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.

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).

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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