Michael McVay v. State of Tennessee

02/11/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 6, 2022
MICHAEL MCVAY v. STATE OF TENNESSEE
Appeal from the Criminal Court for Shelby County
No. 10-02031 Carolyn W. Blackett, Judge
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No. W2021-00324-CCA-R3-PC
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The petitioner, Michael McVay, appeals the post-conviction court’s dismissal of his
petition for post-conviction relief, arguing the post-conviction court erred in finding his
petition untimely. Upon our review of the record, the applicable law, and the briefs of the
parties, we affirm the dismissal of the petition as barred by the one-year statute of
limitations.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
J. ROSS DYER, J., delivered the opinion of the court, in which CAMILLE R. MCMULLEN and
JILL BARTEE AYERS, JJ., joined.
Joseph McClusky, Memphis, Tennessee, for the appellant, Michael McVay.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Amy P. Weirich, District Attorney General; and Leslie Byrd, Assistant
District Attorney General, for the appellee, State of Tennessee.
OPINION
Facts and Procedural History
A Shelby County jury convicted the petitioner, Michael McVay, with rape of a
child, aggravated sexual battery, rape, and sexual battery by an authority figure. State v.
Michael McVay, No. W2011-02511-CCA-R3-CD, 2013 WL 1858626 (Tenn. Crim. App.
May 2, 2013), perm. app. denied (Tenn. Oct. 16, 2013). The trial court sentenced the
petitioner to serve 25 years for rape of a child, 20 years for aggravated sexual battery, 20
years for rape, and 10 years for sexual battery by an authority figure. Id. Additionally, the
trial court ordered all sentences to run consecutively, with a 100% release eligibility for the
first three counts – child rape, aggravated sexual battery, and rape, and a 35% release
eligibility for count four, sexual battery by an authority figure, for an effective sentence of
75 years in the Department of Correction. Id.On direct appeal, this Court affirmed the petitioner’s convictions and sentences in
Counts No. 1 (rape of a child), 3 (rape), and 4 (sexual battery by an authority figure), and
the trial court’s determination that all of the petitioner’s sentences should be served
consecutively based on the fact that he was convicted of two or more offenses involving
sexual abuse of a minor. Id. at *8. While this Court affirmed the petitioner’s conviction
in Count 2 for aggravated sexual battery, the Court vacated the petitioner’s sentence in that
count and “remanded for a new sentencing hearing in compliance with Tennessee Code
Annotated section 40-35-210 and Blakey v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159
L.Ed.2d 403 (2004).” Id. at *10.
On remand, the trial court sentenced the petitioner to statutory minimum of 12 years
for aggravated sexual battery. The amended judgment was entered by the trial court on
March 11, 2014. The petitioner did not appeal.
On December 3, 2019, the petitioner filed a pro se petition for post-conviction relief
as well as a “Motion to Toll the Statute of Limitations Based on Due Process Principles.”1
In response, the State filed a motion to dismiss, arguing the petition “falls outside the statute
of limitations and [the] petitioner has failed to establish sufficient grounds for tolling the
statute of limitations.” A hearing was held on February 25, 2021, during which the
petitioner offered no proof in support of his petition. After brief arguments by both post-
conviction counsel and the State, the post-conviction court dismissed the petition as barred
by the statute of limitations and determined due process did not require tolling of the
statute. This timely appeal followed.
Analysis
On appeal, the petitioner argues that “due process considerations require tolling of
the statute of limitations in this matter and that it was error to dismiss the matter before a
full hearing on the merits.” More specifically, the petitioner, relying on Antonio Oliver v.
1
The “Filed” stamp date on the petition for post-conviction relief is, at best, difficult to decifier.
Throughout the record, there are numerous dates referenced as the filing date for the petition for post-
conviction relief. According to the record, post-conviction counsel sent a letter to the petitioner on
November 19, 2019, stating that the petition had been reviewed, was enclosed, and was ready for filing.
Then, the “Filed” stamped date on the petition appears to read December 3, 2019. However, the State’s
response and the post-conviction court’s order state the petition was filed on January 29, 2020. Despite the
conflicting dates, we will consider the petition as filed on December 3, 2019.
