Rudy Wendell Myers v. State ( 2000 )

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
FILED
March 14, 2000
FEBRUARY 2000 SESSION
Cecil Crowson, Jr.
Appellate Court Clerk
)
RUDY WENDELL MYERS, ) C.C.A. No. M1999-00498-CCA-R3-PC
Appellant, )
) Franklin County
vs. )
) Hon. J. Curtis Smith, Judge
)
STATE OF TENNESSEE, ) (Post-Conviction: Murder - first degree,
Appellee. ) Assault with intent to murder, Armed
) robbery)
FOR THE APPELLANT: FOR THE APPELLEE:
RUDY WENDELL MYERS (pro se) PAUL G. SUMMERS
Rt. 4, Box 600 Attorney General & Reporter
Pikeville, TN 37367
MARVIN E. CLEMENTS, JR.
Asst. Attorney General
425 Fifth Ave. North
Nashville, TN 37243-0493
JAMES M. TAYLOR
District Attorney General
STEVEN M. BLOUNT
Asst. District Attorney General
1002 West Main St.
Decherd, TN 37324
OPINION FILED:________________
AFFIRMED
JAMES CURWOOD WITT, JR., JUDGE
OPINION
The defendant, Rudy Wendell Myers, appeals from the dismissal of
his third post-conviction petition by the Franklin County Circuit Court. In 1984 the
defendant pleaded guilty to felony murder, assault with intent to commit first degree
murder with bodily injury occurring to the victim, and armed robbery. He was
sentenced to consecutive life sentences for each of the offenses. He did not
directly appeal his convictions. In 1989 this court affirmed the denial of his first
post-conviction petition. See State v. Rudy Wendell Myers, Franklin County No. 88-
116-III (Tenn. Crim. App., Nashville, June 29, 1989), perm app. denied (Tenn. 1989)
(Myers I). In 1992 the petitioner filed a second post-conviction petition which was
subsequently summarily dismissed for being time-barred. See Rudy Wendell Myers
v. State, No. 01C01-9308-CC-00270 (Tenn. Crim. App.,Jackson, Jan. 20, 1994),
perm app. denied (Tenn. 1994) (Myers II). In 1999 the petitioner filed this, his third
post-conviction petition, in which he states a number of grievances, including
involuntary and incompetent guilty plea, approximately 30 claims of ineffective
assistance of counsel, defective indictment, unconstitutionality of proscriptive
criminal statutes, the state’s failure to disclose exculpatory evidence, systematic
exclusion of females and black persons from the grand jury, judicial bias, prejudicial
pretrial publicity, and excessive sentences. He claims that the statute of limitations
is tolled on these post-conviction claims because of his mental impairment. He now
appeals the trial court’s summary dismissal of his petition. Following a review of the
record and the briefs of the parties, we affirm the trial court's judgment.
This case began in 1983 when the petitioner and his co-defendant,
Kevin Watley, attacked Majorie Fults as she returned home from her family store
one evening. The two masked men bound and gagged Ms. Fults and waited for her
husband, Chester Fults, and her son, Ricky Fults, who were on their way home. Mr.
Fults entered his home, followed by his son. As Ricky Fults passed through the
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door, someone told him to “halt,” and he was struck in the back. He was then shot
in the arm. As he slumped over, he saw his father shot with a shotgun and one of
the attackers going through his father’s belongings. He passed out, and when he
awoke, the attackers were gone, along with the car his mother had been driving.
Nine days after the murder, the petitioner contacted the police and
confessed to the offenses. He led the police to the location where the money and
guns were hidden. He was indicted for first degree murder of Mr. Fults, felony
murder of Mr. Fults, assault with intent to commit first degree murder with bodily
injury to Ricky Fults, assault with intent to commit first degree murder with a deadly
weapon to Mrs. Fults, and armed robbery of Mrs. Fults. A few weeks before his co-
defendant’s trial the petitioner wrote a letter to the local paper in which he stated
that he had converted his religion, that he wanted to get right with his God, and that
he wanted to tell young people about the horrors of drugs. He essentially confessed
in the letter.
