Brian Caswell McGrowder v. State of Tennessee

03/08/2018 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE December 12, 2017 Session BRIAN CASWELL MCGROWDER v. STATE OF TENNESSEE Appeal from the Criminal Court for Davidson County No. 2012-B-1817 Mark J. Fishburn, Judge ___________________________________ No. M2017-00751-CCA-R3-PC ___________________________________ The Petitioner, Brian Caswell McGrowder, appeals from the dismissal of his petition for post-conviction relief as untimely. The Petitioner contends that due process concerns should toll the one-year statute of limitations to allow review of his underlying claims. Upon our review, we affirm the judgment of the post-conviction court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which NORMA MCGEE OGLE and TIMOTHY L EASTER, JJ., joined. Manuel B. Russ, Nashville, Tennessee, for the appellant, Brian Caswell McGrowder. Herbert H. Slatery III, Attorney General and Reporter; David H. Findley, Senior Counsel; Glenn Funk, District Attorney General; and Janice Norman, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION Shortly after the seventeen-year old victim was evicted from her mother’s home, she moved into the Petitioner’s home, began a sexual relationship with him, and bore his child. State v. Brian Caswell McGrowder, No. M2013-01184-CCA-R3-CD, 2014 WL 4723100, at *1, 10 (Tenn. Crim. App. Sept. 23, 2014), perm. app. denied, (Tenn. Feb. 12, 2015). The Petitioner was the victim’s training supervisor at work and de facto caretaker. Id. at *10. As a result of his behavior, on July 17, 2012, a Davidson County jury convicted the Petitioner of statutory rape by an authority figure and aggravated statutory rape, for which he received an effective sentence of three years in confinement. On May 5, 2014, the Petitioner was released from prison and reported to the Sex Offender Registry as required the next day. Trial counsel sent the Petitioner a letter, dated February 13, 2015, which provided that the Tennessee Supreme Court’s denial of the Petitioner’s Rule 11 application ended the Petitioner’s direct appeal. The letter stated, in pertinent part: You have the right to file a petition for post-conviction relief, but I cannot assist you in that on the basis of my appointment by the trial court because my appointment extends only to the direct appeal of your conviction. Thus, the Tennessee Supreme Court’s denial of your application also marks the end of my representation of your [sic] for purposes of this case. On May 17, 2016, the Petitioner received a deportation notice from the Department of Homeland Security informing him that his status had changed due to his state convictions. At some point in May 2016, the Petitioner was taken into custody by federal authorities on an immigration hold. On October 17, 2016, the Petitioner filed a pro se petition for post-conviction relief. Post-conviction counsel was appointed, and an amended petition was filed on February 9, 2017.1 A post-conviction hearing was conducted on April 5, 2017; however, the Petitioner was not present and no proof was offered in support of his petition. ...

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