STATE OF TENNESSEE v. JAMES ANDREW WEIDEKAMP

04/12/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs December 9, 2020
STATE OF TENNESSEE v. JAMES ANDREW WEIDEKAMP
Appeal from the Criminal Court for Putnam County
Nos. 13-CR-0772, 14-CR-0231, 14-CR-0232, 14-CR-0772
Wesley Thomas Bray, Judge
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No. M2020-00736-CCA-R3-PC
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The Petitioner, James Andrew Weidekamp, appeals the summary denial of his petition for
post-conviction relief, asserting that due process considerations should toll the statute of
limitations. After review, we affirm the denial of the petition as time-barred.
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 JOHN EVERETT WILLIAMS,
P.J., and CAMILLE R. MCMULLEN, J., joined.
James Andrew Weidekamp, Mountain City, Tennessee, Pro Se.
Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Assistant
Attorney General; Bryant C. Dunaway, District Attorney General; and Beth Willis,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
On September 18, 2014, the Petitioner entered into a plea agreement in which he
pled guilty to three counts of aggravated burglary and one count of attempted introduction
of contraband into a penal facility in exchange for an effective sentence of eleven years,
resolving fourteen cases against him. At the plea hearing, the State set out the factual basis
for the pleas as follows:
[I]n Case No. 13-0772, [the Petitioner] broke into his father’s home and stole
two weapons. Those weapons were later located that had been pawned by
the [Petitioner]. There’s a pawn ticket in the file. He was eventually
interviewed by a detective with the Putnam County Sheriff’s Department and
confessed to doing that.
In Case N[o]. 14-CR-231, broke into another home belonging to a
Doug Massa. He also stole two guns there. He was later interviewed and
confessed to breaking into that home as well.
In 14-CR-232, the victim was a Craig Allen. He broke into a home, a
number of items were taken. Sparta Police Department [o]fficers located
him, along with another subject, at a pawn shop there trying to pawn the
items that were taken from this burglary and there was a video of that
transaction where you could see the items actually where we could verify
those as the items taken from this home.
While waiting to resolve all these cases, [the Petitioner] was a prisoner
here in the Putnam County Jail. A situation occurred, we had a preliminary
hearing I believe last week, where they received some information that a
possible contraband attempt was going to take place. Officers set up to
investigate the matter in the cell that [the Petitioner] was locked down in by
himself. They located a hole in the wall or the window and he, along with
another individual, tried to introduce some marijuana and also some tobacco
through a long string of either plastic baggies or long line of broken sheets
or torn up sheets.
At the plea hearing, the Petitioner acknowledged the evidence against him and
averred that he was pleased with the resolution of the cases.
The Petitioner filed a petition for post-conviction relief on February 24, 2020. In
his petition, the Petitioner asserted that he was entitled to due process tolling of the statute
of limitations because he did not receive his case file from counsel until October 21, 2019,
despite his numerous letters to counsel requesting such over the years. He asserted that
“[u]nder the Whitehead[ v. State, 402 S.W.3d 615, 631 (Tenn. 2013),] analysis, there can
be no doubt that [the Petitioner] had been diligent in his attempts to obtain his file and
transcripts from [counsel].”
As to the claims raised in his petition, the Petitioner argued that his pleas were not
knowing and voluntary because counsel never showed him any of the discovery from the
State; did not present all of the plea offers from the State to him or convey his counteroffer
to the State; and he was under the influence of Zoloft during the plea hearing.
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On March 5, 2020, the post-conviction court denied the petition, finding that it was
not timely filed and therefore barred by the statute of limitations. In the order, the post-
conviction court directed that “[i]n compliance with T.C.A. § 40-30-112, the Clerk of the
Court shall send a copy of this final judgment to the Petitioner’s attorney, any authority
imposing restraint on the Petitioner, and the Attorney General and Reporter in Nashville.”
ANALYSIS
The Petitioner first requests this court to waive the untimely filing of his notice of
appeal, which should have been filed “within 30 days after the date of entry of the judgment
appealed from.” Tenn. R. App. P. 4(a). In this case, the notice of appeal should have been
filed by April 4, 2020. However, the Petitioner contends that he did not receive a copy of
the court’s order denying his petition, noting that the order did not specifically name him
as a recipient, until after his mother contacted the court clerk on or about April 30, 2020
and he then received a copy by mail on May 4, 2020. He deposited his notice of appeal in
the prison mail system on May 14, 2020, and it was deemed filed with the appellate court
clerk on May 18, 2020.
We are disinclined to determine that the interests of justice necessitate waiver of the
timely filing of the notice of appeal document as the “authority imposing restraint on the
Petitioner,” i.e., the prison, was to receive a copy of the order and presumably would have
notified the Petitioner of such. Moreover, after receiving a copy of the order, the Petitioner
waited ten more days before mailing his notice of appeal, without any explanation for the
delay. Furthermore, the Petitioner had no disputes with the State’s recitation of the
evidence against him at the plea hearing, which included confessions by him and video
proof. In any event, as we will address below, we conclude that the post-conviction court
did not err in denying the petition for post-conviction relief as time-barred.
