Russell Freels v. State of Tennessee, E2016-00021-CCA-R3-PC

Freels pled guilty in 1995 to first-degree murder and conspiracy; received concurrent life without parole and filed no direct appeal.
On March 17, 2015—almost 10 years after the one-year post-conviction statute expired—Freels filed a post-conviction petition alleging ineffective assistance of trial counsel.
Freels styled his filing as a petition to reopen prior post-conviction proceedings and invoked Sutton v. Carpenter, arguing a new constitutional right to effective assistance of post-conviction counsel that would toll the limitations period.
The post-conviction court dismissed the petition as time-barred, finding (1) it was Freels’s first post-conviction petition (not a reopening) and (2) he failed to identify a new constitutional right under Tenn. Code Ann. § 40-30-102(b)(1).
On appeal Freels advanced, for the first time, arguments that Martinez and due process require effective assistance of post-conviction counsel or tolling of the one-year limit; the State argued timeliness and waiver.
The Court of Criminal Appeals affirmed: Sutton did not apply; Tennessee courts decline to recognize a constitutional right to effective post-conviction counsel; Freels’s new appellate arguments were waived; no due-process tolling warranted given lack of diligence or extraordinary circumstances.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Timeliness under Tenn. Code Ann. § 40-30-102(a)	Freels: petition should be allowed despite one-year lapse because of tolling/new right	State: petition is untimely and must be dismissed	Petition dismissed as time-barred; Freels filed outside one-year limit
Applicability of Sutton v. Carpenter	Freels: Sutton establishes right to effective post-conviction counsel that excuses default/tolls limitations	State: Sutton inapplicable—Sutton addresses federal habeas/procedural default after a prior petition	Sutton not applicable; Freels’s filing was his first post-conviction petition, so Sutton cannot excuse timeliness
Constitutional right to effective assistance of post-conviction counsel (Martinez/ Coleman)	Freels: Martinez supports recognizing a right to counsel in first post-conviction petitions alleging trial counsel ineffectiveness	State: no such constitutional right; Tennessee law (Frazier) denies constitutional entitlement	Court: No constitutional right; Tennessee recognizes a statutory right and minimal standards, but not full constitutional protections
Due-process tolling / equitable tolling	Freels: due process requires tolling the one-year limitations for counsel-related claims	State: Freels failed to plead facts showing diligence or extraordinary external impediment; waiver of new arguments	Court: Tolling not warranted—Freels did not show diligence or extraordinary circumstances; arguments raised for first time on appeal are waived

Sutton v. Carpenter, 745 F.3d 787 (6th Cir. 2014) (ineffective assistance of post-conviction counsel may establish cause in federal habeas procedural-default context)
Frazier v. State, 303 S.W.3d 674 (Tenn. 2010) (no constitutional right to effective assistance of post-conviction counsel; only a statutory right with minimum standards)
Whitehead v. State, 402 S.W.3d 615 (Tenn. 2013) (due-process tolling of post-conviction limitations narrow and requires diligence and extraordinary circumstances)
Martinez v. Ryan, 566 U.S. 1 (2012) (in limited federal habeas context, ineffective assistance of post-conviction counsel can excuse procedural default of trial-ineffectiveness claims)
Bush v. State, 428 S.W.3d 1 (Tenn. 2014) (articulates requirements for due-process tolling: diligence plus extraordinary external impediment)