ZOLOFT Withdrawal: Murder: Idaho

Paragraph one reads: “On May 28, 2002, Briggs pleaded guilty to one count
of murder in the first degree, Idaho Code § 18-4003(a), and two counts of
aggravated battery, I.C. §§ 18-903, 18-907(b). After being sentenced to a
unified term of life imprisonment with twenty-five years determinate for the
murder conviction and several lesser concurrent sentences for the battery
convictions, he appealed the sentences as excessive. On May 15, 2003, this
Court affirmed the sentences in an unpublished opinion. State v. Briggs,
Docket No. 28867 (Ct. App. May 15, 2003). A remittitur issued on June 6,
2003.”

Paragraph three reads: “Briggs appealed the summary dismissal of his
petition in regard to two grounds­that counsel was ineffective for failing
to investigate and subpoena seven possible witnesses for the sentencing
hearing and that counsel was ineffective for failing to investigate and
present evidence on the effects of Briggs’s alleged withdrawal from Zoloft (a
prescription medication) at the time of the underlying crime. In an
unpublished opinion, this Court affirmed the district court’s summary dismissal,
Briggs v. State, Docket No. 32502 (Ct. App. Feb. 28, 2007), holding that Briggs
had failed to present evidence of what the testimony of the seven
individuals would have been or how that testimony would have mitigated his
sentence, and failed to present evidence of what facts would have been uncovered as
a result of further investigation into Briggs’s withdrawal from Zoloft or
how those facts would affect a sentencing hearing. A remittitur issued on
March 22, 2007.”

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BRIGGS v. STATE

TODD ROBERT BRIGGS, Petitioner-Appellant,
v.
STATE OF IDAHO, Respondent.

Docket No. 35530.

Court of Appeals of Idaho.

Filed April 14, 2010.

Todd R. Briggs, Boise, pro se appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy
Attorney General, Boise, for respondent.

THIS IS AN UNPUBLISHED OPINION AND SHALL NOT BE CITED AS AUTHORITY
GUTIERREZ, Judge.

Todd Robert Briggs appeals from the district court’s summary dismissal of
his successive petition for post-conviction relief. We affirm.

I.

FACTS AND PROCEDURE
On May 28, 2002, Briggs pleaded guilty to one count of murder in the first
degree, Idaho Code § 18-4003(a), and two counts of aggravated battery,
I.C. §§ 18-903, 18-907(b). After being sentenced to a unified term of life
imprisonment with twenty-five years determinate for the murder conviction and
several lesser concurrent sentences for the battery convictions, he appealed
the sentences as excessive. On May 15, 2003, this Court affirmed the
sentences in an unpublished opinion. State v. Briggs, Docket No. 28867 (Ct. App.
May 15, 2003). A remittitur issued on June 6, 2003.

Briggs filed a pro se petition for post-conviction relief on April 30,
2004, asserting several constitutional violations as well as multiple claims
of ineffective assistance of counsel. The sole evidence submitted in support
was an affidavit executed by Briggs on April 13, 2004. Counsel was
subsequently appointed and on August 16, 2005, Briggs­through
counsel­filed an amended petition for post-conviction relief asserting six instances of
ineffective assistance of trial counsel. Again, the only evidence filed in
support of the petition was an affidavit executed by Briggs on August 16,
2005. The state filed a motion for summary dismissal and after the parties
agreed to forego argument on the motion, the district court issued a
memorandum decision and order granting the motion on October 25, 2005, finding
that Briggs had failed to state specifically how his counsel’s performance
was deficient or how the alleged deficient performance was prejudicial to him.

Briggs appealed the summary dismissal of his petition in regard to two
grounds­that counsel was ineffective for failing to investigate and
subpoena seven possible witnesses for the sentencing hearing and that counsel was
ineffective for failing to investigate and present evidence on the effects
of Briggs’s alleged withdrawal from Zoloft (a prescription medication) at
the time of the underlying crime. In an unpublished opinion, this Court
affirmed the district court’s summary dismissal, Briggs v. State, Docket No.
32502 (Ct. App. Feb. 28, 2007), holding that Briggs had failed to present
evidence of what the testimony of the seven individuals would have been or how
that testimony would have mitigated his sentence, and failed to present
evidence of what facts would have been uncovered as a result of further
investigation into Briggs’s withdrawal from Zoloft or how those facts would
affect a sentencing hearing. A remittitur issued on March 22, 2007.

Briggs filed a second pro se petition for post-conviction relief on
December 10, 2007, asserting that his post-conviction counsel was ineffective for
failing to prove that his trial counsel’s ineffective assistance had
prejudiced him, for failing to assert certain due process violations, for
failing to assert that he had been denied his right to confront witnesses, and
for failing to present oral argument on the state’s motion for summary
dismissal. In support, he filed an affidavit executed by him. The state filed a
motion for summary dismissal, contending, among other things, that such a su
ccessive petition is not allowed and that Briggs failed to provide any
evidentiary basis to support his claims. After a hearing, the district court
granted the motion. Briggs now appeals.

II.

