The Court of Criminal Appeals has reinstated two first-degree murder convictions in Lowe v. State after concluding that an attorney’s “miscalculation and poor advice” on post-conviction deadlines do not toll the one-year statute of limitations for post-conviction petitions. As a result, Petitioner’s post-conviction claims were dismissed as untimely, despite the trial court’s grant of post-conviction relief on the merits.
As a reminder, post-conviction petitions under Tenn. Code Ann. §§ 40-30-101 et seq. must be filed (1) in the trial court where the conviction(s) occurred, (2) within one year of the date of the final action taken by the state’s highest appellate court. So, what should we tell clients? Generally…
- If no appeal is filed, the one-year post-conviction clock runs from the date of judgment of conviction
- If a direct appeal is filed, the one-year post-conviction clock runs from the date that the CCA opinion is filed (if no Rule 11 application for permission to appeal is filed in the Tennessee Supreme Court)
- If a Rule 11 application is filed in the Tennessee Supreme Court, then the one-year post-conviction clock runs from:
- The date that the Tennessee Supreme Court files its order denying the Rule 11 application, or
- If the Rule 11 application is granted, then the date that the Tennessee Supreme Court opinion is filed
Note that, if a petition for rehearing is filed after a CCA or TSC opinion, then the one-year post-conviction clock runs from the date of the highest appellate court’s order denying the petition for rehearing. Federal appeals and federal writs of certiorari do not toll the state post-conviction statute of limitations. Further, as the CCA recently held in Terry v. State, a pro se post-conviction petition that does not meet statutory requirements also will not toll the statute of limitations, and an amended petition filed by counsel that corrects the deficiencies but is filed after the expiration of the statute of limitations will be dismissed as untimely.
In other “post-conviction” news, the Tennessee Supreme Court has clarified in Clardy v. State that a late-filed petition for writ of error coram nobis cannot be considered by the trial court unless the petition, on its face, presents newly discovered evidence that clearly and convincingly shows the petitioner is actually innocent of the crime. A timely petition need not show actual innocence because, for a timely petition, the standard is whether the newly discovered evidence might have resulted in a different judgment. But for an untimely petition, the supreme court has narrowed the scope of review by requiring that the late-filed petition meet the more exacting standard of showing by clear and convincing evidence that the petitioner did not commit the crime.