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Appellate panel hears challenge to dismissal of James David Duncan’s late post-conviction petition
Summary
At oral argument in an Anderson County appeal, defense counsel argued that due-process tolling under Whitehead should excuse a late petition for post-conviction relief; the state urged the court to defer to the post‑conviction judge’s credibility finding and affirm the dismissal. No decision was announced at argument.
An appellate panel heard oral argument over whether a post‑conviction court erred by dismissing James David Duncan’s petition as untimely, after defense counsel urged that due‑process tolling under Whitehead v. State should apply.
Appellant counsel M. Zinsser told the court that the central question is whether Duncan “diligently exercise[d] his rights” and whether “extraordinary circumstances” prevented timely filing. Zinsser said Duncan entered a guilty plea on Jan. 14, 2019, was revoked to Tennessee Department of Correction (TDOC) custody in January 2020, and that a pro se petition was filed Dec. 27, 2021, with an amended petition filed in July 2023. Zinsser asked the court to reverse the post‑conviction court’s dismissal and remand for further proceedings.
The attorney for the State, Will Lundy, urged the panel to affirm. Lundy said the post‑conviction court “completely discredited everything that the petitioner said” and that, because the record contains no corroborating evidence, the appellate court must defer to the trial court’s credibility findings unless the evidence preponderates against…
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