ANALYSIS
Briggs contends that the district court erred in summarily dismissing his
successive petition for post-conviction relief. All grounds for relief
available to an applicant under the Uniform Post-Conviction Procedure Act must
be raised in an applicant’s original, supplemental, or amended application.
I.C. § 19-4908. The language of Section 19-4908 prohibits successive
applications in those cases where the applicant “knowingly, voluntarily and
intelligently” waived the grounds for relief sought in the successive
application or offers no “sufficient reason” for omitting those grounds in the
original application. Baker v. State, 142 Idaho 411, 420, 128 P.3d 948, 957 (Ct.
App. 2005) (citing Palmer v. Dermitt, 102 Idaho 591, 593, 635 P.2d 955,
957 (1981)). However, Section 19-4908 allows an applicant to raise a ground
for relief, which was addressed in a former application, if he or she can
demonstrate sufficient reason why that ground was inadequately raised or
presented in the initial post-conviction action. Baker, 142 Idaho at 420, 128
P.3d at 957; Hernandez v. State, 133 Idaho 794, 798, 992 P.2d 789, 793 (Ct.
App. 1999). A showing that a claim was not adequately presented in the
first post-conviction action due to the ineffective assistance of prior
post-conviction counsel provides sufficient reason for permitting issues that were
inadequately presented to be presented in a subsequent application for
post-conviction relief. Id. A petitioner has the burden of providing the
district court with factual reasons upon which the court could conclude there
was a “sufficient reason” why the grounds for relief asserted in his second
petition were “not asserted or were inadequately raised in the original,
supplemental or amended application.” Hooper v. State, 127 Idaho 945, 948, 908
P.2d 1252, 1255 (Ct. App. 1995) (citing I.C. § 19-4908).

On appeal, Briggs contends that post-conviction counsel inadequately
presented his contentions of ineffective assistance of his trial counsel in his
first post-conviction petition. Specifically, he contends that his
post-conviction counsel failed to comply with the second Strickland prong[ 1 ] to
show prejudice stemming from trial counsel’s alleged ineffectiveness where
trial counsel was operating under an alleged conflict of interest and was
not death-penalty certified, where trial counsel did not utilize
court-allocated funds to investigate possible defenses including the possibility that
Briggs’s withdrawal from Zoloft may have been the source of his violent
behavior, and where trial counsel did not “confront” several sentencing hearing
witnesses.

In Wolfe v. State, 113 Idaho 337, 743 P.2d 990 (Ct. App. 1987), this Court
noted that in examining a successive petition, while I.C. § 19-4908
permits an inquiry into why the applicant’s attorney on the first application did
not fully present his client’s grounds for relief, the ultimate focus of
the proceeding would remain on whether the second application has raised not
merely a question of counsel’s performance but substantive grounds for
relief from the conviction and sentence. Id. at 339, 743 P.2d at 992 (emphasis
added). Thus, adopting the approach followed in Wolfe, we examine the
claims raised by Briggs to determine whether he has set forth any “ground for
relief . . . which for sufficient reason was not asserted or was
inadequately raised in the original . . . application.” I.C. § 19-4908. See also
Nguyen v. State, 126 Idaho 494, 887 P.2d 39 (Ct. App. 1994).

An application for post-conviction relief initiates a proceeding that is
civil in nature. State v. Bearshield, 104 Idaho 676, 678, 662 P.2d 548, 550
(1983); Clark v. State, 92 Idaho 827, 830, 452 P.2d 54, 57 (1969); Murray v.
State, 121 Idaho 918, 921, 828 P.2d 1323, 1326 (Ct. App. 1992). Like a
plaintiff in a civil action, the applicant must prove by a preponderance of
evidence the allegations upon which the request for post-conviction relief is
based. I.C. § 19-4907; Russell v. State, 118 Idaho 65, 67, 794 P.2d 654,
656 (Ct. App. 1990). An application for post-conviction relief differs from
a complaint in an ordinary civil action. An application must contain much
more than “a short and plain statement of the claim” that would suffice for
a complaint under I.R.C.P. 8(a)(1). Rather, an application for
post-conviction relief must be verified with respect to facts within the personal
knowledge of the applicant, and affidavits, records or other evidence supporting
its allegations must be attached, or the application must state why such
supporting evidence is not included with the application. I.C. § 19-4903. In
other words, the application must present or be accompanied by admissible
evidence supporting its allegations, or the application will be subject to
dismissal.

Idaho Code Section 19-4906 authorizes summary disposition of an
application for post-conviction relief, either pursuant to motion of a party or upon
the court’s own initiative. Summary dismissal of an application pursuant to
I.C. § 19-4906 is the procedural equivalent of summary judgment under
I.R.C.P. 56. Summary dismissal is permissible only when the applicant’s
evidence has raised no genuine issue of material fact which, if resolved in the
applicant’s favor, would entitle the applicant to the requested relief. If
such a factual issue is presented, an evidentiary hearing must be conducted.
Gonzales v. State, 120 Idaho 759, 763, 819 P.2d 1159, 1163 (Ct. App. 1991);
Hoover v. State, 114 Idaho 145, 146, 754 P.2d 458, 459 (Ct. App. 1988);
Ramirez v. State, 113 Idaho 87, 89, 741 P.2d 374, 376 (Ct. App. 1987).
Summary dismissal of an application for post-conviction relief may be
appropriate, however, even where the state does not controvert the applicant’s
evidence because the court is not required to accept either the applicant’s mere
conclusory allegations, unsupported by admissible evidence, or the
applicant’s conclusions of law. Roman v. State, 125 Idaho 644, 647, 873 P.2d 898,
901 (Ct. App. 1994); Baruth v. Gardner, 110 Idaho 156, 159, 715 P.2d 369, 372
(Ct. App. 1986).

