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Davis v. State

Court of Criminal Appeals of Tennessee, Nashville

May 23, 2017

CHARLES BRENDEN DAVIS
v.
STATE OF TENNESSEE

          Assigned on Briefs April 26, 2017 at Knoxville

         Appeal from the Criminal Court for Davidson County No. 2013-A-180 Cheryl A. Blackburn, Judge

         The Petitioner's convictions were affirmed by this court on direct appeal and no Tennessee Rule of Appellate Procedure 11 application for permission to appeal was filed. The Petitioner filed an untimely petition for post-conviction relief, alleging that he received the ineffective assistance of counsel and requesting that he be allowed to file a delayed Rule 11application. The post-conviction court summarily dismissed the petition. On appeal, the Petitioner argues that the post-conviction court erred in summarily dismissing his petition because the statute of limitations should be tolled under due process. After a thorough review of the record and applicable case law, we affirm.

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

          Charles Brenden Davis, Tiptonville, Tennessee, Pro Se.

          Herbert H. Slatery III, Attorney General and Reporter; Sophia S. Lee, Senior Counsel; Glenn Funk, District Attorney General; and Megan King, Assistant District Attorney General, for the appellee, State of Tennessee.

          Robert L. Holloway, Jr., J., delivered the opinion of the court, in which D. Kelly Thomas, Jr., and Robert H. Montgomery, Jr., JJ., joined.

          OPINION

          ROBERT L. HOLLOWAY, JR., JUDGE

         I. Factual and Procedural Background

         The Petitioner was indicted for two counts of aggravated burglary, theft of property valued at $1, 000 or more but less than $10, 000, theft of property valued at $500 or less, and employing a firearm during the commission of a dangerous felony. State v. Charles B. Davis, No. M2013-01903-CCA-R3-CD, 2015 WL 1275369, at *1 (Tenn. Crim. App. Mar. 18, 2015), no perm. app. filed. The Petitioner pled guilty to one count of aggravated burglary and was convicted by a jury of theft of property valued at $1000 or more but less than $10, 000, theft of property valued at $500 or less, and employing a firearm during the commission of a dangerous felony. Id. at *3. The jury acquitted the Petitioner of the remaining count of aggravated burglary. Id. The trial court sentenced the Petitioner to an effective sentence of twenty years as a Range II, multiple offender. Id. On appeal, this court affirmed the Petitioner's convictions. Id. at *6.

         Post-Conviction Proceeding

         After this court issued its opinion affirming the Petitioner's convictions on direct appeal, the Petitioner's appellate counsel filed a motion to withdraw on April 1, 2015. In a letter also dated April 1, 2015, appellate counsel informed the Petitioner that he was withdrawing from the case, that he would not file a Rule 11 application on the Petitioner's behalf, that the Petitioner could file a Rule 11 application pro se if this court granted the motion to withdraw, and that the deadline for filing the application was on or before May 18, 2015. The letter stated four times that the Petitioner's deadline for filing a Rule 11 application was on May 18, 2015. This court granted appellate counsel's motion to withdraw on April 10, 2015.

         The Petitioner did not file a Rule 11 application and instead filed an untimely petition for post-conviction relief on August 17, 2016. In his petition, the Petitioner sought to file a delayed Rule 11 application to seek review of his conviction by the Tennessee Supreme Court. The Petitioner asserted that on April 6, 2015, he received the letter from appellate counsel informing him that appellate counsel had filed a motion to withdraw and that his Rule 11 application was due on May 18, 2015, leaving the Petitioner only forty-one days to obtain his case file and transcripts, review the documents, and prepare and file his Rule 11 application. The Petitioner also asserted that "[d]ue process concerns require the tolling of a petition for post-conviction in regard to a request for a delayed appeal following unilateral termination of direct appeal following first-tier review, at no fault of [the P]etitioner's own."

         On August 31, 2016, the post-conviction court summarily dismissed the Petitioner's claims on the ground that his petition was time-barred. The post-conviction court noted that the Petitioner did not "address why he filed his request for post-conviction relief outside the one-year statute of limitations period." The post-conviction court also noted that neither of the grounds for relief that the Petitioner raised, ineffective assistance of counsel and his request for a delayed Rule 11 application, fell under "any of the recognized exceptions to the statute of ...


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