Assigned on Briefs February 6, 2018
from the Circuit Court for Henderson County No. 17-065-1Roy
B. Morgan, Jr., Judge
petitioner, Bradley Cox, appeals the dismissal of his
petition for post-conviction relief, asserting the
post-conviction court erred when summarily dismissing his
petition as untimely because trial counsel's misconduct
tolled the statute of limitations. Discerning no error, we
affirm the post-conviction court's dismissal of the
petition pursuant to Rule 20 of the Rules of the Court of
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed Pursuant to Rule 20 of the Rules of the
Criminal Court of Appeals
Bradley Cox, Clifton, Tennessee, pro se.
Herbert H. Slatery III, Attorney General and Reporter;
Benjamin Ball, Assistant Attorney General; Jody Pickens,
District Attorney General; and Angela R. Scott, Assistant
District Attorney General, for the appellee, State of
Ross Dyer, J., delivered the opinion of the court, in which
John Everett Williams and Camille R. McMullen, JJ., joined.
ROSS DYER JUDGE.
Henderson County jury found the petitioner guilty of one
count of aggravated sexual battery and two counts of rape of
a child, for which the trial court imposed an effective
sentence of thirty-seven years to be served at 100%.
State v. Bradley Cox, No. W2010-00800-CCA-R3-CD,
2015 WL 3796463, at *1 (Tenn. Crim. App. June 17, 2014)
perm. app. denied (Tenn. Nov. 24, 2015). The
petitioner filed a timely direct appeal challenging the
sufficiency of the evidence to sustain his convictions and
requesting a new trial due to the State's failure to
timely disclose certain exculpatory evidence. Id.
This Court affirmed the judgments of the trial court, so the
petitioner filed an application for permission to appeal to
the Tennessee Supreme Court. Id. Our Supreme Court
denied this application on November 24, 2015. Id.
petitioner filed a pro se petition for post-conviction relief
on February 8, 2017, over one-year after the Tennessee
Supreme Court's denial of his application for permission
to appeal. In his petition, the petitioner asserted
ineffective assistance of counsel due to these deficiencies:
failure to request recusal of the general sessions judge;
failure to request a venue change; failure to present
evidence of a conflict of interest between an expert witness
and the petitioner's wife; failure to make a for-cause
challenge during voir dire to the potential juror who
ultimately became the foreperson; failure to acquire all
evidence within the State's possession; failure to
request a trial continuance to review certain late-disclosed
evidence; failure to seek the admission of the video-recorded
police interview of the petitioner; failure to follow
appellate procedures; and failure to communicate with the
petitioner throughout the direct appeal. Nowhere within this
petition did the petitioner address his reason for waiting
over fourteen months after the denial of his application for
permission to appeal to seek post-conviction relief.
post-conviction court dismissed the petition without a
hearing on February 21, 2017. In its order dismissing the
petitioner's request for post-conviction relief, the
post-conviction court found that Tennessee Code Annotated
section 40-30-102 gives the petitioner one year from the date
the judgment of conviction becomes final to seek
post-conviction relief, and the petitioner filed his petition
on February 8, 2017, over one year after the Tennessee
Supreme Court denied his application for permission to
appeal. Moreover, the petitioner did not claim any statutory
exceptions for filing his petition outside the statute of
March 2, 2017, the petitioner filed a motion to reconsider
his petition for post-conviction relief, arguing he was
entitled to due process tolling of the limitations period
because, due to trial counsel's lack of communication, he
was uncertain as to the state of representation following his
direct appeal. The post-conviction court denied this motion
to reconsider on March 6, 2017, again finding the petitioner
filed an untimely petition for post-conviction relief, and
the petition did not contain any qualifying allegations under
Tennessee Code Annotated section 40-30-102 to toll the
statute of limitations. The post-conviction court further
found the petitioner was not entitled to any relief under his
motion to reconsider. We pause in the recitation of the
procedural history to reiterate that a motion to reconsider
is simply not authorized by the Tennessee Rules of Criminal
Procedure. State v. Turco, 108 S.W.3d 244, 245 n.2
(Tenn. 2003); State v. Lock, 839 S.W.2d 436, 440
(Tenn. Crim. App. 1992); State v. Ryan, 756 S.W.2d
284, 285 n.2 (Tenn. Crim. App. 1988). Accordingly, any claim
to due process tolling of the statute of limitations should
have been included in the initial petition. Tenn. Sup. Ct. R.
28 § 5(E)-(F).
March 10, 2017, the petitioner filed a notice of appeal,
designating the order denying his petition for
post-conviction relief, received by the petitioner on
February 13, 2017 and filed by the post-conviction court on
February 21, 2017, as the order being appealed. The notice of
appeal did not reference the order denying the
petitioner's motion to reconsider. Moreover, Tennessee
Rule of Appellate Procedure 3(b) does not provide for an
appeal as of right from the denial of a motion to reconsider
relief. See John Ivory v. State, No.
W2015-00636-CCA-R3-PC, 2015 WL 6873474, at *2 (Tenn. Crim.
App. Nov. 9, 2015).
petitioner seeking post-conviction relief has one year from
"the date of the final action of the highest state
appellate court to which an appeal is taken" to seek
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. The untimely
filing of a post-conviction petition extinguishes the
petitioner's claims unless he can establish that due
process required the tolling of the statute of limitations.
Id. The Tennessee Supreme Court has addressed the
circumstances under which due process requires the statute of
limitations for seeking post-conviction relief to be tolled,
and those circumstances are limited to claims for relief
arising after the expiration of the statute of limitations,
situations where a prisoner's ...