On review of a dismissal of a post-conviction relief application without
an evidentiary hearing, we determine whether a genuine issue of fact exists
based on the pleadings, depositions, and admissions together with any
affidavits on file. Ricca v. State, 124 Idaho 894, 896, 865 P.2d 985, 987 (Ct.
App. 1993). In post-conviction actions, the district court, as the trier of
fact, is not constrained to draw inferences in favor of the party opposing
the motion for summary disposition; rather the district court is free to
arrive at the most probable inferences to be drawn from uncontroverted
evidence. Hayes v. State, 146 Idaho 353, 355, 195 P.3d 712, 714 (Ct. App. 2008).
It is also the rule that a conclusory allegation, unsubstantiated by any
fact, is insufficient to entitle a petitioner to an evidentiary hearing. Smith
v. State, 94 Idaho 469, 473, 491 P.2d 733, 737 (1971) (overruled on other
grounds); Nguyen, 126 Idaho at 497, 887 P.2d at 42; King v. State, 114
Idaho 442, 446, 757 P.2d 705, 709 (Ct. App. 1988); Drapeau v. State, 103 Idaho
612, 615, 651 P.2d 546, 549 (Ct. App. 1982). Idaho Code § 19-4903 states
that “[a]ffidavits, records, or other evidence supporting its allegations sha
ll be attached to the application or the application shall recite why they
are not attached.”

Here, a review of Briggs’s successive petition reveals that he did not
present sufficient evidence of any facts beyond what was asserted by his
initial post-conviction counsel in regard to his allegations of ineffective
assistance of trial counsel. His successive petition and affidavit in support
merely state (in various ways) his contention that post-conviction counsel
failed to show prejudice in regard to his ineffective assistance of trial
counsel claims. He failed to cite to authority for his proposition that he
should be allowed to file a successive petition due to his post-conviction
counsel’s inadequacy. In his response to the state’s motion for summary
dimissal,[ 2 ] Briggs attached several pages of the “Petitioner’s Response and
Opposition to Motion for Summary Dismissal” filed by his initial
post-conviction counsel in response to the state’s motion for summary dismissal of his
initial post-conviction petition. Presumably as his argument to avoid
summary dismissal of his successive petition, Briggs made handwritten notations
on the excerpted pages, emphasizing and attempting to elucidate some
points. Finally, in his response he stated:
For the foregoing reasons [presumably in reference to the excerpted
response], and for the potential, in all likelihood, for discovering more
evidence in his favor by way of testimony from expert witnesses regarding the
effects of the Zoloft withdrawal, more witnesses regarding Mr. Briggs’ bizarre
behavior the week of 10/21-10/28 2001 [sic] (including Dori Lott, TSI
employees, Camilla Vanderlinden, Bowlero employees, Garcias [sic] personnel,
Jackson’s employees and video, Deralee Beck, Jared, Mays, Ameritel Inn clerk,
Texas Rhodehouse [sic] bartender, the dentist, and others), the list of
evidence found in petitioner’s car, new evidence showing a history of
depression dating back to at least 1999 with accompanying medical records, hearsay
of Deana Higgins/B. Park, new PSI evidence re: Toni Castaneda, and overall
what the investigation would have revealed in mitigating evidence to impact
the sentencing, if not to have made a trial initially possible­that
this matter proceed to evidentiary hearing [sic].

Assessing the entirety of Briggs’s successive application and supporting
affidavit, and taking into account his response to the state’s motion to
dismiss, he has failed to allege facts, which, if true would entitle him to
relief.[ 3 ] Initially, we note that his successive petition and accompanying
affidavit merely included statements of the issues without including any
facts allowing the district court to conclude (1) that there was sufficient
reason why his claims had been inadequately pursued initially, and (2) that
there was a basis for post-conviction relief. And, as we noted above, bare
or conclusory allegations, unsubstantiated by any fact, are inadequate to
entitle an applicant to an evidentiary hearing. Nguyen, 126 Idaho at 497,
887 P.2d at 42; King, 114 Idaho 442, 757 P.2d 705. See also I.C. § 19-4903
(noting that an application for post-conviction relief must be verified with
respect to facts within the personal knowledge of the applicant, and
affidavits, records or other evidence supporting its allegations must be
attached, or the application must state why such supporting evidence is not
included with the application).

