Larry C. Strong v. State of Tennessee ( 2005 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs May 11, 2005
LARRY C. STRONG v. STATE OF TENNESSEE
Direct Appeal from the Criminal Court for Davidson County
No. 2001-D-2333 Steve R. Dozier, Judge
No. M2004-02253-CCA-R3-PC - Filed June 8, 2005
The pro se petitioner, Larry C. Strong, appeals the dismissal of his petition for post-conviction relief
as time-barred, arguing that he should have been afforded an evidentiary hearing to present proof of
his timely filing of the petition. Following our review, we affirm the post-conviction court’s
summary dismissal of the petition.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
ALAN E. GLENN , J., delivered the opinion of the court, in which NORMA MCGEE OGLE and ROBERT
W. WEDEMEYER , JJ., joined.
Larry C. Strong, West Tennessee State Penitentiary, Henning, Tennessee, Pro Se.
Paul G. Summers, Attorney General and Reporter; Preston Shipp, Assistant Attorney General; Victor
S. Johnson, III, District Attorney General; and Pamela Anderson, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
FACTS and PROCEDURAL HISTORY
On November 30, 2001, the Davidson County Grand Jury indicted the petitioner on two
counts of rape of a child, a Class A felony. Pursuant to a negotiated plea agreement, the petitioner
pled guilty on August 15, 2002, to aggravated sexual battery, a Class B felony, in exchange for a
twelve-year sentence as a Range I offender and the dismissal of the second count of the indictment.
No direct appeal was filed in the case.
On July 3, 2003, the petitioner filed a petition for post-conviction relief. However, on
October 10, 2003, he voluntarily withdrew the petition. On July 7, 2004, almost two years after his
judgment became final, the petitioner refiled his petition for post-conviction relief. On August 18,
2004, the post-conviction court entered an order summarily dismissing the petition on the basis that
it was filed “well outside the applicable statute of limitations.” From this order, the petitioner now
appeals.
ANALYSIS
The petitioner contends on appeal that the post-conviction court erred in summarily
dismissing his petition without an evidentiary hearing. He asserts that the withdrawal of his original
petition occurred on October 10, 2004, as opposed to the October 10, 2003, date the post-conviction
court referenced in its order and that the post-conviction court therefore “applied the wrong dates”
in dismissing the petition as time-barred. Apparently operating under the belief that the one-year
statute of limitations began anew upon the withdrawal of his original petition, the petitioner asserts
that he had until October 10, 2005, to refile his petition.
The petitioner is mistaken. Initially, we note that the petitioner himself states in his “Motion
to Re-Open Post-Conviction Petition” that his “[p]reviously filed” petition for post-conviction relief
“was [s]tricken on October 10th, 2003.” Moreover, this document was apparently attached to the
petition for post-conviction relief filed on July 7, 2004, approximately three months before the date
the petitioner now claims his original petition was “stricken.” However, regardless of the date his
original petition was withdrawn, the petitioner’s July 7, 2004, petition for post-conviction is barred
by the one-year statute of limitations.
Under the Post-Conviction Procedure Act of 1995, a claim for post-conviction relief must
be filed “within one (1) year of the date of the final action of the highest state appellate court to
which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the
judgment became final, or consideration of such petition shall be barred.” Tenn. Code Ann. §
40-30-102(a) (2003). The statute contains a specific anti-tolling provision, stating:
The statute of limitations shall not be tolled for any reason, including any tolling or
saving provision otherwise available at law or equity. Time is of the essence of the
right to file a petition for post-conviction relief or motion to reopen established by
this chapter, and the one-year limitations period is an element of the right to file such
an action and is a condition upon its exercise.
Id. The statute also specifically provides that the voluntary withdrawal of a petition does not toll
the one-year statute of limitations. See id. § 40-30-109(c) (“The petitioner may withdraw a petition
at any time prior to the hearing without prejudice to any rights to refile, but the withdrawn petition
shall not toll the statute of limitations set forth in § 40-30-102.”).
Since no direct appeal was filed, the petitioner’s judgment became final on August 15, 2002,
and the one-year statute of limitations began to run on that date. The petitioner, therefore, had until
August 15, 2003, in which to file his post-conviction petition or to refile the petition following its
voluntary withdrawal. In this case, the petitioner’s voluntary withdrawal of the petition occurred
after the one-year statute of limitations had already run. Thus, his July 7, 2004, refiled petition was
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barred by the statute of limitations. See Cazes v. State, 980 S.W.2d 364, 365 n.2 (Tenn. 1998)
(noting that section 40-30-209(c) of the Post-Conviction Procedure Act of 1995, which replaced the
1990 Post-Conviction Procedure Act, provides that a petitioner may withdraw a petition at any time
prior to the hearing without prejudice to any rights to withdraw but is limited to the one-year statute
of limitations for the filing of a post-conviction petition).
In his brief, the petitioner claims he voluntarily withdrew the original petition upon the “ill
advice” of his post-conviction counsel. However, as the State points out, the petitioner does not
assert any grounds to support a tolling of the statute of limitations on due process grounds. It is well-
settled in Tennessee that a petitioner has no statutory or constitutional right to the effective assistance
of post-conviction counsel, see House v. State, 911 S.W.2d 705, 712 (Tenn. 1995), and the petitioner
does not claim any mental disability that rendered him unable either to manage his personal affairs
or to understand his legal rights and liabilities during the relevant period. See State v. Nix, 40
S.W.3d 459, 463 (Tenn. 2001).
CONCLUSION
We conclude that the one-year statute of limitations expired before the petitioner refiled his
petition for post-conviction relief. Accordingly, we affirm the post-conviction court’s summary
dismissal of the petition as time-barred.
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ALAN E. GLENN, JUDGE
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