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Ward v. State

Court of Criminal Appeals of Tennessee, Knoxville

January 5, 2017


          Assigned on Briefs December 20, 2016

         Appeal from the Criminal Court for Sevier County No. 9429-III Rex Henry Ogle, Judge

         The 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.

         Tenn. R. App. P. 3; Judgment of the Criminal Court Affirmed

          Robert 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 Tennessee.

          James Curwood Witt, Jr., J., delivered the opinion of the court, in which Thomas T. Woodall, P.J., and John Everett Williams, J., joined.



         In 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).

         On 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).

         On 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.

         On 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.

         We must 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).

         "[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 ...

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