Whitehead v. State

• Citation: 402 S.W.3d 615
• Decision Date: 21 March 2013
• Docket Number: No. W2010–00784–SC–R11–PC.,W2010–00784–SC–R11–PC.
• Parties: Artis WHITEHEAD v. STATE of Tennessee.
• Court: Tennessee Supreme Court

402 S.W.3d 615

Artis WHITEHEAD

v.STATE of Tennessee.

No. W2010–00784–SC–R11–PC.

Supreme Court of Tennessee, at Jackson.

Oct. 2, 2012 Session in Nashville.

March 21, 2013.

Sean G. Hord, Memphis, Tennessee, for the appellant, Artis Whitehead.

Robert E. Cooper, Jr., Attorney General and Reporter; William E. Young, Solicitor General; Aaron E. Winter, and Cameron L. Hyder, Assistant Attorneys General; William L. Gibbons, District Attorney General; and Anita Spinetta, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

WILLIAM C. KOCH, JR., J., delivered the opinion of the Court, in which GARY R. WADE, C.J., CORNELIA A. CLARK, and SHARON G. LEE, JJ., joined. JANICE M. HOLDER, J., filed a dissenting opinion.

WILLIAM C. KOCH, JR., J.

Tennessee prisoners whose convictions and sentences are upheld on appeal have one year to file a petition for post-conviction relief to challenge their convictions and sentences. This appeal involves the narrow circumstances in which fundamental fairness demands the tolling of this deadline. A prisoner filed his petition for post-conviction relief after the statutory deadline had passed because his former attorney provided him the wrong deadline date and failed to give the prisoner his legal files until after the actual deadline had passed. Following a hearing, the Criminal Court for Shelby County dismissed the petition as untimely. The Court of Criminal Appeals affirmed. Whitehead v. State, No. W2010–00784–CCA–R3–PC, 2011 WL 3912856 (Tenn.Crim.App. Sept. 7, 2011). We granted the prisoner's application for permission to appeal. We find that the facts of this case reflect that the prisoner was effectively abandoned by his appellate attorney after his petition for writ of certiorari was filed in the United States Supreme Court. This abandonment impeded the prisoner's otherwise diligent efforts to file a timely post-conviction petition. Therefore, the statute of limitations should be tolled. We reverse the judgment of the Court of Criminal Appeals, and remand the prisoner's case to the trial court so the prisoner may pursue his petition for post-conviction relief.

I.

On May 9, 2002, Artis Whitehead attempted to rob the safe at B.B. King's Restaurant and Blues Club in Memphis. He did not succeed. Before he fled the scene, however, he detained five persons in the restaurant's basement office where the safe was located, robbed four of them, and seriously injured two of them. In November 2003, a Shelby County jury convicted Mr. Whitehead of five counts of especially aggravated kidnapping, two counts of aggravated assault, two counts of especially aggravated robbery, two counts of aggravated robbery, and one count of attempted robbery. The trial court sentenced Mr. Whitehead to consecutive sentences totaling 249 years. These convictions and sentences were upheld on direct appeal. State v. Whitehead, No. W2004–03058–CCA–R3–CD, 2006 WL 1273749, at *1 (Tenn.Crim.App. May 10, 2006), perm app. denied (Tenn. Oct. 16, 2006), cert. denied,549 U.S. 1269, 127 S.Ct. 1492, 167 L.Ed.2d 237 (2007).

Following his conviction, Mr. Whitehead retained new counsel to represent him during sentencing and on appeal. As far as this record shows, Mr. Whitehead seems to have lost contact with his appellate lawyer while his case was pending before the United States Supreme Court. Even though the United States Supreme Court denied Mr. Whitehead's petition for writ of certiorari on March 5, 2007, his appellate lawyer did not communicate with him about the case until she sent Mr. Whitehead a letter dated August 3, 2007. This letter stated:

Dear Mr. Whitehead,

I hope that you are doing well and that your family is well also. In reviewing our appellate files, I noticed that we have not received direction from you regarding your file. Your file cannot be provided to anyone other than you unless we have your written permission. Therefore, although we are closing your file because we no longer represent you, when you advise this office in writing as to whom your file can be forwarded we will be happy to do so.

I also would like to remind you that the denial by the United States Supreme Court of your Writ of Certiorari means that if you intend to file a post conviction petition, this must be done by March 5, 2008. It has been a pleasure assisting you these past years, Mr. Whitehead[,] and we wish you the best.

