Assigned on Briefs June 6, 2017
from the Criminal Court for Shelby County No. 99-03924,
99-03925 Chris Craft, Judge
Javon Webster, appeals from the post-conviction court's
summary dismissal of the post-conviction petition filed
approximately twelve years after expiration of the one year
statute of limitations for post-conviction petitions.
Petitioner alleged facts in his petition which he claims
justify tolling of the statute of limitations based upon due
process grounds. After review of the record, we affirm the
judgment of the post-conviction court.
R. App. P. 3 Appeal as of Right; Judgment of the Criminal
Webster, Clifton, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter;
Jeffrey D. Zentner, Assistant Attorney General; Amy P.
Weirich, District Attorney General; and Reggie Henderson,
Assistant District Attorney General, for the appellee, State
T. Woodall, P.J., delivered the opinion of the court, in
which Norma McGee Ogle and Robert W. Wedemeyer, JJ., joined.
T. WOODALL, PRESIDING JUDGE
order dismissing the late filed petition for post-conviction
relief, the post-conviction court made the following
This cause came on to be heard May 31, 2016, on the Petition
for Post-conviction Relief filed December 11, 2015, upon
preliminary consideration mandated by T.C.A. §
40-30-106, and the record as a whole,
FROM ALL OF WHICH THE COURT FINDS that after having examined
the technical record, the Court has determined that the
petition was clearly filed more than one year after the last
appellate action on petitioner's case, and therefore it
plainly appears that the petition has not been filed within
the statute of limitations of one year set forth in T.C.A.
§ 40-30-102, and should be dismissed.
The defendant was indicted for Murder in the Perpetration of
Robbery and Especially Aggravated Robbery in Shelby County
indictments 98-006751 and 98-06752. The following year, the
above-styled superceding [sic] indictments, 99-03924 and
99-03925, were returned charging him with these same
offenses, along with four other co-defendants. On April 22,
1999, he was convicted after a trial by jury of Murder First
Degree and Criminal Attempt: Especially Aggravated Robbery on
indictments 99-03924 and 99-03925. On March 15, 2000
indictments 98-006751 and 98-06752 were nolle prosequied. The
Court of Criminal Appeals affirmed his conviction on February
7, 2002, remanding one of the indictments for sentencing on
the Criminal Attempt: Especially Aggravated Robbery, finding
that this court should not have merged that conviction with
the Murder First Degree conviction, but should have sentenced
the defendant separately on that conviction. See State v.
Javon Webster, 81 S.W.3d 244 (Tenn. Crim. App. 2002).
After this court sentenced him to a concurrent sentence on
the second count, on August 12, 2002, the defendant filed a
petition for post-conviction relief on the two original
indictments, 98-006751 and 98-06752, which had been nolle
prosequied. That petition, styled P-26682, was assigned to
trial judge J. C. McLin for handling in Division IX of
Criminal Court, and was dismissed by him as filed outside the
statute of limitation[s] of one year by order dated October
3, 2002, as those two indictments had been disposed of on
March 26, 2000, more than two years prior to the
petition's being filed. This court has previously sent
the petitioner copies taken from that court jacket, P-26682,
of Judge McLin's order denying that petition and of the
envelopes used to mail that decision to the defendant and the
Office of the Attorney General in October of 2002, showing
that he had notice in 2002 of Judge McLin's dismissal. No
appeal was ever taken from Judge McLin's order of
dismissal, and no additional petition for post-conviction
relief was filed for the next 13 years. The petitioner did
file a pro se petition for writ of certiorari in
2010, however, using the correct indictment numbers, which
was denied by the Court of Criminal Appeals. In that opinion,
which is attached to this order, Judge [McMullen] clearly
stated that the petitioner "includes a case history for
case number 99-03924-25. That case history has no relation to
case number 98-06751-52." The petitioner still filed no
petition for post-conviction relief for the next 5 years.
The defendant was returned to Shelby County on indictments
99-03924 and 99-03925, and he was re-sentenced by this court
I, 2002. No appeal was ever taken from the Court of Criminal
Appeals decision affirming his convictions or this
court's sentence given him on October 1, 2002, and no
petition for post-conviction relief was filed on the
Defendant's convictions from the instant indictments,
99-03924 and ...