In addition, Briggs’s response to the state’s summary dismissal motion
failed to assert the necessary bases for the district court to find in
Briggs’s favor on the two issues above. In fact, reasserting what was advanced by
his initial post-conviction counsel belies his claim that there was
sufficient reason­namely his post-conviction counsel’s inadequate
performance­that he did not raise the claims he now asserts in a successive
petition. In addition, simply asserting the possibility of mitigating evidence
being discovered, and listing potential witnesses, is not sufficient to
entitle him to an evidentiary hearing­such assertions are bare and conclusory
and included no affidavits or other evidence showing the actual existence
of mitigating evidence that could have been discovered and presented by
Briggs’s defense counsel. In short, Briggs has presented nothing but
speculation. See Drapeau, 103 Idaho at 617, 651 P.2d at 551 (noting that allegations
asserted in a petition for post-conviction relief, without supporting
affidavits based upon otherwise verifiable information, cannot be a basis for
post-conviction relief). See also Hooper, 127 Idaho 945, 908 P.2d 1252
(holding that in his successive post-conviction petition, petitioner failed to
assert any basis on which the district court could conclude that there was
sufficient reason why the grounds for relief asserted in his second petition
had not been raised­ or were inadequately raised­in his initial
petition); Nguyen, 126 Idaho at 497, 887 P.2d at 42 (affirming summary
dismissal of a successive application where it contained only allegations,
without supporting affidavits based on otherwise verifiable information, and thus
contained no evidence regarding the merits of his underlying claims or
that his counsel was ineffective for failing to raise the issues in the first
post-conviction proceeding); King, 114 Idaho 442, 757 P.2d 705 (affirming
summary dismissal of successive petition where there were no affidavits,
records or other evidence offered in support of the petition other than an
affidavit by King outlining the factual circumstances of the underlying crime
and his dissatisfaction because of the lesser penalties meted out to
co-defendants on the charge, as well as because of King’s failure to provide a
sufficient reason why the grounds alleged in the successive application were
not raised in the first application). Compare Stuart v. State, 127 Idaho
806, 907 P.2d 783 (1995) (holding that successive petition set forth facts,
with accompanying affidavits, alleging newly discovered information not known
to the applicant at the time of the filing of his first petition).[ 4 ]

In sum, because Briggs did not present evidence of facts showing that
there was sufficient reason his claims were inadequately presented in his first
post-conviction petition or that there were substantive grounds for relief
in regard to his claims of ineffective assistance of trial counsel, we
affirm the district court’s summary dismissal of Briggs’s successive petition
for post-conviction relief.

Chief Judge LANSING and Judge MELANSON CONCUR.
1. To prevail on an ineffective assistance of counsel claim, the defendant
must show that the attorney’s performance was deficient and that the
defendant was prejudiced by the deficiency. Strickland v. Washington, 466 U.S.
668, 687-88 (1984); Hassett v. State, 127 Idaho 313, 316, 900 P.2d 221, 224
(Ct. App. 1995). Where, as here, the defendant was convicted upon a guilty
plea, to satisfy the prejudice element, the claimant must show that there is
a reasonable probability that, but for counsel’s errors, he or she would
not have pled guilty and would have insisted on going to trial. Plant v.
State, 143 Idaho 758, 762, 152 P.3d 629, 633 (Ct. App. 2006).
2. This response was filed pro se, because, Briggs claims in the document,
he presumed that he was without counsel due to a potential conflict of
interest resulting in the “voluntary dismissal” of both attorneys appointed to
represent Briggs in regard to his successive petition. Subsequent to the
filing of this response, Briggs apparently moved to dismiss his
court-appointed counsel, a motion the district court denied. While counsel then
proceeded to represent Briggs at the summary dismissal hearing on his successive
petition, there is nothing in the record indicating that counsel filed any
substantive documents on Briggs’s behalf in regard to his successive
petition.
3. In his brief to this Court, Briggs alleges additional facts and
possible prejudice that he contends stemmed from his trial counsel’s ineffective
assistance of counsel. However, on appeal we review whether the successive
petition, as filed with the district court, was sufficient to survive summary
dismissal. Thus, contentions contained only in Briggs’s appellate brief
are irrelevant to our inquiry.
4. We also note, as the district court in this case pointed out, the mere
fact that the district court which adjudicated Briggs’s first petition
found there was no prejudice shown does not conclusively establish that
counsel’s performance was defective such that Briggs should have the opportunity
to file a successive petition. Just as likely, as the first district court
concluded, is that Briggs had not established prejudice not because
post-conviction counsel was ineffective, but because there were, in fact, no facts
establishing prejudice stemming from trial counsel’s alleged defective
representation.

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PROZAC: Murder: Involuntary Intoxication Plea: Tennessee

Paragraph 14 reads:  “The Petitioner had available as a
defense at trial and also as a competency issue the fact that he was
[intoxicated] from the ingestion of . . .[the] medically prescribed drugs[,
Moban and Prozac].
The Petitioner contends that this intoxication
constitutes a valid defense that was overlooked by defense counsel. The
prescribed medications were taken pursuant to medical advice and without [the
Petitioner’s] knowledge of [their] potentially intoxicating effects. . . .
Petitioner contends that due to the ingestion of the aforementioned prescription
drugs he was unexpectedly intoxicated to the point of unconsciousness, incapable
of controlling his actions, and thus not criminally responsible for his actions.
Because the Petitioner was unaware of the potential for his medications to
produce abnormal thought processes and behavior, and because [they were]
medically prescribed to him, the petitioner’s condition qualified as involuntary
intoxication. See T.C.A. § 39-11-503(c). As a result of the aforementioned
prescribed medication-induced physical disorder of the brain, the Petitioner was
(1) unable to exercise his customary moral judgment, (2) unable to control his
violent impulses, (3) unable to appreciate the consequences of his violent
actions, and (4) unable to appreciate right and wrong in regard to what he was
doing at the time of the
homicide.”

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SILER v. STATE

JEFFERY T. SILER, JR.,
v.
STATE
OF TENNESSEE.

No. E2009-00436-CCA-R3-PC.

Court of Criminal Appeals
of Tennessee, at Knoxville.

Assigned on Briefs August 26,
2009.

Filed April 12, 2010.

Jeffery T. Siler, Pro Se, Only,

Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; and
Clark B. Thornton, Assistant Attorney General, for the Appellee, State of
Tennessee.

