Assigned on Briefs August 15, 2017 at Knoxville
from the Criminal Court for Shelby County No. 10-02252 W.
Mark Ward, Judge.
Petitioner filed a pro se petition for post-conviction
relief. The post-conviction court summarily dismissed the
petition because it was not timely filed and the Petitioner
failed to present any factual allegations or documents
allowing the tolling of the statute of limitations. On
appeal, the Petitioner concedes that his petition was
untimely filed but argues that the statute of limitations
should be tolled and his petition addressed on its merits.
The Petitioner also contends that this court should treat his
motion to vacate, which was denied by the trial court, as a
properly-filed petition for post-conviction relief. After a
thorough review of the record and applicable case law, we
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Mogy, Memphis, Tennessee, for the appellant, Dean Heath.
Herbert H. Slatery III, Attorney General and Reporter;
Zachary T. Hinkle, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Omar Malik, Assistant
District Attorney General, for the appellee, State of
L. Holloway, Jr., J., delivered the opinion of the court, in
which Thomas T. Woodall, P.J., and Camille R. McMullen, JJ.,
L. HOLLOWAY, JR., JUDGE.
and Procedural Background
Shelby County jury convicted Dean Heath, "the
Petitioner, " of first degree premeditated murder, first
degree felony murder, and especially aggravated robbery. The
trial court merged the murder convictions and sentenced the
Petitioner to life and imposed a concurrent sentence of
twenty-five years for especially aggravated robbery. On
direct appeal, the Petitioner claimed that the trial court
erred in finding him competent to stand trial and that there
was not sufficient evidence to sustain the convictions. This
court affirmed the convictions and application for permission
to appeal was denied by the supreme court. State v. Dean
Heath, No. W2011-02515-CCA-R3-CD, 2013 WL 2297133, at *1
(Tenn. Crim. App. May 23, 2013), perm. app. denied (Tenn.
Oct. 17, 2013).
January 21, 2016, the Petitioner filed a pro se Petition for
Post-Conviction Relief ("the Petition"). Below the
section of the Petition asking the Petitioner to "state
why the statute of limitations should not bar [his] claim,
" was handwritten:
Because in the matter of me failing to go pass [sic] the
statute of limitations, was one my mental capability
doen't [sic] fully register in this field of work, so I
had to go wit [sic] the help I could, me or my family
can't afford proper legal assistant for this case to be
awarded in its proper form.
post-conviction court appointed counsel on February 1, 2016.
On February 24, the State moved to dismiss, arguing the
Petition was not timely filed. Post-conviction counsel filed
an affidavit stating that, shortly after he was appointed, he
asked the Petitioner and the Petitioner's mother for
additional information to "demonstrate the
[P]etitioner's inability to manage his affairs or
understand his legal rights and liabilities."
Post-conviction counsel stated that, as of March 21, he had
received no information from the Petitioner or the
Petitioner's mother. On March 22, the post-conviction
court entered an order summarily dismissing the petition
because it was not timely filed and because the Petitioner
"fail[ed] to present any factual allegations or
documents allowing the tolling of the statute." On April
13, the Petitioner filed a Notice of Appeal and a motion
asking for appointment of counsel. On April 14, the
post-conviction court found that it had lost jurisdiction
after the filing of a notice of appeal and denied appointment
of counsel for appeal. On August 1, the Petitioner filed a
pro se "Motion to Vacate the Previous Post-Conviction
Judgment Order and/or Appoint Counsel for Purposes of Appeal
in the Interest of Justice" ("the Motion to
Vacate"). By order entered on August 4, the
post-conviction court denied the Motion to Vacate and again
denied appointment of counsel. On August 22, the Petitioner
filed a pro se Notice of Appeal from the denial of the Motion
to Vacate. ...