Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs March 25, 2015
Appeal from the Criminal Court for Bradley County No. 14CR459 Andrew M. Freiberg, Judge
Antwon Cook, Lewisburg, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Lacy Wilber, Senior Counsel, for the appellee, State of Tennessee.
John Everett Williams, J., delivered the opinion of the Court, in which Norma McGee Ogle and Robert L. Holloway, Jr., JJ., joined.
JOHN EVERETT WILLIAMS, JUDGE
FACTS AND PROCEDURAL HISTORY
On January 9, 2006, the petitioner pled guilty to one count of possession of cocaine in excess of 0.5 grams with the intent to sell and one count of the sale of cocaine in excess of 0.5 grams and received an eight-year sentence. Pursuant to the plea agreement, his state sentence was to be served concurrently with a federal sentence. The petitioner began serving his sentence in the custody of the Tennessee Department of Correction. On June 1, 2010, the petitioner was discharged from state custody and released to federal custody, and he began serving his federal sentence on October 5, 2010.
Once in federal custody, the petitioner realized that he was not receiving credit on his federal sentence for the time that he was incarcerated in the Tennessee Department of Correction, effectively rendering the sentences consecutive. He filed a motion on February 24, 2011, with the Federal Bureau of Prisons requesting jail credits, and he received credits from May 29, 2010 to June 2, 2010. The petitioner filed several additional motions requesting credit for the full amount of time that he was incarcerated on his state convictions, all of which were denied.
On December 2, 2013, the petitioner filed a petition for writ of error coram nobis alleging several issues with his guilty plea and sentences and that he received the ineffective assistance of counsel. On appeal, this court affirmed the denial of the petition. Antwon Cook v. State, No. E2014-00214-CCA-R3-ECN, 2014 WL 3210759, at *2 (Tenn. Crim. App. July 8, 2014). This court observed that even if the statute were tolled until the petitioner discovered that he would serve his sentences consecutively, the petition "was filed well beyond the one-year statute of limitations for either coram nobis or post-conviction relief." Id. at *2. As a result, this court concluded the petitioner had not presented newly discovered evidence and that due process did not warrant an equitable tolling of the statute of limitations. Id.
On August 28, 2014, the petitioner filed his current petition for post-conviction relief. He alleged that he was not serving his federal sentence concurrently with his state sentence and that due process required an equitable tolling of the statute of limitations for consideration of his claims of ineffective assistance of counsel and an unknowing and involuntary guilty plea. The post-conviction court issued a written order denying the petition without appointing counsel or holding a hearing. The court found that the petitioner waited "in excess of eight years" before filing his petition. The court noted that the petitioner became aware upon his transfer to federal custody in 2010 that his sentences were not being imposed concurrently, yet he "delayed significantly before seeking any form of relief." While noting that it was "not unsympathetic to [the petitioner's] plight, " the court found that the petitioner was aware of the consecutive sentencing in 2010 and "was provided ample opportunity to present his claims within a meaningful time and in a meaningful manner."
The petitioner filed a timely notice of appeal, and we proceed to consider his claims.
I. Equitable Tolling