Session April 11, 2017
from the Criminal Court for Shelby County No. 03-07591 James
C. Beasley, Jr., Judge
Petitioner, Robert Webb, appeals the post-conviction
court's denial of his petition for post-conviction relief
as untimely upon its conclusion that the Petitioner's
mental incompetence did not toll the statute of limitations.
After review, we affirm the denial of the petition.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
R. Chism, Memphis, Tennessee, for the appellant, Robert Webb.
Herbert H. Slatery III, Attorney General and Reporter;
Caitlin Smith, Assistant Attorney General; Amy P. Weirich,
District Attorney General; and Karen Cook, Assistant District
Attorney General, for the appellee, State of Tennessee.
E. Glenn, J., delivered the opinion of the court, in which
Timothy L. Easter and J. Ross Dyer, JJ., joined.
E. GLENN, JUDGE
November 30, 2005, the Petitioner pled guilty to first-degree
murder, aggravated rape, aggravated burglary, and aggravated
robbery in exchange for an effective sentence of life without
the possibility of parole. See Robert Lewis Webb v.
State, No. W2013-01250-CCA-R3-PC, 2014 WL 4244028, at *1
(Tenn. Crim. App. Aug. 27, 2014), perm. app. denied
(Tenn. Jan. 20, 2015). Years later, on November 14, 2011, the
Petitioner filed an untimely pro se petition for
post-conviction relief, alleging that his guilty plea was
involuntary, that his confession was coerced, that his trial
counsel was ineffective, and that he possessed newly
discovered evidence. Id. Counsel was appointed to
represent the Petitioner and filed an amended petition and
additional pleadings, claiming that a new rule of
constitutional law should be applied retroactively to the
Petitioner's case, that the post-conviction statute of
limitations should be tolled because the Petitioner was
mentally incompetent during the time that the petition should
have been filed, and that trial counsel gave the Petitioner
both improper and insufficient advice. Id. at *1-2.
The post-conviction court dismissed the petition without an
evidentiary hearing, and this court remanded for a hearing to
determine whether due process required that the statute of
limitations be tolled. Id. Following an evidentiary
hearing, the post-conviction court denied the petition,
finding that due process did not require tolling of the
statute of limitations in the Petitioner's case. The
proof presented at the July 7, 2016 evidentiary hearing is
Hutcherson testified that she served as the mental health
coordinator at Whiteville Correctional Facility from 2003
until 2014. She had an educational background in mental
health counseling, and she worked with doctors and other
counselors to determine the best mental health treatment for
inmates. She worked with the Petitioner from the time he
arrived at the facility in February 2006 and had frequent
interaction with him. The Petitioner was diagnosed with
paranoid schizophrenia, had an IQ of 75 and was classified as
mildly mentally retarded, and suffered from depression.
Hutcherson testified that the Petitioner was occasionally
sent to the special needs facility in Nashville when his
symptoms worsened. For instance, in March 2007, the
Petitioner attempted suicide and was sent to the special
needs facility until October 2008. Ms. Hutcherson agreed that
the Petitioner resided in the Whiteville Correctional
Facility "all of 06, a little bit tail end of
08, some of 09, five or six months of 09, and
then from May through November of 11." He was
eventually sent to the special needs facility permanently
because his mental health condition had worsened.
Hutcherson testified that the Petitioner was "seriously
and persistently mentally ill." His behavior was not
consistent over the years - "[t]here were times that he
was worse." The Petitioner's treatment plan involved
compliance with taking his medication, including his
medication for diabetes. He was also to meet with Ms.
Hutcherson, a case manager, and a psychiatrist on a regular
basis. During 2006, Ms. Hutcherson met with the Petitioner
daily for fifteen to thirty minutes. At these meetings, she
encouraged the Petitioner to have better hygiene and take his
medication. Despite being diabetic, the Petitioner sometimes
traded parts of his meals with another inmate for sweets. The
Petitioner was prescribed an antipsychotic medication, as
well as an antidepressant. At times the Petitioner was
compliant with taking his medication; at other times he was
Hutcherson testified that the Petitioner's mental health
deteriorated when he did not take his medication. It was
during these periods that the Petitioner tried to commit
suicide, which he attempted at least three or four times
while at Whiteville Correctional Facility. Due to his mental
health issues, the Petitioner was not capable of working a
typical "prison job, " but he was able to do a
"medical or mental health incentive job" like
feeding the fish in her fish tank. Ms. Hutcherson recalled
that the Petitioner enjoyed playing cards with other inmates.
However, he cheated during the games, and other inmates would
"take advantage" of him by duping him out of
commissary items. Other than participating in card games, the
Petitioner was not social and stayed to himself. Ms.
Hutcherson said that the Petitioner had limited reading and
writing skills, and other inmates had to help him fill out
requests for commissary, legal, or medical help. The
Petitioner's medical records reflected that he had a
second-grade reading level.
Hutcherson recalled that while the Petitioner was at the
Whiteville prison, Carlito Adams, an inmate who provided
legal services to other inmates, helped the Petitioner with
legal work. In 2011, the Petitioner asked Ms. Hutcherson to
write a letter describing his mental health issues. Ms.
Hutcherson said that, in her opinion, the Petitioner was
"very low functioning" and would not have been
capable of performing his own legal work. She opined that,
due to the Petitioner's mental illness and IQ, he would
not have been able to understand legal issues or make
rational decisions among his options.
Hutcherson testified that the Petitioner sometimes asked her
to read letters to him from family members because he did not
want other inmates reading his personal letters. She
acknowledged that the Petitioner was able to follow simple