The Petitioner acknowledges that his petition was filed outside the one-year statute
of limitations, approximately five and a half years after his judgments became final, but he
argues that he is entitled to due process tolling of the statute of limitations pursuant to
Whitehead, 402 S.W.3d 615.
Under the Post-Conviction Procedure Act, 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 the petition shall be barred.”
Tenn. Code Ann. § 40-30-102(a).
The post-conviction statute contains a specific anti-tolling provision:
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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 the action and is a condition upon its exercise.
Except as specifically provided in subsections (b) and (c), the right to file a
petition for post-conviction relief or a motion to reopen under this chapter
shall be extinguished upon the expiration of the limitations period.
Id.Subsection (b) of the statute sets forth the three narrow exceptions under which an
untimely petition may be considered but notes that absent an exception, “No court shall
have jurisdiction to consider a petition filed after the expiration of the limitations period[.]”
Limited statutory exceptions and the principles of due process may, in very limited
circumstances, require the tolling of the one-year statute of limitations. See Seals v. State,
23 S.W.3d 272 (Tenn. 2000); Burford v. State, 845 S.W.2d 204 (Tenn. 1992). When a
petitioner seeks tolling of the limitations period on the basis of due process, however, he is
obliged “to include allegations of fact in the petition establishing . . . tolling of the statutory
period,” and the “[f]ailure to include sufficient factual allegations . . . will result in
dismissal.” State v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001).
“Issues regarding whether due process require[s] the tolling of the post-conviction
statute of limitations are mixed questions of law and fact and are, therefore, subject to de
novo review.” Whitehead, 402 S.W.3d at 621. In Whitehead, our supreme court identified
three circumstances that allow for equitable tolling: 1) when the claim for relief arises after
the statute of limitations has expired; 2) when a petitioner’s mental incapacities prevent the
petitioner from filing prior to the expiration of the statute of limitations; and 3) when
attorney misconduct necessitates the tolling of the statute of limitations. Whitehead, 402,
S.W.3d at 620-21.
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.” Bush v. State, 428 S.W.3d 1, 22
(Tenn. 2014) (citing Whitehead, 402 S.W.3d at 631). Regarding the first prong of the
analysis, the court stated that “pursuing one’s rights diligently ‘does not require a prisoner
to undertake repeated exercises in futility or to exhaust every imaginable option, but rather
to make reasonable efforts [to pursue his or her claim].’” Id. (quoting Whitehead, 402
S.W.3d at 631). “[T]he second prong is met when the prisoner’s attorney of record
abandons the prisoner or acts in a way directly adverse to the prisoner’s interests, such as
by actively lying or otherwise misleading the prisoner to believe things about his or her
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case that are not true.” Whitehead, 402 S.W.3d at 631. The Tennessee Supreme Court
emphasized that, “‘[i]n every case in which we have held the statute of limitations is tolled,
the pervasive theme is that circumstances beyond a petitioner’s control prevented the
petitioner from filing a petition for post-conviction relief within the statute of limitations’
. . . [which still] holds true today.” Id. at 634 (quoting Smith, 357 S.W.3d at 358) (emphasis
in original). Importantly, due process tolling “‘must be reserved for those rare instances
where – due to circumstances external to the party’s own conduct – it would be
unconscionable to enforce the limitation period against the party and gross injustice would
result.’” Bush, 428 S.W.3d at 22 (quoting Whitehead, 402 S.W.3d at 631-32).
The Petitioner has not met the standard set out in Whitehead for due process tolling
of the statute of limitations. Even assuming he wrote multiple letters to counsel in an effort
to obtain his file, having one’s case file is not a perquisite to the filing of a post-conviction
petition. See Alexander R. Carino v. State, No. E2018-00775-CCA-R3-PC, 2018 WL
5780231, at *5 (Tenn. Crim. App. Nov. 2, 2018), perm. app. denied (Tenn. Feb. 20, 2019)
(noting that “[t]he Petitioner’s case file is not a condition precedent to his filing of his
petition for post-conviction relief.”); Charles Brenden Davis v. State, No. M2016-02512-
CCA-R3-PC, 2017 WL 2257704, at *4 (Tenn. Crim. App. May 23, 2017) (observing that
“even if the Petitioner had not received his case file by the deadline for filing his post-
conviction petition, the Petitioner could have timely filed his post-conviction petition
before his case file arrived and later amended the petition.”). In addition, the Petitioner
does not allege that counsel actively lied to or misled him as did the petitioner in
Whitehead. Furthermore, the Petitioner does not offer an explanation for the four-month
delay between the time he received his file in October 2019 and when he filed his petition
in February 2020. This simply is not one of “those rare instances where—due to
circumstances external to the party’s own conduct—it would be unconscionable to enforce
the limitation period against the party and gross injustice would result.’” Whitehead, 402
S.W.3d at 631-32.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the post-conviction
court’s denial of the petition as time-barred.
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ALAN E. GLENN, JUDGE
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