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State,2 insists his trial counsel unilaterally terminated his representation of the petitioner
without notifying the petitioner and “never told [the] [p]etitioner about post-conviction.”
The State contends the petitioner failed to meet his burden by failing to offer any proof
during the hearing and, unlike in Antonio Oliver, the petitioner failed to diligently pursue
his rights. Additionally, the State notes the that petitioner’s ignorance of post-conviction
procedures does not allow for the tolling of the statute of limitations. Upon our review of
the record and the applicable law, we agree with the State.
The Post–Conviction Procedure Act states the following:
[A] person in custody under a sentence of a court of this state must petition
for post-conviction relief under this part 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 the petition shall be barred.
Tenn. Code Ann. § 40-30-102(a). Pursuant to Tennessee Code Annotated section 40-30-
102(b), a court does not have jurisdiction to consider a petition for post-conviction relief
filed outside the one-year statute of limitations unless “[t]he claim in the petition 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[,]” “[t]he claim in the petition is based upon new scientific evidence establishing
that the petitioner is actually innocent of the offense or offenses for which the petitioner
was convicted[,]” or the petitioner “seeks relief from a sentence that was enhanced because
of a previous conviction and the 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[.]” Tenn. Code Ann. § 40-30-102(b).
Tennessee courts “have previously recognized that in certain circumstances, strict
application of the statute of limitations would deny a defendant a reasonable opportunity
to bring a post-conviction claim and thus, would violate due process.” Williams v. State,
44 S.W.3d 464, 468 (Tenn. 2001). When a petitioner fails to timely file a petition for post-
conviction relief due to circumstances outside of his control, due process requires tolling
of the statute of limitations. Id. at 468-69. Due process concerns may toll the statute of
limitations when the petitioner is mentally incompetent or if the petitioner’s trial counsel
misrepresented to the petitioner that trial counsel was still representing the petitioner,
thereby precluding the petitioner from filing a pro se petition for post-conviction relief.
Id. at 469 (citing Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000)). Additionally, “in
2
No. W2009-02113-CCA-R3-PC, 2011 WL 4432884 (Tenn. Crim. App. Sept. 23, 2011), no perm.
app. filed.
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certain circumstances, due process prohibits the strict application of the post-conviction
statute of limitations to bar a petitioner’s claim when the grounds for relief, whether legal
or factual, arise after the ‘final action of the highest state appellate court to which an appeal
is taken’ – or, in other words, when the grounds arise after the point at which the limitations
period would normally have begun to run.” Sands v. State, 903 S.W.2d 297, 301 (Tenn.
1995) (quoting Tenn. Code Ann. § 40-30-102(a)); see also Burford v. State, 845 S.W.2d
204, 210 (Tenn. 1992).
“A petitioner is entitled to due process tolling upon a showing (1) that he or she has
been pursuing his or her rights diligently, and (2) that some extraordinary circumstance
stood in his or her way and prevented timely filing.” Whitehead v. State, 402 S.W.3d 615,
631 (Tenn. 2013) (citing Holland v. Florida, 560 U.S. 631, 649 (2010)). A petitioner can
establish the second prong of this test “when the [petitioner]’s attorney of record abandons
the [petitioner] or acts in a way directly adverse to the [petitioner]’s interests, such as by
actively lying or otherwise misleading the [petitioner] to believe things about his or her
case that are not true.” Id. Additionally, establishing that he has pursued his rights
diligently “does not require a [petitioner] to undertake repeated exercises in futility or to
exhaust every imaginable option, but rather to make reasonable efforts[.] Moreover, the
due diligence inquiry is an individualized one that must take into account the conditions of
confinement and the reality of the prison system.” Id. (citing Downs v. McNeil, 520 F.3d
1311, 1323 (11th Cir. 2008)) (internal quotation marks omitted).
