Session October 7, 2014
Direct Appeal from the Criminal Court for Shelby County No. 03-08239 James Lammey, Jr., Judge
Lance R. Chism, Memphis, Tennessee, for the appellant, Don Sanders.
Robert E. Cooper, Jr., Attorney General and Reporter; Caitlin Smith, Assistant Attorney General; Amy P. Weirich, District Attorney General; and Glen Baity, Assistant District Attorney General, for the appellee, State of Tennessee.
Norma McGee Ogle, J., delivered the opinion of the Court, in which Camille R. McMullen and Timothy L. Easter, JJ., joined.
NORMA MCGEE OGLE, JUDGE
I. Factual Background
This case relates to the Petitioner's first degree premeditated murder conviction for stabbing and burning his girlfriend, Marilyn Hughes, in March 2003. The Petitioner appealed his conviction to this court, arguing that the evidence failed to show that he possessed the mental capacity to premeditate the killing, and this court affirmed his conviction on April 22, 2008. See State v. Don Sanders, No. W2006-02592-CCA-R3-CD, 2008Tenn. Crim. App. LEXIS 311, at *1 (Jackson, Apr. 22, 2008). The Petitioner did not file an application for permission to appeal to our supreme court.
On January 24, 2011, the Petitioner filed a petition for post-conviction relief, alleging that he received the ineffective assistance of counsel at trial and that he suffered from severe mental illness. In the petition, the Petitioner claimed that he mailed a timely petition for post-conviction relief on or about January 6, 2009, and that he did not learn until September 2010 that the petition was never filed. In support of his claim, he attached a copy of the January 2009 petition. In the alternative, the Petitioner alleged that the post-conviction court should toll the statute of limitations for filing the petition because he had been declared incompetent in Davidson County's Seventh Circuit Court, Probate Division. The Petitioner attached a copy of a June 2008 order from that court, finding that he was disabled within the meaning of Tennessee Code Annotated section 34-1-101 and appointing a conservator to give consent for his medical treatment. The State responded that the post-conviction court should dismiss the January 2011 petition as untimely.
The post-conviction court appointed counsel and held evidentiary hearings on the timeliness of the petition in 2012 and 2013. At the first hearing in May 2012, Anthony Clark testified that he had been housed at the Lois Deberry Special Needs Facility in Nashville since 2005 and was one of two inmate legal clerks. He said the clerks were responsible for processing inmates' requests for legal addresses, case citations, or help with power-of-attorney documents. For post-conviction cases, the clerks provided inmates with "post-convictions or 1983 forms for civil lawsuits." Clerks kept a journal in which they recorded the help they provided to inmates. Clark said he provided help to the Petitioner and "logged all interactions."
Clark testified that his first interaction with the Petitioner occurred on March 7, 2007, when the Petitioner asked for information about the Tennessee Department of Correction policy regarding inmate rules. Two days later, the Petitioner requested to meet with Clark about filing a civil lawsuit. On April 21, 2007, Clark met with the Petitioner and gave him a grievance form. On June 5, 2008, Clark met with the Petitioner for a second time. The meeting lasted ten to fifteen minutes and occurred in the maximum security unit where the Petitioner was housed. Clark asked the Petitioner some questions, advised him that he had only one or two weeks to file his petition for post-conviction relief from his first degree murder conviction, and gave him a post-conviction packet. Clark said the Petitioner never showed him this court's opinion affirming the Petitioner's conviction. Therefore, Clark was unaware that this court had filed its opinion on April 22, 2008. Clark acknowledged that the Petitioner had another nine months to file the petition for post-conviction relief and said that he did not know why he told the Petitioner that the Petitioner had only one or two weeks. Clark said that during the meeting, the Petitioner "seemed like he was on medication."
Clark testified that the post-conviction packet included instructions on how to file the petition for post-conviction relief. He acknowledged that the instructions did not include an address for where to mail the petition. Instead, the instructions stated that the petition "must be mailed to the appropriate clerk of court." Clark said that legal clerks assumed inmates knew they had to mail the petitions "back to the court they came from" and that he would not have told the Petitioner to mail the petition to the Tennessee Supreme Court. He stated, "I always tell them, you will get a receipt from the court once you file it. But to get anything back as far as a hearing date, it could be a year or more."
Clark testified that on June 10, 2008, he responded to a request by the Petitioner for case law and that he sent the cases to the Petitioner through prison mail. On December 23, 2008, the Petitioner sent Clark "a partially filled out post-conviction packet." The Petitioner did not include a request with the packet, so Clark "wrote a reply back and told him that we didn't know what he needed." On January 8, 2009, Clark sent the Petitioner "a USC form, 1983, which is a lawsuit form." Clark said that on January 23, 2009, he received a request from the Petitioner "for the address to the Supreme Court" and that he sent the address for the Tennessee Supreme Court to the Petitioner. Clark's last interaction with the Petitioner occurred on October 22, 2010, when the Petitioner requested another post-conviction packet. Clark sent the packet to him.
On cross-examination, Clark testified that legal clerks were not allowed to mail documents for inmates and that inmates had to mail their own legal papers. On redirect examination, Clark acknowledged that the Petitioner must have told him something on June 5, 2008, that caused him to think the Petitioner had only two weeks in which to file the petition for post-conviction relief. He said he did not know how inmates "on a max unit" mailed documents from the prison. Upon being questioned by the post-conviction court, Clark testified that the Petitioner "seemed a little confused" during their June 5 meeting but that "they all do."
Randale Ganaway testified that he was a correctional counselor at Deberry Special Needs Facility, that the Petitioner was an inmate in the unit for mental health treatment, and that he was the Petitioner's counselor. Ganaway said that when inmates requested something from him, he prepared a written summary of his discussion with the inmate and entered the summary into the computer. His computer notes reflected that on December 31, 2008, the Petitioner requested the address of the federal courthouse in Nashville and that he gave the address to the Petitioner. The Petitioner also requested the services of a notary and material from the legal library.
Ganaway testified that in order to send mail, an inmate had to put the mail in the "pie flap" of his cell door or give it to a correction officer. Correction officers collected the mail and put it in a box for each housing unit. Someone from the mail room then collected the mail from the boxes at a certain time each day, Monday through Friday. Ganaway said that "[e]very now and then, " he put mail in a unit box for an inmate and that any employee could do so. However, employees were "not allowed to fool with . . . mail outside the units." Ganaway acknowledged that in January 2009, he may have put mail in the unit box for the Petitioner. However, he did not specifically remember doing so. He said, though, that he remembered weighing a package for the Petitioner and telling the Petitioner how many stamps were needed to mail the package. Ganaway did not put stamps on the package for the Petitioner.
On cross-examination, Ganaway testified that he did not read inmates' mail and did not know the contents of the Petitioner's package. Upon being questioned by the post-conviction court, Ganaway testified that the prison mail room kept a log book in which employees recorded ...