Camille R. McMullen, J., delivered the opinion of the court,
in which Joseph M. Tipton, P.J., and D. Kelly Thomas, Jr., J.,
joined.

OPINION

CAMILLE R. McMULLEN, JUDGE.

The
Petitioner, Jeffery T. Siler, Jr., appeals the Knox County Criminal Court’s
summary dismissal of his petition for post-conviction relief as untimely. On
appeal, the Petitioner contends that due process considerations toll the
one-year statute of limitations for post-conviction relief and entitle him to a
delayed appeal. Upon review, we reverse the judgment of the post-conviction
court.

Prior to trial, the Petitioner pleaded guilty to the charge of
attempted especially aggravated robbery and received a sentence of eight years.
See State v. Jeffery T. Siler, No. E2000-01570-CCA-R3-CD, 2001 WL
387088, at *1 (Tenn. Crim. App., at Knoxville, Apr. 17, 2001). A Knox County
jury subsequently found the Petitioner guilty of the felony murder charge.

See id. He received a life sentence that was to be served
concurrently to his eight-year sentence for the attempted especially aggravated
robbery conviction. See id. The Petitioner’s convictions were
affirmed on direct appeal, and the Petitioner did not file an application for
permission to appeal to the Tennessee Supreme Court pursuant to Rule 11 of the
Tennessee Rules of Appellate Procedure. See id.

On February
13, 2009, the Petitioner filed a petition for post-conviction relief, claiming,
among other things, that: (1) his conviction was based on a coerced confession;
(2) his conviction was based on a violation of the privilege of
self-incrimination; (3) he received ineffective assistance of counsel at trial;
(4) he had newly discovered evidence; (5) his attorney failed to appeal to the

Tennessee Supreme Court after his convictions were affirmed on direct appeal;
(6) his attorney failed to withdraw following the direct appeal; (7) he had a
right to a delayed appeal because his attorney failed to appeal his case to the
Tennessee Supreme Court after his convictions were affirmed on direct appeal and
because his attorney failed to withdraw after the direct appeal; (8) he received
ineffective assistance of counsel at his transfer hearing; (9) his attorney was
ineffective for failing to argue he was incompetent because of involuntary
intoxication from prescribed medicatons and for failing to assert the defense of
involuntary intoxication; (10) his attorney was ineffective for failing to
investigate his psychiatric history and for failing to include this history in a
motion to suppress his pretrial statements; (11) his attorney was ineffective
for failing to hire an expert to support the defense of involuntary intoxication

from prescribed medications which established his actual innocence; (12) his
attorney was ineffective for failing to argue the Petitioner was insane at the
time of the homicide and for failing to hire an expert to support the defense of
insanity; (13) the grand jury that returned the indictment against him was
unconstitutionally selected because it did not reflect a cross-section of the
community and his attorney was ineffective for failing to raise this issue; (14)
the State committed prosecutorial misconduct by making inflammatory comments
about the Petitioner, the evidence, and the crime, and by implying that the
Petitioner would commit other crimes if the jury did not convict him; and (15)
the trial court erred by allowing “irrelevant, inadmissible, and false evidence”
to be presented to the jury, by failing to charge the jury on all applicable
defenses, and by failing to charge the jury on all lesser-included offenses. On
February 20, 2009, the post-conviction court summarily dismissed the petition as
untimely. The post-conviction court’s order did not address whether due process
required tolling of the statute of limitations period. On March 2, 2009, the
Petitioner filed a notice of appeal.

In the opinion on direct appeal,
this court provided a summary of the underlying facts in this case:

On February 19, 1998, the fifteen-year-old defendant and fifteen-year-old
Lavon Davis were riding with Jason Copley. Davis stated that he was “looking
for a lick,” meaning someone to rob. Upon seeing fifty-six-year-old Tommy
Haworth, the victim, walking down the street, they decided to rob him. The
defendant agreed to take Davis’ pistol, and Davis and the defendant exited the
vehicle and followed the victim to his residence. There, the defendant
confronted the victim and asked him for money. The victim replied that he had
none. The defendant then cocked the pistol, and it fired. The victim was hit
in the face with the bullet and died as a result of this gunshot wound.
The defendant and Davis fled the scene, and the defendant threw the empty
shell casing into a storm drain. Copley, who had remained in the vehicle,
stayed at the scene and told someone to call 911.
The defendant and Davis were subsequently arrested, and the defendant
confessed his involvement in the offense. In his statement the defendant
contended the gun went off accidentally during the attempted robbery, and he
did not intend to shoot the victim. An analysis of the shell casing found in
the storm drain and the projectile recovered in the victim’s toboggan revealed
they were fired from the pistol recovered from Davis’ coat pocket. The
defendant’s fingerprints were also found on the door of the victim’s
residence.
The defendant was transferred from juvenile court to the Criminal Court
for Knox County and indicted in Count 1 for first degree murder during the
perpetration of an attempted especially aggravated robbery and in Count 2 for
attempted especially aggravated robbery. On the morning of trial, the
defendant entered a guilty plea to attempted especially aggravated robbery,
and the case was tried before a jury on the felony murder charge. The jury
found the defendant guilty of felony murder. The defendant was sentenced to
concurrent sentences of life for felony murder and eight years for attempted
especially aggravated robbery.

Id. at *1 (internal footnote
omitted).