This seemingly innocuous letter was actually filled with mischief for Mr. Whitehead because the March 5, 2008 deadline for filing a petition for post-conviction relief stated in the letter was incorrect. Under Tenn.Code Ann. § 40–30–102(a) (2012), a petition 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.

The “final action of the highest state appellate court” occurred on October 16, 2006, when this Court denied Mr. Whitehead's appeal. Thus, the actual deadline for filing a petition for post-conviction relief was October 16, 2007. Mr. Whitehead's appellate lawyer erroneously calculated the deadline from the date the United States Supreme Court denied his petition for writ of certiorari.

On August 20, 2007, Mr. Whitehead replied to his appellate lawyer in a handwritten letter. He asked her to ship his files to him at the Hardeman County CorrectionalFacility. The lawyer received the letter but did not send Mr. Whitehead the files. On September 21, 2007, Mr. Whitehead sent his appellate lawyer a second letter, “respectfully requesting” that she send him his case files so he could “perfect [his] Petition for Post–Conviction Relief.” Again, the lawyer received the letter but did not immediately send the files to Mr. Whitehead. At a later hearing, Mr. Whitehead testified that his files did not arrive until “the last week or so of October” or perhaps “the beginning of November.” By this time, unbeknownst to Mr. Whitehead, the deadline for filing his post-conviction petition had already passed.

As soon as he received his files, Mr. Whitehead began preparing his petition for post-conviction relief. On March 3, 2008, he submitted his 32–page petition to prison authorities for mailing. The petition was filed on March 19, 2008. One week later, on March 26, 2008, the Criminal Court for Shelby County summarily dismissed the petition as untimely. Even though Mr. Whitehead filed his petition prior to the erroneous deadline provided by his appellate lawyer, his petition was actually filed 138 days late.

Mr. Whitehead, still representing himself, appealed the dismissal of his petition. The Court of Criminal Appeals determined that

while the petition was untimely, further development of the record is necessary to determine whether counsel's advice regarding the limitations period constituted “misrepresentation, either attributable to deception or other misconduct,” see Williams v. State, 44 S.W.3d 464, 469 (Tenn.2001), that necessitated due process-based tolling of the limitations period.

Whitehead v. State, No. W2008–00815–CCA–R3–PC, 2009 WL 723849, at *1 (Tenn.Crim.App. Mar. 19, 2009), app. dismissed (Tenn. Aug. 31, 2009). On remand, the post-conviction court appointed counsel to represent Mr. Whitehead.

The post-conviction court held an evidentiary hearing on March 5, 2010. The lawyer who represented Mr. Whitehead during his sentencing and on his direct appeal testified first. She was unable to explain how she had miscalculated the deadline for filing Mr. Whitehead's petition for post-conviction relief. “[C]learly that's my handwriting,” she said, “and the language in the letter is mine. But why did I say that? I wish I knew so I would never, ever, ever get close to making that kind of a mistake with somebody's life again.” The lawyer also testified that she did not intend to mislead Mr. Whitehead by giving him the wrong deadline date and that the miscalculation was an accident.

Although the lawyer could not specifically remember talking to Mr. Whitehead about his post-conviction rights, she testified that her standard practice was to explain post-conviction procedures to her clients. She testified that she generally informed her clients about the timetable for filing for post-conviction relief and that she generally told them that her firm would not be filing a post-conviction petition due to the apparent conflict of interest. ¹

The lawyer's testimony reflected her understanding that she was not representing Mr. Whitehead when she sent him the August 3, 2007 letter containing the wrong deadline. She said that when she wrote the letter, “there probably wasn't a contractual agreement at that point in time because we had only been retained for appeal and the [direct] appeal was over.” She agreed that she “technically” stopped representing Mr. Whitehead on March 5, 2007, when the United States Supreme Court denied Mr. Whitehead's petition for certiorari.

Mr. Whitehead testified that he did not recall any conversation with his lawyers about post-conviction relief. When he received his appellate lawyer's August 3, 2007 letter, he went to the prison's law library to “find out what [post-conviction] was.” Although Mr. Whitehead “kept reading and reading and reading and reading and asking a lot of questions” about post-conviction relief, he testified that he trusted the erroneous deadline in the attorney's letter because “she was my lawyer.” Although he had prior criminal convictions, Mr. Whitehead testified that he had never filed for post-conviction relief before.

The post-conviction court ruled from the bench at the close of the proof. The court decided that there was no longer an attorney-client relationship between Mr. Whitehead and his former lawyer as of March 5, 2007, when the United States Supreme Court denied the petition for writ of...