In exchange for the state not seeking the death penalty, the petitioner
agreed to testify at his co-defendant’s trial and to plead guilty to the charges for
felony murder, assault with intent to murder Ricky Fults, and armed robbery. He
also agreed to consecutive life sentences for these offenses.
In the petitioner’s first post-conviction proceeding (Myers I), he alleged
ineffective assistance of counsel in that he claimed his counsel did not
communicate with him, did not pursue the defense of insanity or diminished
capacity, and did not explain the meaning of consecutive sentences. After an
evidentiary hearing, the Myers I post-conviction court found that the petitioner’s trial
counsel exhaustively investigated and prepared the case and examined the
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possibility of a defense based upon insanity, mental incompetency, or mental health
limitations. The Myers I court denied the petition.
In the case at bar, the trial court dismissed the petitioner’s post-
conviction petition without holding an evidentiary hearing. The trial court found that
the petition was filed outside the statute of limitations.
The petition alleges that Myers "has never been competent in this
cause to raise any of his claims for relief, nor was Petitioner psychologically sound
at the time of his convictions and sentences." The petition further alleges that he
has a “history of psychological illness, and a proper investigation would reveal this.”
The petitioner says he suffers from "psychological and neurological brain damage"
and that both he and his family have a history of mental illness.
The petition alleges that Myers has sustained numerous head injuries,
has a childhood history of abusing inhalants, experiences "radical mood and
delusional disorders, . . . extreme depression, . . . loss of memory, an inability to
recall even recent events, . . . [and] has difficulty with thinking abstractly." The
petition further alleges that upon motion of his trial counsel before he pleaded guilty,
the trial court ordered a physical and mental examination and that this examination
did not meet the standard of care for a forensic evaluation. A letter documenting
the results of the court-ordered examination are attached to the petition as an
exhibit. Also attached to the petition is a report of an evaluation, performed in 1996
by the petitioner’s expert, which concludes that the previous letter, which was
addressed to the trial court, “does not meet the standard of care for a psychological
assessment pertinent to mental state at the time the crime was committed.” The
petition alleges that the evaluation of the first letter is new evidence which was not
previously raised and was not capable of being “discovered by a lay person such
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as [the petitioner].” The petition makes only passing reference to petitioner’s first
post-conviction petition and claims that it “illustrates the confusion and
misunderstanding Petitioner had regarding his pleas and the resulting sentences.”
A trial court's initial review of a post-conviction petition is pursuant to
Code section 40-30-206, which provides that the trial court shall consider the factual
allegations to be true in determining whether the petition shall be dismissed. See
Tenn. Code Ann. § 40-30-206(f) (1997). The trial court must "examine [the petition]
together with all the files, records, transcripts, and correspondence relating to the
judgment under attack." Tenn. Code Ann. § 40-30-206(a) (1997). Furthermore, the
petitioner must rebut the presumption that claims have either been waived or
previously determined. Id.; see also Harris v. State, 996 S.W.2d 840, 841 (Tenn.
Crim. App. 1999).
The petitioner pleaded guilty in 1984, and he did not make a direct
appeal. The statute of limitations for filing a post-conviction petition expired on July
1, 1989. See Abston v. State, 749 S.W.2d 487 (Tenn. Crim. App. 1988). In
Watkins v. State, 903 S.W.2d 302 (1995), our state's highest court held that the
saving statute found at Code section 28-1-106 operated to toll the statute of
limitations where the post-conviction petitioner was "at the time the cause of action
accrued . . . of unsound mind." Watkins, 903 S.W.2d at 304-05 (quoting from Tenn.
Code Ann. § 28-1-106 (1980)). The petition at issue in Watkins was filed before the
Post-Conviction Procedure Act of 1995. Of significance to the petitioner, the
Watkins court further determined that due process would be offended by application
of the statute of limitations in the case of mental incompetence. Watkins, 903
S.W.2d at 305-06.