On appeal, the Petitioner argues that the post-conviction court
erred in dismissing his petition for post-conviction relief as untimely. He also
contends that due process considerations should toll the post-conviction statute
in light of his counsel’s failure to appeal his case to the Tennessee Supreme
Court after his convictions were affirmed on direct appeal, his counsel’s
failure to withdraw as counsel pursuant to Tennessee Supreme Court Rule 14, and
his counsel’s failure to argue that he was incompetent because of involuntary

intoxication and failure to assert the defense of involuntary intoxication at
trial. As explanation for his untimely filing, the Petitioner claims in his
appellate brief that his “multiple mental health diagnoses” including “mental
retardation” prevented him from determining how much time it would take for the
Tennessee Supreme Court to grant or deny counsel’s promised application for
permission to appeal. See Tenn. R. App. P. 11. Finally, the Petitioner argues
that he should be given a delayed appeal to the Tennessee Supreme Court because
of these due process violations. See Tenn. Sup. Ct. R. 28, § 9(D)(1)(b). In
response, the State argues that the Petitioner’s claims do not qualify as
exceptions to the statute of limitations, that the post-conviction court
properly dismissed his petition as untimely, and that he is not entitled to a
delayed appeal based on due process concerns.

Regarding counsel’s failure
to appeal his case following the direct appeal, the Petitioner cites to
counsel’s April 19, 2001 letter to him, wherein counsel stated:

Your appeal was denied by the Court of Criminal Appeals. I shall ask for
permission to appeal to the Tennessee Supreme Court, unless you instruct me
otherwise within the next ten (10) days. A copy of the Court’s opinion is
enclosed.
If I do not hear from you within the next ten (10) days, I shall prepare a
Request for Permission to Appeal to the Supreme Court of Tennessee. While I do
not think permission to appeal will be granted, I believe it is obviously in
your best interest for me to ask on your behalf. Thank you for the opportunity
to represent you in this matter.

The Petitioner also cites to
counsel’s November 4, 2008 letter to the Board of Professional Responsibility,
wherein counsel stated: “The Court of Criminal Appeals denied Mr. Siler’s
appeal, and he did not contact me within thirty (30) days, orally or in writing,
to appeal to the Supreme Court.”

Regarding counsel’s failure to withdraw
pursuant to Tennessee Supreme Court Rule 14, the Petitioner cites to the
response he received from Becky Doyal, the Deputy Clerk of the Courts of the
State of Tennessee, wherein she stated:

Your question: “Did [counsel] file a motion to withdraw on your behalf[.”]
If you are asking if [counsel] filed a motion to withdraw as your attorney,
the answer is no. If you are asking[] if [counsel] filed a motion to withdraw
the appeal, the answer is no.

The Petitioner included copies of
counsel’s April 19, 2001 letter, counsel’s November 4, 2008 letter to the Board
of Professional Responsibility, and the response from the Deputy Clerk of the
Courts of the State of Tennessee as exhibits to his petition for post-conviction
relief.

Finally, regarding counsel’s failure to assert competency or
defense arguments based on involuntary intoxication, the Petitioner argues:

The Petitioner had available as a defense at trial and also as a
competency issue the fact that he was [intoxicated] from the ingestion of . .
.[the] medically prescribed drugs[, Moban and Prozac]. The Petitioner contends
that this intoxication constitutes a valid defense that was overlooked by
defense counsel. The prescribed medications were taken pursuant to medical
advice and without [the Petitioner’s] knowledge of [their] potentially
intoxicating effects. . . . Petitioner contends that due to the ingestion of
the aforementioned prescription drugs he was unexpectedly intoxicated to the
point of unconsciousness, incapable of controlling his actions, and thus not
criminally responsible for his actions. Because the Petitioner was unaware of
the potential for his medications to produce abnormal thought processes and
behavior, and because [they were] medically prescribed to him, the
petitioner’s condition qualified as involuntary intoxication. See T.C.A. §
39-11-503(c). As a result of the aforementioned prescribed medication-induced
physical disorder of the brain, the Petitioner was (1) unable to exercise his
customary moral judgment, (2) unable to control his violent impulses, (3)
unable to appreciate the consequences of his violent actions, and (4) unable
to appreciate right and wrong in regard to what he was doing at the time of
the homicide.

“[A] person in custody under a sentence of a
court of this state must petition for post-conviction relief 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. . .” T.C.A. § 40-30-102(a) (2006). The statute
explicitly states, “The statute of limitations shall not be tolled for any
reason, including any tolling or saving provision otherwise available at law or
equity.” Id. It further stresses that “[t]ime 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.” Id. In the event that a
petitioner files a petition for post-conviction relief outside the one-year
statute of limitations, the trial court is required to summarily dismiss the
petition. See id. § 40-30-106(b) (2006). Similarly, “[i]f, on reviewing the
petition, the response, files, and records, the court determines conclusively
that the petitioner is entitled to no relief, the court shall dismiss the
petition.” Id. § 40-30-109(a) (2006). Furthermore, “[i]f and when a petition is
competently drafted and all pleadings, files and records of the case
conclusively show that the petitioner is entitled to no relief the court may
properly dismiss the petition without the appointment of counsel or conducting a
hearing.” Martucci v. State, 872 S.W.2d 947, 949 (Tenn. Crim. App. 1993) (citing
T.C.A. § 40-30-109; Stokely v. State, 470 S.W.2d 37, 39 (Tenn. Crim. App.
1971)).

