Assigned on Briefs December 6, 2016
from the Criminal Court for Shelby County No. 05-01013 Chris
Petitioner, Starbrough Jones, filed a petition for
post-conviction relief, alleging that his trial counsel was
ineffective. The post-conviction court dismissed the petition
as untimely. On appeal, the Petitioner concedes that the
petition was untimely but maintains that due process requires
tolling the statute of limitations because he was never
"official[ly]" informed that counsel was
withdrawing after this court filed its opinion on direct
appeal and because counsel did not advise the Petitioner of
his right to seek post-conviction relief. Upon review, we
affirm the judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
J. Beasley (on appeal) and Paul Guibao (at post-conviction
hearing), Memphis, Tennessee, for the Appellant, Starbrough
Herbert H. Slatery III, Attorney General and Reporter;
Benjamin A. Ball, Senior Counsel; Amy P. Weirich, District
Attorney General; and Alexia Crump and Carla Taylor,
Assistant District Attorneys General, for the Appellee, State
McGee Ogle, J., delivered the opinion of the court, in which
Robert L. Holloway, Jr., and Robert H. Montgomery, Jr., JJ.,
MCGEE OGLE, JUDGE.
trial, the Petitioner was convicted of felony murder,
especially aggravated robbery, and attempted especially
aggravated robbery. State v. Starbrough Jones, No.
W2006-02230-CCA-R3-CD, 2008 WL 4378166, at *1 (Tenn. Crim.
App. at Jackson, Sept. 25, 2008), perm. to appeal
denied, (Tenn., Mar. 16, 2009). He received a total
effective sentence of life plus twenty-one years.
Id. On appeal, this court affirmed the judgments of
the trial court. Id. On March 16, 2009, the supreme
court denied the Petitioner's pro se application for
permission to appeal. Id.
April 29, 2014, the Petitioner filed a pro se petition for
post-conviction relief alleging that counsel was ineffective
by failing to "object throughout the trial proceeding in
an effort to protect the record against procedural default or
waiver, " by failing to "investigate and present a
mental health defense, " and by "allowing
Petitioner's indictment to be read to the jury by the
district attorney as proof that the grand jury had determined
a fact necessary to convict." In the petition, the
Petitioner acknowledged that the petition was untimely but
contended that "principles of due process required
tolling the statute of limitations because his delay in
filing the petition was att[ri]butable to abandonment and
misrepresentations made by his appointed . . . counsel
regarding the status of his case."
27, 2014, the post-conviction court appointed counsel to
assist the Petitioner. The State filed a motion to dismiss
the pro se petition, asserting that the petition was untimely
and that due process did not require tolling of the statute
of limitations. The post-conviction court denied the motion.
post-conviction hearing, the Petitioner testified that
counsel represented him at trial and on appeal. The
Petitioner said that counsel did not advise him of his right
to file an application for permission to appeal to the
Petitioner said that he received a letter from counsel
advising the Petitioner that counsel was filing a motion to
withdraw from the case. The Petitioner said that he never
received notification that the motion was granted. In the
letter, counsel did not advise the Petitioner about how or
when to pursue post-conviction relief. The Petitioner said
that until he was advised by other inmates, he did not know
that he ...