Philander Butler v. State of Tennessee ( 2010 )


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  •         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
    AT JACKSON
    Assigned on Briefs June 2, 2010
    PHILANDER BUTLER v. STATE OF TENNESSEE
    Direct Appeal from the Criminal Court for Shelby County
    Nos. 88-08249, 90-04544, 90-06943   W. Otis Higgs, Jr., Judge
    No. W2010-00118-CCA-R3-PC - Filed November 2, 2010
    The petitioner, Philander Butler, pro se, appeals the summary dismissal of his petition for
    post-conviction relief for being filed after the statute of limitations had expired. On appeal,
    he argues that the post-conviction court erred in dismissing his petition before appointing
    counsel and conducting a hearing to determine the merits of his petition. After review, we
    affirm the summary dismissal of the petition for post-conviction relief.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
    J OHN E VERETT W ILLIAMS, J., delivered the opinion of the Court, in which D AVID H. W ELLES
    and C AMILLE R. M CM ULLEN, JJ., joined.
    Philander Butler, Memphis, Tennessee, Pro Se.
    Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel;
    William L. Gibbons, District Attorney General; and Nicole Germain, Assistant District
    Attorney General, for the appellee, State of Tennessee.
    OPINION
    The petitioner was convicted of multiple drug offenses in 1989 and 1990, following
    guilty pleas to drug possession charges. He was later convicted of federal crimes, and his
    state convictions were used to enhance his sentence. In August 2008, the petitioner sought
    habeas corpus relief for his 1989 and 1990 convictions. Relief was denied by the habeas
    corpus court and affirmed on appeal. See Philander Butler v. State, No. W2009-00451-
    CCA-R3-HC 
    2009 Tenn. Crim. App. LEXIS 968
    , at *1 (Tenn. Crim. App. Dec. 1, 2009).
    On November 24, 2009, the petitioner filed the instant petition for post-conviction relief and
    alleged that he was never informed by counsel or the trial court that he had a right to appeal
    his convictions and receive appointed counsel to contest the legality of his sentences. He
    argued that he should be entitled to a tolling of the statute of limitations because he was
    unaware that his prior convictions could be used to enhance his sentences for future
    convictions. The State filed a response asserting that the petition was barred by the one-year
    statute of limitations. The post-conviction court agreed with the State and dismissed the
    petition without a hearing.
    Analysis
    On appeal, the petitioner acknowledges that his petition was filed outside the one-year
    statute of limitations for post-conviction relief but argues that the statute of limitations should
    be tolled. The State argues that the trial court may summarily dismiss a petition for post-
    conviction relief if it falls outside the statute of limitations. We agree. Consideration of the
    petition for post-conviction relief is barred unless the petition is filed within one year of the
    final action of the highest appellate court to which an appeal is taken or, if no appeal is taken,
    within one year of the date on which the judgment became final. T.C.A. § 40-30-102(a).
    “The statue of limitations shall not be tolled for any reason, including any tolling or saving
    provision otherwise available at law or equity.” A court does not have jurisdiction to
    consider a post-conviction petition filed outside the one-year statute of limitations unless: (1)
    the claim is based on a final appellate court ruling establishing a constitutional right not
    recognized at the time of trial but given retroactive effect by the appellate court; (2) the claim
    is based upon new scientific evidence establishing that the petitioner is actually innocent; or
    (3) the claim is based upon sentences that were enhanced because of a previous conviction,
    and the previous conviction was subsequently found to be illegal. Id. § 40-30-102(b).
    Strict application of the statute of limitations may not deny a petitioner “a reasonable
    opportunity to assert a claim in a meaningful time and manner.” Seals v. State, 
    23 S.W.3d 272
    , 279 (Tenn. 2000). However, “a hearing on due process concerns is not required every
    time a petitioner alleges that the untimeliness of his petition is due to his trial or appellate
    counsel’s negligence” because to do so “‘is clearly inconsistent with the plain language of
    the post-conviction statue requiring a trial judge to summarily dismiss an untimely petition
    without . . . a hearing.’” Tyrice L. Sawyers v. State, No. M2007-02867-CCA-R3-PC, 
    2008 Tenn. Crim. App. LEXIS 1007
    , at *9 (Tenn. Crim. App. at Nashville, Dec. 31, 2008)
    (quoting Craig Robert Nunn v. State, No. M2005-01404-CCA-R3-PC, 2006 Tenn Crim. App.
    LEXIS 232, at *14 (Tenn. Crim. App. at Nashville, Mar. 17, 2006) (quoting Williams v.
    State, 
    44 S.W.3d 464
     (Tenn. 2001))).
    To determine if due process requires tolling of the statute of limitations, a court must
    weigh the petitioner’s interest in having an opportunity to present his claims in a meaningful
    time and manner against the State’s interest in preventing the litigation of stale and
    fraudulent claims. See Workman v. State, 
    41 S.W.3d 100
    , 103 (Tenn. 2001). More
    -2-
    specifically, a court should utilize the following analysis: (1) determine when the limitations
    period would normally have begun to run; (2) determine whether the grounds for relief
    actually arose after the limitations period would normally have commenced; and (3) if the
    grounds are “later-arising,” determine if, under the facts of the case, a strict application of
    the limitations period would effectively deny the petitioner a reasonable opportunity to
    present the claim. Sands v. State, 
    903 S.W.2d 297
    , 301 (Tenn. 1995).
    The petitioner compares his case to the petitioner in Williams v. State, 
    44 S.W.3d 464
    (Tenn. 2001). The Tennessee Supreme Court in Williams concluded that in some limited
    circumstances, due process might require that the statute of limitations for post-conviction
    relief be tolled if the misrepresentation of an attorney was shown to deprive a petitioner of
    a reasonable opportunity to seek post-conviction relief. The record in the instant case is
    absent of any such misrepresentation. Nothing in the record justifies a tolling of the statute
    of limitations; therefore, this petitioner is not entitled to relief.
    Conclusion
    Based on the foregoing and the record as a whole, we affirm the summary dismissal
    of the petition for post-conviction relief.
    _________________________________
    JOHN EVERETT WILLIAMS, JUDGE
    -3-
    

Document Info

Docket Number: W2010-00118-CCA-R3-PC

Judges: Judge John Everett Williams

Filed Date: 11/2/2010

Precedential Status: Precedential

Modified Date: 10/30/2014