Tennessee Code Annotated section 40-30-102(b) (2006) sets out
three exceptions to the statute of limitations for petitions for post-conviction
relief:

No court shall have jurisdiction to consider a petition filed after the
expiration of the limitations period unless:
(1) The 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.
The petition must be filed within one (1) year of the ruling of the highest
state appellate court or the United States supreme court establishing a
constitutional right that was not recognized as existing at the time of trial;

(2) The 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
(3) The claim asserted in the petition 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, in which
case the petition must be filed within one (1) year of the finality of the
ruling holding the previous conviction to be
invalid.

Additionally, due process concerns may toll the
statute of limitations for post-conviction relief. The Tennessee Supreme Court
concluded:

[B]efore a state may terminate a claim for failure to comply with
procedural requirements such as statutes of limitations, due process requires
that potential litigants be provided an opportunity for the presentation of
claims at a meaningful time and in a meaningful manner.

Burford
v. State, 845 S.W.2d 204, 208 (Tenn. 1992) (citing Logan v. Zimmerman Brush Co.,
455 U.S. 422, 437, 102 S. Ct. 1148, 1158-59 (1982)).

Here, the Petitioner
was required to file his petition for post-conviction relief within one year of
April 17, 2001, the date that the Tennessee Court of Criminal Appeals affirmed
his convictions on direct appeal, which was the final action of the highest
state appellate court to which an appeal was taken in his case. See T.C.A. §
40-30-102(a) (2006). The Petitioner does not list any ground that would make him
eligible for the exceptions to the one-year statute of limitations. See id. §
40-30-102(b) (2006). However, regarding counsel’s failure to appeal to the

Tennessee Supreme Court after his direct appeal and counsel’s failure to
withdraw as counsel, he relies on Williams v. State, 44 S.W.3d 464, 468 (Tenn.
2001), for the proposition that due process considerations should toll the
one-year statute of limitations for filing his petition for post-conviction
relief. In Williams, the Tennessee Supreme Court stressed that in limited
circumstances an attorney’s misrepresentation to a petitioner could result in a
tolling of the statute of limitations for due process concerns:

[W]e are not holding that a petitioner may be excused from filing an
untimely post-conviction petition as a result of counsel’s negligence.
Instead, the focus here is . . . upon trial and appellate counsel’s alleged
misrepresentation in failing to . . . notify the petitioner that no
application for permission to appeal would be filed in [the Tennessee Supreme]
Court.

Williams, 44 S.W.3d. at 468 n.7. In Craig Robert Nunn,
this court agreed that “[t]he Williams decision is not intended to require a
hearing on due process concerns every time a petitioner alleges that the
untimeliness of his petition is due to his trial or appellate counsel’s
negligence.” Craig Robert Nunn v. State, No. M2005-01404-CCA-R3-PC, 2006 WL
680900, at *5 (Tenn. Crim. App., at Nashville, Mar. 17, 2006) (citing Bronzo
Gosnell, Jr. v. State, No. E2004-02654-CCA-R3-PC, 2005 WL 1996629, at *4 (Tenn.

Crim. App., at Knoxville, Aug. 19, 2005), perm. to appeal denied (Tenn. Dec. 19,
2005)). However, this court explained that the facts in the Williams case
necessitated an evidentiary hearing:

In Williams, the inmate/petitioner averred that he believed trial counsel
was continuing to represent him through the appeals process. The court
remanded for an evidentiary hearing on grounds that the inmate/petitioner
might “have been denied the opportunity to challenge his conviction in a
timely manner through no fault of his own but because of the possible
misrepresentation of counsel.”

Barry N. Waddell v. State, No.
M2001-00096-CCA-R3-PC, 2001 WL 1246393, at *3 (Tenn. Crim. App., Nashville, Oct.
17, 2001) (quoting Williams, 44 S.W.3d at 468) (emphasis added)), perm. to
appeal denied (Tenn. Apr. 8, 2002). Ultimately, the court in Williams remanded
the appellee’s case to the trial court for an evidentiary hearing to determine:

(1) whether due process tolled the statute of limitations so as to give
the appellee a reasonable opportunity after the expiration of the limitations
period to present his claim in a meaningful time and manner; and (2) if so,
whether the appellee’s filing of the post-conviction petition . . . was within
the reasonable opportunity afforded by the due process tolling. Williams, 44
S.W.3d. at 471. The Williams court then held that if the trial court
determined that the statute of limitations should be tolled and that the
appellee had filed his petition for post-conviction relief within the
“reasonable opportunity afforded by the due process tolling” then the trial
court would have “jurisdiction to determine whether Williams was deprived of
his right to request pro se Supreme Court review under Rule 11 of the
Tennessee Rules of Appellate Procedure.” Id. at 472 (citing Tenn. Sup. Ct. R.
28, § 9(D)).

Although the Petitioner does not specifically cite
State v. Nix, 40 S.W.3d 459 (Tenn. 2001), we think this case is also
particularly relevant, given the Petitioner’s claim in his appellate brief that
his mental conditions prevented him from determining how much time it would take
for the Tennessee Supreme Court to grant or deny counsel’s promised application
for permission to appeal. Prior to Nix, the Tennessee Supreme Court, following
the holding in Watkins v. State, 903 S.W.2d 302, 307 (Tenn. 1995), concluded
that “mental incompetency, if established, tolled the statute of limitations.”
Seals v. State, 23 S.W.3d, 272, 279 (Tenn. 2000). The court further held that
the statute of limitations for post-conviction relief should not deny a
Petitioner the right to raise a claim in a meaningful time and manner:

[W]e conclude that while the one-year statute of limitations set forth in
Tenn. Code Ann. § 40-30-202(a) does not violate due process on its face,
application of the statute must not deny a petitioner a reasonable opportunity
to raise a claim in a meaningful time and manner. Thus, a petitioner who is
mentally incompetent is denied an opportunity to raise a claim in a meaningful
manner unless the statute of limitations is tolled during the period of mental
incompetence.