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The Post-Conviction Procedure Act of 1995 provides a one-year
statute of limitations. Tenn. Code Ann. § 40-30-202(a) (1997). Limited exceptions
are prescribed; however, no exception addresses the effect of mental incompetence
on the limitations period. See Tenn. Code Ann. § 40-30-202(b) (1997). The Act
further provides, "The statute of limitations shall not be tolled for any reason,
including any tolling or saving provision otherwise available at law or equity." Tenn.
Code Ann. § 40-30-202(a) (1997).
Under the 1995 Act, the "anti-tolling" provision defeats the operation
of the savings statute. See Tenn. Code Ann. § 40-30-202(a) (1997) ("anti-tolling");
Tenn. Code Ann. § 28-1-106 (1980) (savings). However, the anti-tolling provision
has no operation against constitutional principles. John Paul Seals v. State, No.
03C01-9802-CC-00050, slip op. at 5 (Tenn. Crim. App., Knoxville, Jan. 6, 1999),
perm. app. granted (Tenn. 1999); Vikki Lynn Spellman v. State, No. 02C01-9801-
CC-00036, slip op. at 4 (Tenn. Crim. App., Jackson, Aug. 21, 1998), perm. app.
granted (Tenn. 1999). Thus, the portion of the Watkins holding which recognizes
a due process right to tolling of the statute of limitations remains viable in the face
of the Post-Conviction Procedure Act of 1995. Accordingly, Myers’ petition must be
evaluated consistently with the due process holding of Watkins.
We, turn then, to the question of whether the petitioner has stated a
cognizable claim for tolling under Watkins. In this inquiry, we find State v. Ralph
Dean Purkey, No. 03C01-9902-CC-00082 (Tenn. Crim. App., Knoxville, Dec. 17,
1999), instructive. In Ralph Dean Purkey, the post-conviction petitioner filed an
untimely petition and sought to avoid the bar of the 1995 statute of limitations via
Watkins by claiming “psychological dysfunction and illness as a result of apparent
psychological and neurological brain damage,” and “radical mood swings, extreme
depression, loss of memory, . . . an inability to recall even with [sic] recent events,
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. . . poor judgment, and has difficulty thinking abstractly.” Id., slip op. at 4-5. He
alleged that his “psychological disability and incompetency” made him “incapable
of maintaining these proceedings . . . or of protecting his own constitutional rights.”
Id., slip op. at 5. This court affirmed the dismissal of Purkey’s petition. The court
applied the civil standard of incompetency by requiring that, in order to toll a post-
conviction statute of limitations, the petitioner’s condition must be “‘of such a nature
as to show him unable to manage his personal affairs or estate, or to comprehend
his legal rights or liabilities.’” Id., slip op. at 5 (citations omitted). As such, the court
reasoned, “[m]ental incompetence for tolling purposes does not simply equate with
mental illness.” Id., slip op. at 6. The court concluded that Purkey did not allege,
except by conclusory allegations, the level of incompetency required to toll the
statute of limitations. Moreover, he did not show the required incompetency “over
the period of time needed to make his present petition viable,” despite his
conclusory allegations to the contrary. Id., slip op at 6.
In the present case, we view the petitioner’s allegations in the same
light and conclude that he has not demonstrated an incompetence which would toll
the running of the statute of limitations.
Furthermore, we hold that, even if the statute of limitations did not bar
the petition, it is nevertheless barred by the one-petition rule of Code section 40-30-
202(c), which provides that, after one petition for post-conviction relief has been
decided on the merits, “any second or subsequent petition shall be summarily
dismissed.” Tenn. Code Ann. § 40-30-202(c) (1997). In Myers I, the post-
conviction court appointed counsel and held an evidentiary hearing in which the
petitioner attacked his guilty plea and probed his mental condition at the time of his
conviction via his claim that his counsel had deficiently represented him in not
communicating with and informing him and in not obtaining and using evidence of
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mental health issues. The Myers I petition was disposed of on the merits, and thus
the present petition is barred by section 40-30-202(c). This court has held that the
bar of section 40-30-202(c) applies to a petition filed under the 1995 Act, even
though the preceding petition was filed and disposed of on the merits prior to the
effective date of the 1995 Act. Eugene Kerrent v. State, No. 02C01-9809-CC-
00288 (Tenn. Crim. App., Jackson, May 25, 1999) (Rule 20 Order summarily
affirming dismissal of petition); Robert Lee Taylor v. State, No. 02C01-9805-CC-
00161 (Tenn. Crim. App., Jackson, Aug. 12, 1998) (Rule 20 Order summarily
affirming dismissal of petition); Lawrence Allen Hodge v. State, No. 03C01-9708-
CR-00332 (Tenn. Crim. App., Knoxville, June 3, 1998), perm. app. denied (Tenn.
