Session May 2, 2017
from the Criminal Court for Shelby County No. 10-07889 James
M. Lammey, Judge.
petitioner, Jackson Martin, was convicted by a Shelby County
jury of one count of attempted second-degree murder and two
counts of carjacking. Over one year after this Court affirmed
his convictions, the petitioner filed a petition for
post-conviction relief. The trial court subsequently denied
the petition on its merits. Following our review of the
record and pertinent authorities, we conclude the petition
was untimely, and so this Court is without jurisdiction to
consider this appeal. Accordingly, we dismiss this appeal and
remand the matter to the trial court for proceedings
consistent with this opinion.
R. App. P. 3 Appeal as of Right; Appeal Dismissed.
Jones, Bartlett, Tennessee, for the appellant, Jackson
Herbert H. Slatery III, Attorney General and Reporter;
Caitlin Smith, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Tyler Parks, Assistant
District Attorney General, for the appellee, State of
Ross Dyer, J., delivered the opinion of the court, in which
Alan E. Glenn and Robert L. Holloway, Jr., JJ., joined.
ROSS DYER, JUDGE
Shelby County jury convicted the petitioner of attempted
second degree murder and two counts of carjacking, for which
he received an effective sentence of twenty-two years in
confinement. State v. Jackson Martin, No.
W2012-00144-CCA-R3-CD, 2013 WL 427897, at *1-5 (Tenn. Crim.
App. Feb. 1, 2013). On February 1, 2013, his conviction was
affirmed by this Court on direct appeal, and the petitioner
did not seek permission to appeal to the Tennessee Supreme
Court. Id. The petitioner filed his pro se petition
for post-conviction relief on March 5, 2014, over one year
after the final decision by the highest appellate court from
which the petitioner sought relief, arguing in part, trial
counsel failed to respond to the State's request for
notice of the petitioner's intent to present an alibi
defense and failed to speak with and call several witnesses
to testify at trial. The trial court appointed counsel, who
filed an amended petition for post-conviction relief, and
held an evidentiary hearing on the petition. The State did
not raise the timeliness of the petition, and the trial court
treated the petition as timely. The trial court ultimately
denied the petition, and this appeal followed.
appeal, the petitioner again alleges trial counsel provided
ineffective assistance because he failed to file a notice of
alibi and failed to call eyewitnesses. The State contends the
petitioner filed an untimely petition for post-conviction
relief, so his appeal should be dismissed. Alternatively, the
State argues the petitioner received effective assistance of
counsel. Following our consideration of the record, pertinent
law and authorities, and arguments of the parties, we
conclude the petition for post-conviction relief was
untimely, so the trial court did not have jurisdiction to
consider the petition and neither do we. Accordingly, we
dismiss the petitioner's appeal and remand the matter to
the trial court for proceedings consistent with this opinion.
post-conviction petitioner has one year from "the date
of the final action of the highest state appellate
court" in which to file a petition for relief. Tenn.
Code Ann. § 40-30-102(a). "Time is of the essence
of the right to file a petition for post-conviction
relief." Id. Untimely filing of a
post-conviction petition extinguishes a petitioner's
post-conviction claims. Id. Tennessee Code Annotated
section 40-30-102 subpart (b) states that "[n]o court
shall have jurisdiction to consider a petition filed after
the expiration of the limitations period" and then sets
out the following three exceptions to this rule:
(1) The claim in the petition is based upon a final ruling of
an appellate court establishing a constitutional right that
was not recognized as existing at the time of trial, if
retrospective application of that right is required. The
petition must be filed within one (1) year of the ruling of
the highest state appellate court or the United States
supreme court ...