Id. Less than a year later, the Tennessee Supreme
Court held that the Watkins and Seals cases did not specify the standard of
mental incompetence that a petitioner must satisfy in order for due process
concerns to toll the statute of limitations for post-conviction relief. Nix, 40
S.W.3d at 463. Ultimately, the court held:

We emphasize that to make a prima facie showing of incompetence requiring
tolling of the limitations period, a post-conviction petition must include
specific factual allegations that demonstrate the petitioner’s inability to
manage his personal affairs or understand his legal rights and liabilities.
Unsupported, conclusory, or general allegations of mental illness will not be
sufficient to require tolling and prevent summary dismissal under Tenn. Code
Ann. § 40-30-206(b) & (f).

Id. at 464-65.

On appeal,
the Petitioner contends that counsel violated his due process rights by failing
to appeal his case to the Tennessee Supreme Court after his convictions were
affirmed on direct appeal, by failing to withdraw as counsel pursuant to
Tennessee Supreme Court Rule 14, and by failing to argue that he was incompetent
because of involuntary intoxication and failing to assert involuntary

intoxication as a defense at trial. We recognize that the petition for
post-conviction relief was not filed until February 13, 2009, nearly seven years
after the expiration of the one-year statute of limitations. In addition, based
on the record, the Petitioner’s February 13, 2009 petition appears to be the
first time he has argued that due process concerns should toll the one-year
statute of limitations. See Richard A. Emmitt v. State, No.
M2004-00564-CCA-R3-PC, 2005 WL 639133, at *6 (Tenn. Crim. App., Nashville, Mar.
16, 2005) (concluding that the trial court’s dismissal was proper where the
Petitioner waited eighteen years after his convictions became final before
filing a petition for post-conviction relief and before requesting a delayed
appeal to the Tennessee Supreme Court), perm. to appeal denied (Tenn. June 27,
2005). However, as explanation for his lengthy delay in filing his
post-conviction, the Petitioner argues in his appellate brief but not in his
petition for post-conviction relief that his “multiple mental health diagnoses”
including “mental retardation” prevented him from determining how much time it
would take for the Tennessee Supreme Court to grant or deny counsel’s promised
application for permission to appeal. The Petitioner further asserts, on appeal
and in his post-conviction petition, that he lived in a psychiatric institution
nearly his entire childhood and that he was receiving Social Security benefits
for a mental disability and was taking the prescriptions Moban and Prozac for
schizophrenia at the time of the homicide in this case. He attached medical
records documenting his mental conditions from his early childhood to his
petition; however, there are no records showing his condition after
trial.

Upon our review of the record, we conclude that the
post-conviction court erred in dismissing the petition without conducting a
hearing to make determinations as outlined in Williams. See Eric Wright v.
State, No. W2001-00386-CCA-R3-PC, 2001 WL 1690194, at *2 (Tenn.Crim.App., at
Jackson, Dec. 17, 2001). Here, the Petitioner attached a letter from counsel as
proof of counsel’s intent to file for a Rule 11 appeal as well as a letter from
the court clerk as proof of counsel’s failure to properly withdraw from his
case. Before dismissing the petition as untimely, Williams required the trial
court to conduct a hearing to determine if “in fact, [the petitioner] [was]
misled to believe that counsel was continuing the appeals process, thereby
requiring the tolling of the limitations period.” Williams, 44 S.W.3d at 471;
see also Shelvy Baker v. State, 2008 WL 2648957, at 2 (Tenn.Crim.App. 2008)
(concluding that petitioner’s allegations that counsel “(1) failed to notify the
Petitioner that counsel did not intend to file a Rule 11 application for
permission to appeal; (2) failed to formally withdraw as the attorney of record
or otherwise failed to inform the Petitioner of counsel’s withdraw; and (3)
counsel assured `the Petitioner that he would take the case all the way to the
Tennessee Supreme Court'” required a Williams based evidentiary
hearing).

Accordingly, we are constrained to reverse the post-conviction
court’s summary dismissal of the petition and remand for an evidentiary hearing.
On remand, the post-conviction court is required to determine

(1) whether due process tolled the statute of limitations so as to give
the [Petitioner] a reasonable opportunity after the expiration of the
limitations period to present his claim in a meaningful time and manner; and
(2) if so, whether the [Petitioner’s] filing of the post-conviction petition
in [February 2009] was within the reasonable opportunity afforded by the due
process tolling.

Williams, 44 S.W.3d at 471. In addition, on
remand, the trial court should consider the Petitioner’s claims regarding his
mental condition against the standard for mental competency established in State
v. Nix, 40 S.W.3d 459, 464 (Tenn. 2001).

CONCLUSION

We reverse the post-conviction
court’s summary dismissal of the Petitioner’s petition for post-conviction
relief and remand for further proceedings consistent with this
opinion.

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