State Tennessee v. Albert G. Phillips

The petitioner, Albert G. Phillips, appeals as of right from the dismissal of his petition for post-conviction relief by the Anderson County Criminal Court on the ground that it is barred by the three-year statute of limitations. His petition alleges that he was convicted in 1985 of first degree murder. The conviction was affirmed on appeal. State v. Albert G. Phillips, et al., C.C.A. No. 160, Anderson Co. (Tenn. Crim. App. Nov. 4, 1986), app. denied (Tenn. Feb. 9, 1987). In summary fashion, the petition alleges that his conviction was the direct consequence of the ineffective assistance of counsel ""in that his attorney failed to properly prepare his defense, failed to properly investigate the charge and was ineffective and deficient on the appeal,"" that he was the ""victim of misconduct by the prosecution and suffered prejudice due to overzealous acts of overreaching by said prosecution,"" and that he ""suffered prejudice to his defense by the abuse of discretion on behalf [of] the trial court."" The state filed a motion to dismiss on the ground that the three-year statute of limitations, see T.C.A. § 40-30-102, barred the filing of the petition. In response, the petitioner alleged that before the three years had expired, he had an attorney review his case and the attorney advised him against filing a post-conviction petition. He asserts that the attorney's advice constitutes the ineffective assistance of counsel so as to allow him the right to file his petition regardless of when the three years expired.