Here, while the petitioner claims trial counsel unilaterally abandoned him after the
resentencing hearing, the petitioner offered no evidence during the post-conviction hearing
to support his claim, including failing to testify himself. Rather, the petitioner simply relied
on the statement of post-conviction counsel. Despite the lack of proof, the petitioner,
relying on Antonio Oliver, contends he is entitled to tolling of the statute of limitations.
However, as argued by the State, the instant matter is distinguishable from Antonio Oliver.
In Antonio Oliver v. State, Oliver was convicted of first-degree murder and
sentenced to life in prison. Antonio Oliver, No. W2009-02113-CCA-R3-PC, 2011 WL
4432884, at *1. His conviction and sentence were affirmed by this Court on direct appeal;
however, no Rule 11 application was filed with the Tennessee Supreme Court. Id.Fourteen months after the expiration of the statute of limitations, Oliver filed a petition for
post-conviction relief. Id. During the hearing, Oliver’s trial counsel admitted he had
contracted with Oliver to represent him at the motion for new trial, on appeal to this Court,
and on appeal to the Tennessee Supreme Court. Id. at *1-2. In granting Oliver relief in
the form of a delayed appeal, this Court, relying on trial counsel’s testimony concerning
his contractual obligations, determined that trial counsel had effectively abandoned
Oliver’s appeal. Id. at *5.
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The petitioner’s circumstances in the instant matter can be distinguished from the
Antonio Oliver. First, unlike in Antonio Oliver, the petitioner in the instant matter failed
to offer any proof, including his own testimony, concerning the contractual relationship
with retained counsel. The record before us is void of any proof counsel had agreed to
represent the petitioner beyond the initial appeal and resentencing hearing. Furthermore,
the petitioner has also failed to establish he had a meritorious claim to raise on an appeal
after the resentencing hearing. As noted supra, this Court affirmed the petitioner’s
classification as a Range II offender and the imposition of consecutive terms during the
initial appeal. Michael McVay, No. W2011-02511-CCA-R3-CD, 2013 WL 1858626, at
*10. Then at the resentencing hearing, the trial court sentenced the petitioner to the
statutory minimum. Thus, the petitioner had no appealable issues after the resentencing
hearing. Finally, unlike in Antonio Oliver, the petitioner in the instant matter failed to
diligently pursue his rights. The amended judgment in this case was entered on March 11,
2014, meaning he had until March 11, 2015, to file his petition for post-conviction relief.
However, the petitioner made no effort to pursue post-conviction relief until he filed his
petition on December 3, 2019 – four years and eight plus months after the expiration of the
statute of limitations.
Accordingly, the petitioner has failed to establish that he was abandoned by trial
counsel and that he was prohibited from timely filing his petition for post-conviction relief
by circumstances outside of his control. Because the petition is untimely and due process
considerations do not require tolling of the statute of limitations, the post-conviction court
properly dismissed the petition as time-barred.
Finally, the petitioner insists he is entitled to due process tolling of the statute of
limitations because trial counsel failed to inform him about his right to seek post-conviction
relief. However, this Court has routinely rejected a claim for due process tolling based on
allegations that a petitioner’s trial counsel did not advise him about the right to seek post-
conviction relief or the method by which to do so. See Don Edward Carter v. State, No.
W2018-00285-CCA-R3-PC, 2018 WL 6266166, at *3 (Tenn. Crim. App. Nov. 30, 2018),
perm. app. denied (Tenn. March 28, 2019) (citing Joseph Nelson v. State, No. W2012-
02234-CCA-R3-PC, 2013 WL 6001955, at *4 (Tenn. Crim. App. Nov. 12, 2013)).
Similarly, this Court has said that a petitioner’s ignorance of the existence of the statute of
limitations, even if the ignorance resulted from an attorney’s negligence in advising the
petitioner, does not toll the statute of limitations. Id. (citing State v. Phillips, 904 S.W.2d
123, 124 (Tenn. Crim. App. 1995)). The petitioner has not shown the post-conviction court
erred in dismissing his claim based upon the lack of advice from trial counsel and is,
therefore, not entitled to relief.
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Conclusion
Based on the foregoing authorities and reasoning, we affirm the judgment of the
post-conviction court.
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J. ROSS DYER, JUDGE
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