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McGrowder v. State

Court of Criminal Appeals of Tennessee, Nashville

March 8, 2018


          Session December 12, 2017

         Appeal from the Criminal Court for Davidson County No. 2012-B-1817 Mark J. Fishburn, Judge

         The Petitioner, Brian Caswell McGrowder, appeals from the dismissal of his petition for post-conviction relief as untimely. The Petitioner contends that due process concerns should toll the one-year statute of limitations to allow review of his underlying claims. Upon our review, we affirm the judgment of the post-conviction court.

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

          Manuel B. Russ, Nashville, Tennessee, for the appellant, Brian Caswell McGrowder.

          Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; Glenn Funk, District Attorney General; and Janice Norman, Assistant District Attorney General, for the appellee, State of Tennessee.

          Camille R. McMullen, J., delivered the opinion of the court, in which Norma McGee Ogle and Timothy L Easter, JJ., joined.



         Shortly after the seventeen-year old victim was evicted from her mother's home, she moved into the Petitioner's home, began a sexual relationship with him, and bore his child. State v. Brian Caswell McGrowder, No. M2013-01184-CCA-R3-CD, 2014 WL 4723100, at *1, 10 (Tenn. Crim. App. Sept. 23, 2014), perm. app. denied, (Tenn. Feb. 12, 2015). The Petitioner was the victim's training supervisor at work and de facto caretaker. Id. at *10. As a result of his behavior, on July 17, 2012, a Davidson County jury convicted the Petitioner of statutory rape by an authority figure and aggravated statutory rape, for which he received an effective sentence of three years in confinement. On May 5, 2014, the Petitioner was released from prison and reported to the Sex Offender Registry as required the next day. Trial counsel sent the Petitioner a letter, dated

          February 13, 2015, which provided that the Tennessee Supreme Court's denial of the Petitioner's Rule 11 application ended the Petitioner's direct appeal. The letter stated, in pertinent part:

You have the right to file a petition for post-conviction relief, but I cannot assist you in that on the basis of my appointment by the trial court because my appointment extends only to the direct appeal of your conviction. Thus, the Tennessee Supreme Court's denial of your application also marks the end of my representation of your [sic] for purposes of this case.

         On May 17, 2016, the Petitioner received a deportation notice from the Department of Homeland Security informing him that his status had changed due to his state convictions. At some point in May 2016, the Petitioner was taken into custody by federal authorities on an immigration hold. On October 17, 2016, the Petitioner filed a pro se petition for post-conviction relief. Post-conviction counsel was appointed, and an amended petition was filed on February 9, 2017.[1]

         A post-conviction hearing was conducted on April 5, 2017; however, the Petitioner was not present and no proof was offered in support of his petition. Post-conviction counsel advised the court that the federal government would not produce the Petitioner and waived his appearance for purposes of the hearing. Post-conviction counsel conceded that the petition for post-conviction relief was untimely filed by three months and argued that the statute of limitations should be tolled based on appellate counsel's failure to advise the Petitioner of the deadline for seeking post-conviction relief or that he could be appointed counsel if he sought post-conviction relief. Post-conviction counsel further maintained that the Petitioner relied on appellate counsel to advise him of any appellate issues and that the Petitioner should not be expected to know the difference between "an appeal, a direct appeal and a post-conviction federal habeas corpus" as referenced in appellate counsel's February 13, 2015 letter.

         Relying on Whitehead v. State, the State argued that the petition was time-barred because the Petitioner failed to demonstrate that he had diligently pursued his rights for post-conviction relief and that there were no extraordinary circumstances to justify due process tolling of the statute of limitations. 402 S.W.3d 615, 631 (Tenn. 2013) (citing Holland v. Florida, 560 U.S. 631, 648 (2010)). The State pointed out that appellate counsel's letter to the Petitioner informed him (1) that he had the right to file for post-conviction relief, (2) that counsel was only appointed for his direct appeal, and (3) to call counsel if the Petitioner had any questions. The State also argued that there was no caselaw requiring "an appellate attorney to go through . . . every relief available to any defendant about the post-conviction because they do ...

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