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Posted by: Tanja Trezise on Mar 21, 2013

Head Comment: With dissenting opinion.

Court: TN Supreme Court

Attorneys 1:

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

Attorneys 2:

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.

Judge(s): KOCH

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 postconviction relief.