Supreme Court Permits Prisoner to Pursue Post-Conviction Relief

March 21, 2013

The Tennessee Supreme Court today decided that a prisoner who missed the filing deadline for a post-conviction relief petition was entitled to have his petition considered because of the deficient conduct of his former lawyer.

In 2003, a Shelby County jury convicted Artis Whitehead of various robbery, assault, and kidnapping charges stemming from his armed robbery of B.B. King’s Restaurant and Blues Club in Memphis. The Court of Criminal Appeals and the Tennessee Supreme Court upheld Mr. Whitehead’s conviction and sentence on direct appeal. In 2007, the United States Supreme Court also declined to hear his case.

In 2008, Mr. Whitehead, representing himself, filed a petition for post-conviction relief in the Criminal Court for Shelby County. The petition was late because Mr. Whitehead’s former lawyer had given him an incorrect filing deadline and also had delayed sending the case files to Mr. Whitehead.

The trial court summarily dismissed Mr. Whitehead’s petition because it was late. However, the Court of Criminal Appeals reversed that decision and directed the trial court to hold a hearing to decide whether Mr. Whitehead was entitled to be excused from the filing deadline. The trial court conducted a hearing and declined to excuse Mr. Whitehead from complying with the deadline. The Court of Criminal Appeals affirmed the trial court’s decision.

Today, in a divided opinion, the Supreme Court reversed the trial court and the Court of Criminal Appeals and decided that this case was one of the rare instances where a prisoner should be excused from the deadline for filing post-conviction petitions.

The Court decided that Mr. Whitehead’s lawyer had effectively abandoned him by failing to promptly inform him that the United States Supreme Court had declined to hear his case, by providing him with an incorrect deadline for filing his post-conviction petition, and by failing to provide him with his legal files in a timely manner. Because of the conduct of his former lawyer, the Court decided that Mr. Whitehead was deprived of a fair opportunity to present his post-conviction claims and that he should be given a chance to have his petition considered.

Justice Janice M. Holder disagreed with the Court. Justice Holder concluded that Mr. Whitehead’s case did not present an extraordinary circumstance justifying relief from the statutory post-conviction deadline because Mr. Whitehead had not been abandoned by his attorney.

In her view, Mr. Whitehead knew that his attorney’s representation ended at the time the U.S. Supreme Court denied his application for appeal and that it was his responsibility to prepare and file his own post-conviction petition. Because Mr. Whitehead had sufficient time to file his own petition despite his former attorney’s negligent conduct, Justice Holder found no reason to create another due process tolling exception.

To read the Artis Whitehead v. State of Tennessee opinion, authored by Justice William C. Koch, Jr., and the dissenting opinion, authored by Justice Janice M. Holder, visit the Opinions section of