Bradley Cox v. State of Tennessee ( 2018 )

03/06/2018
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs February 6, 2018
BRADLEY COX v. STATE OF TENNESSEE
Appeal from the Circuit Court for Henderson County
No. 17-065-1 Roy B. Morgan, Jr., Judge
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No. W2017-00530-CCA-R3-PC
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The 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 Criminal Appeals.
Tenn. 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
J. ROSS DYER, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS
and CAMILLE R. MCMULLEN, JJ., joined.
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 Tennessee.
MEMORANDUM OPINION
A 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.
The 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.
The post-conviction court dismissed the petition without a hearing on February 21,
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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 limitations.
On 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
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Our review of the record reveals the post-conviction court signed the order in February
13, 2017, but it was not stamped “filed” by the clerk’s office until February 21, 2017. Further,
counsel for the State mailed the petitioner a copy of the order denying his petition for post-
conviction relief on February 10, 2017. Pursuant to statements made by the petitioner in his
notice of appeal, he received this order February 13, 2017.
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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).
On 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).
A 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 mental incompetence
prevents timely filing of a petition, and situations where attorney misconduct prevents the
timely filing of a petition. Whitehead v. State, 402 S.W.3d 615, 623 (Tenn. 2013).
The petitioner admits his petition for post-conviction relief filed February 8, 2017,
was filed outside of the one-year statute of limitations. The petition did not include any
factual allegations requiring due process to toll of this statute of limitations.
Accordingly, the post-conviction court properly dismissed the petition as untimely. The
petitioner is not entitled to the relief sought herein.
When an opinion would have no precedential value, this Court may affirm by
memorandum opinion the judgment or action of the post-conviction court when the
judgment was rendered or the action was taken in a proceeding without a jury and such
judgment or action was not a determination of guilt, and the evidence does not
preponderate against the finding of the post-conviction court. See Tenn. Ct. Crim. App.
R. 20. We conclude that this case satisfies the criteria of Rule 20. The judgment of the
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post-conviction court, therefore, is affirmed in accordance with Rule 20 of the Rules of
the Court of Criminal Appeals.
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J. ROSS DYER
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