorance of post-conviction
procedures, even when alleged to stem from an attorney’s negligent failure to render advice
to the petitioner, does not toll the running of the statute of limitations.” Jarvis Taylor v.
State, No. W2014-00683-CCA-R3-PC, 2014 WL 6491076, at *3 (Tenn. Crim. App. Nov.
20, 2014) (internal quotation marks and citation omitted); see State v. Phillips, 904 S.W.2d
123, 124 (Tenn. Crim. App. 1995); Frederick D. Deberry v. State, No. W2015-00951-
CCA-R3-PC, 2016 WL 369390, at *4 (Tenn. Crim. App. Jan. 29, 2016). Contrary to the
Petitioner’s assertions, we cannot say that he has diligently pursed his rights. This is not
one of those rare instances where—due to circumstances external to the party’s own
conduct—it would be unconscionable to enforce the limitations period and gross injustice
would result. Based upon the foregoing, we conclude that the post-conviction court
correctly determined that the Petitioner failed to establish a basis for tolling the statute of
limitations.
The Petitioner also argues that he should have been allowed another evidentiary
hearing allowing him to subpoena witnesses and present evidence regarding due process
tolling. However, the Petitioner offers no inclination of who these witnesses are or what
this further evidence would be and how it would inure to his benefit. At the post-conviction
hearing, the only witness that post-conviction counsel stated that he wished to call was trial
counsel, but post-conviction counsel also conceded at the hearing that trial counsel would
not be able to offer much more information than was already contained in the file. Finally,
the post-conviction court allowed the Petitioner to testify and for counsel to make
argument. Because the Petitioner failed to meet his burden of pleading and proving that
the statute of limitations should be tolled on due process grounds, he was not entitled to a
further evidentiary hearing. See Tenn. Sup. Ct. R. 28, § 5(F)(4); Nix, 40 S.W.3d at 464-
65. Accordingly, summary dismissal was proper.
The Petitioner also argues that the post-conviction court erred by dismissing his
petition as an impermissible second petition for relief. See Tenn. Code Ann. § 40-30-
102(c). Initially, we agree with the State that it is not necessary to reach this issue since
the June 2019 petition is untimely and due process does not require tolling. Moreover, we
agree with the State that the appellate record is inadequate for our review. Neither the
January 2019 court request, nor the court’s order dismissing that request are included in
the record on appeal. It is an appellant’s responsibility to prepare an adequate record for
this court to address the issues. State v. Ballard, 855 S.W.2d 557, 560 (Tenn. 1993).
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CONCLUSION
In accordance with the foregoing, the judgment of the post-conviction court
summarily dismissing the petition is affirmed.
D. KELLY THOMAS, JR., JUDGE
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