Court of Criminal Appeals of Tennessee, Knoxville
BENJAMIN K. FOWLER
STATE OF TENNESSEE
Assigned on Briefs November 15, 2016
from the Criminal Court for Knox County No. 106168 Steven W.
Petitioner, Benjamin K. Fowler, appeals from the Knox County
Criminal Court's summary denial of his petition for
post-conviction relief. The Petitioner contends that the
post-conviction court erred in summarily denying his petition
for being untimely filed because, he alleges that, he
delivered a petition to the appropriate prison officials for
mailing to the court clerk within the statute of limitations,
but the prison officials failed to mail the petition.
Discerning no error, we affirm the judgment of the
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Liddell Kirk, Knoxville, Tennessee, for the appellant,
Benjamin K. Fowler.
Herbert H. Slatery III, Attorney General and Reporter;
Katherine C. Redding, Assistant Attorney General; Charme P.
Allen, District Attorney General; and Kevin James Allen,
Assistant District Attorney General, for the appellee, State
Kelly Thomas, Jr., J., delivered the opinion of the court, in
which Robert H. Montgomery, Jr., and Timothy L. Easter, JJ.,
KELLY THOMAS, JR., JUDGE
Petitioner is currently serving a total effective sentence of
life imprisonment plus six years for his convictions of two
counts of felony first degree murder, aggravated burglary,
attempted aggravated robbery, and employing a firearm during
the commission of a dangerous felony. See State v.
Benjamin Keith Fowler, No. E2012-02627-CCA-R3-CD, 2014
WL 885995 (Tenn. Crim. App. Mar. 5, 2014). On March 5, 2014,
this court filed its opinion affirming those convictions.
Id. The Petitioner did not seek permission to appeal
to our supreme court.
August 20, 2015, the Petitioner filed a pro se petition for
post-conviction relief. At the end of the petition, the
Petitioner alleged that he had originally sent the petition
on February 16, 2015, and that this was the second time he
had sent the petition to the post-conviction court. Counsel
was appointed to represent the Petitioner, and an amended
petition was filed. The amended petition alleged that the
Petitioner originally submitted his petition to prison
officials for mailing in February 2015 and that he did not
"know why the original petition . . . [did] not appear
to have been recorded."
post-conviction court held an evidentiary hearing on the
timeliness of the petition. The Petitioner testified that his
trial counsel advised him to file a post-conviction petition
and that he was aware that the statute of limitations expired
on March 5, 2015. The Petitioner further testified that he
"looked over the statutes" in the prison law
library and filled out a form post-conviction petition in
"[m]id-February" 2015. According to the Petitioner,
he had the form notarized and had it sent "to the
mailroom to be mailed out, " along with "a release
form" to pay for the notarization and the mailing from
his inmate trust account.
Petitioner testified that he was "[a]lmost
positive" that this occurred in February 2015. The
Petitioner could not recall how much he was charged for the
mailing, but he claimed that he was charged a dollar for the
notarization. The Petitioner testified that it was not until
several months later when he "had [his] family call the
court clerk" that he found out his petition was never
received. The Petitioner claimed that he had filled out a
second copy of the form petition at the same time as he
filled out the original and that he "immediately"
had this copy notarized and mailed to the court clerk.
Petitioner testified that he requested documentation from the
prison mailroom to show what he had mailed in February 2015,
but that he was only provided with information up to January
2015. The Petitioner further testified he was never given any
explanation for what had happened to his original petition. A
printout of the Petitioner's inmate trust account showed
only one charge in February 2015 for thirty-six cents. When
confronted with this, the Petitioner theorized that a
twenty-dollar charge from April 2015 was likely the fee for
mailing the original petition in February. The Petitioner
claimed that it often took up to thirty days for prison
officials to withdraw funds after "a release form"
is submitted. The Petitioner could not identify a
corresponding charge for the notarization fee.
April 15, 2016, the post-conviction court entered a written
order summarily denying the petition. The post-conviction
court concluded that "the evidence [the Petitioner]
presented . . . [did] not support his claim that he submitted
an earlier petition to the prison authorities." The
post-conviction court noted that the Petitioner presented no
proof corroborating his claim despite the Petitioner's
allegation that he was not given anything by the prison
officials to document his submission. The post-conviction
court also noted that the Petitioner did ...