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Jones v. State

Court of Criminal Appeals of Tennessee, Jackson

March 14, 2017

STARBROUGH JONES
v.
STATE OF TENNESSEE

          Assigned on Briefs December 6, 2016

         Appeal from the Criminal Court for Shelby County No. 05-01013 Chris Craft, Judge

         The 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.

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

          Ernest J. Beasley (on appeal) and Paul Guibao (at post-conviction hearing), Memphis, Tennessee, for the Appellant, Starbrough Jones.

          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 of Tennessee.

          Norma McGee Ogle, J., delivered the opinion of the court, in which Robert L. Holloway, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          NORMA MCGEE OGLE, JUDGE.

         I. Factual Background

         At 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.

         On 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."

         On May 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.

         At the 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 supreme court.

         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 ...


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