Court of Criminal Appeals of Tennessee, Knoxville
Assigned on Briefs December 20, 2016
from the Criminal Court for Sevier County No. 9429-III Rex
Henry Ogle, Judge
petitioner, Robert Keith Ward, appeals pro se from the
summary dismissal of his 2016 petition for post-conviction
relief, which challenged his 2004 conviction of aggravated
rape. Because the petition was filed well beyond the
applicable statute of limitations and because the petitioner
failed to prove a statutory exception to the timely filing or
a due process tolling of the statute of limitations, we
affirm the judgment of the post-conviction court.
R. App. P. 3; Judgment of the Criminal Court Affirmed
Keith Ward, Nashville, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter; Robert
W. Wilson, Assistant Attorney General; James B. Dunn,
District Attorney General; and Ronald C. Newcomb, Assistant
District Attorney General, for the appellee, State of
Curwood Witt, Jr., J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and John Everett Williams, J.,
CURWOOD WITT, JR., JUDGE.
2004, a Sevier County Criminal Court jury convicted the
petitioner of one count of the aggravated rape of his
sister-in-law, and the trial court imposed an effective
sentence of 60 years in prison. This court affirmed the
conviction and sentence on direct appeal. State v. Robert
K. Ward, No. E2004-01665-CCA-R3-CD, slip op. at 1 (Tenn.
Crim. App., Knoxville, Dec. 29, 2005), perm. app.
denied (Tenn. May 1, 2006).
March 14, 2011, the petitioner filed a pro se petition for
post-conviction relief, alleging ineffective assistance of
counsel. The post-conviction court summarily dismissed the
petition, deeming it time barred, and this court affirmed the
denial. Robert Keith Ward v. State, No.
E2011-01835-CCA-R3-PC, slip op. at 1 (Tenn. Crim. App.,
Knoxville, Aug. 20, 2012), perm. app. denied (Tenn.
Jan. 22, 2013).
February 24, 2016, the petitioner filed the pro se petition
for post-conviction relief now under review, and on March 24,
2016, the post-conviction court again summarily dismissed the
petition as time barred.
appeal, the petitioner challenges the summary dismissal of
his 2016 petition, arguing that the Tennessee Supreme
Court's decision in State v. Gomez, 239 S.W.3d
733 (Tenn. 2007), and the United States Supreme Court's
decision in Cunningham v. California, 549 U.S. 270
(2007), apply retroactively to toll the statute of
limitations in his case. In addition, the petitioner argues
that newly discovered evidence of ineffective assistance of
counsel tolls the statute of limitations and that he is
entitled to plain error review of his sentence due to the
trial court's error in the use of inappropriate
enhancement factors. The State responds that the appeal was
untimely filed and that, in any event, the petition at issue
was not timely filed.
first address the petitioner's notice of appeal. The
State is correct in its assertion that the petitioner's
June 2, 2016 notice was untimely filed; the post-conviction
court's order summarily dismissing the petition was
entered on March 24, 2016. However, this court, in an order
dated June 3, 2016, concluded that the interests of justice
required a waiver of the timely filing requirement.
See Tenn. R. App. P. 4(a).
person in custody . . . must petition for post-conviction
relief . . . within one (1) year of the date of the final
action of the highest state appellate court to which an
appeal is taken." T.C.A. § 40-30-102(a). "If
it plainly appears from the face of the petition, . . . 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. The order shall state the
reason for the dismissal and the facts requiring
dismissal." Id. § 40-30-106(b). The
statute of limitations for filing a post-conviction petition
is jurisdictional. See id. § 40-30-102(b)
("No court shall have jurisdiction to consider a
petition filed after the expiration of the limitations period
unless [certain statutory prerequisites are met]."). Our
supreme court has held that "the one-year statutory
period is an element of the right to file a post-conviction
petition and that it is not an affirmative defense that must
be asserted by the State." State v. Nix, 40
S.W.3d 459, 464 (Tenn. 2001). Thus, "it is incumbent
upon a petitioner to include allegations of fact in the