1998).
We do not believe that the one-petition bar runs afoul of Watkins. The
crux of our supreme court’s due process ruling in Watkins is that the post-conviction
petitioner should be given “an opportunity for the presentation of claims at a
meaningful time and in a meaningful way.” Watkins, 903 S.W.2d at 306 (emphasis
added) (quoting Burford v. State, 845 S.W.2d 204, 208 (Tenn. 1992)). Application
of the one-petition rule has not denied the petitioner this opportunity. His petition
in Myers I resulted in the appointment of counsel and an evidentiary hearing. Myers
II, slip op. at 2, n.2. The Myers I post-conviction court found that trial counsel had
painstakingly and exhaustively explored the petitioner’s mental condition. Even
though the issue before the Myers I court was trial counsel’s effective assistance in
not pursuing an insanity defense or a diminished capacity strategy, the hearing shed
light upon the petitioner’s condition both at the time of conviction and the time of the
Myers I hearing. Moreover, the thrust of the petition in Myers I was to attack the
guilty plea. See Myers I, slip op. at 2. On the facts of this case, the petitioner has
had a meaningful opportunity to present his post-conviction claims.
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The case at bar is distinguishable from the cases of John Paul Seals
and Vikki Lynn Spellman. Although each petitioner in those cases had filed a prior
post-conviction petition, in neither case was the previous petition reviewed on its
merits. However, Myers has been afforded, through counsel, an “opportunity to
challenge his conviction in a meaningful time and manner” with his first petition.
Watkins, 903 S.W.2d at 306. Accordingly, we conclude that due process has not
been violated in petitioner’s case.
Finally, we conclude that the petitioner is not eligible to reopen his
original petition. After a prior first petition has been decided on its merits, a
petitioner may move to reopen the proceeding under limited circumstances. See
Tenn. Code Ann. §§ 40-30-202(c), -217(a) (1997). In pertinent part, Code section
40-30-217(a) provides that a petitioner may reopen a post-conviction petition only
on one of the following conditions:
(1) The claim in the motion is based upon a final ruling of an
appellate court establishing a constitutional right that was not
recognized as existing at the time of trial, if retrospective application
of that right is required. . . . or
(2) The claim in the motion is based upon new scientific
evidence establishing that such petitioner is actually innocent of the
offense or offenses for which the petitioner was convicted; or
(3) The claim asserted in the motion seeks relief from a
sentence that was enhanced because of a previous conviction and
such conviction in the case in which the claim is asserted was not a
guilty plea with an agreed sentence, and the previous conviction has
subsequently been held to be invalid, in which case the motion must
be filed within one (1) year of the finality of the ruling holding the
previous conviction to be invalid; and
(4) It appears that the facts underlying the claim, if true, would
establish by clear and convincing evidence that the petitioner is
entitled to have the conviction set aside or the sentence reduced.
Tenn. Code Ann. § 40-30-217(a) (1997). The petitioner has not alleged, nor do we
discern, any circumstances that would permit him to reopen his prior petition under
Code section 40-30-217(a).
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Accordingly, the judgment of the trial court dismissing the petition is
affirmed.
________________________________
JAMES CURWOOD WITT, JR., JUDGE
CONCUR:
_______________________________
JOE G. RILEY, JUDGE
_______________________________
THOMAS T. WOODALL, JUDGE
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