Matias Dudley v. State of Tennessee

11/06/2026 IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs September 15, 2026 MATIAS DUDLEY v. STATE OF TENNESSEE Appeal from the Circuit Court for Montgomery County No. CC-2019-CR-521 William R. Goodman, III, Judge ___________________________________ No. M2025-02035-CCA-R3-PC ___________________________________ The Petitioner, Matias Dudley, appeals the post-conviction court’s dismissal of his petition for post-conviction relief as untimely. He argues that he is entitled to tolling of the statute of limitations because he did not receive discovery from trial counsel before the limitations period expired and that the information contained in the discovery establishes his actual innocence. After review, we affirm the judgment of the post-conviction court. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed CAMILLE R. MCMULLEN, J., delivered the opinion of the court, in which JILL BARTEE AYERS and STACY L. STREET, JJ., joined. Gregory D. Smith, Clarksville, Tennessee, for the appellant, Matias Dudley. Jonathan Skrmetti, Attorney General and Reporter; Ronald L. Coleman, Senior Assistant Attorney General; Joshua R. Gilbert, Assistant Attorney General (pro hac vice); Robert J. Nash, District Attorney General; and Michael Pugh, Assistant District Attorney General, for the appellee, State of Tennessee. OPINION At the March 14, 2022 guilty plea hearing, the Petitioner agreed to the following facts in support of his guilty plea: [T]he events that I’m going to describe, actually, occurred out on McGregor Road, out in the County, and it, actually, has [an] Adam[]s address.  On the evening, early evening of [February l, 2019],1 sometime around 6:00 p.m., the [Petitioner] was a passenger in an automobile driven by Mr. David Brian, Captain Tossie, that pulled up into the driveway of a residence, where -- I cannot remember if it was the victim, Jason Stewart (phonetic). I believe, it was his brother that, actually, lived in the residence. There were several people there outside, at that time. They pulled up. The driver of the car that [the Petitioner] was in, got out, and went up, and talked to one of the individuals there at the residence. At that time, the victim in this case, Mr. Jason Stewart, actually, approached the driver of the car, asked him who was in the car with him. He was told that it was [the Petitioner]. At that point, the victim, Mr. Stewart, approached the car, the driver’s side -- or the passenger’s side of car, where [the Petitioner] was seated. [The Petitioner] got out of the car. Opened the door, and got out of the car, and started shooting at him. The victim ran from him, through the driveway into the front yard. And was shot multiple times by the [Petitioner], who was chasing him. Including a couple of times, when he was already on the ground. The victim did suffer four bullet wounds from this case, including one that was fired directly into his back. And he died as a result of that. The background of the story is that the victim had previously accused the [Petitioner] of having broken into his residence and fired a shot at him. They already had some history there. It -- it was very bad blood to that extent. And that is what was believed to be the motive of this. There were -- as I said, there were several witnesses there, who watched the incident occur and identified [the Petitioner] as the shooter. At the guilty plea hearing, the Petitioner agreed to plead guilty to second-degree murder. During the guilty plea colloquy, the Petitioner stated that he understood the terms of his plea agreement. The Petitioner agreed that he was guilty of the offense of second- degree murder. The Petitioner also agreed that he was given the opportunity to discuss his 1 Although the prosecutor gave the date as September 1, 2019 at the hearing, the indictment, which was issued in May 2019, gives the offense date as February 1, 2019. -2- case in detail with trial counsel, and that trial counsel “fully explained [] all the possibilities in this case, so far as the potential punishment and the terms of this settlement.” The Petitioner acknowledged that he was satisfied with trial counsel’s representation. The trial court accepted the Petitioner’s guilty plea and sentenced the Petitioner as a Range I, standard offender to twenty years in confinement. Two years later, on July 15, 2024, the Petitioner filed a pro se petition for post- conviction relief, alleging that he was denied effective assistance of counsel because trial counsel failed to advise him of a Tennessee Bureau of Investigation (“TBI”) ballistics report and a medical examiner’s report that would have led him to proceed to trial rather than enter a guilty plea.2 The Petitioner also asserted that his guilty plea was “involuntarily entered without understanding the nature and consequences of the plea.” In his petition, the Petitioner conceded that his filing exceeded the one-year statute of limitations. He asserted that his late filing should not bar his claim stating, Do [sic] to poor advice from Petitioner’s trial attorney who improperly advised the Petitioner regarding his Post-Conviction Appeal rights. Petitioner was told that because he took a plea agreement then he would not be able to appeal his conviction. Petitioner found out recently from another inmate that he did have a right to appeal a plea deal under certain circumstances through Collateral Review. Petitioner now prays that this Honorable Court will consider this Petition in light of the Petitioner’s lack of counsel and limited access to legal materials. The post-conviction court subsequently appointed counsel; however, no amended petition was filed. The State filed a written response to the Petitioner’s petition contending that the petition was time-barred and “does not meet the requirements under [Tennessee Code Annotated section] 40-30-117 to extend the 1-year statute of limitations.” The State also denied the allegation that the Petitioner received ineffective assistance of counsel. On December 10, 2025, the post‑conviction court held an evidentiary hearing to address the timeliness of the Petitioner’s post‑conviction petition and his claim of ineffective assistance of counsel. At the outset, the court noted that the Petitioner entered 2 The Petitioner raised a number of other issues and grounds of ineffective assistance of counsel in his petition for post-conviction relief and at the post-conviction hearing including that he was unaware of the following: (1) there were no ballistics on the shell casings of the handguns seized for evidence; (2) the prosecution failed to disclose that there was a black tool bag found on the victim; (3) the witnesses made inconsistent statements; (4) there was no ballistic residue on the test results from the Petitioner’s hands or clothing; and (5) victim’s toxicology shows three controlled substances. These issues were not raised on appeal. Accordingly, we do not address them. -3- a guilty plea on March 14, 2022, and did not file his post‑conviction petition until July 15, 2024—more than two years later. The State argued that the petition was therefore time‑barred and that none of the statutory exceptions permitting late filing applied. The Petitioner testified on his own behalf and acknowledged that his petition was filed more than one year after his guilty plea. He stated, however, that he filed late because “significant issues had come to light” only after he entered prison. Specifically, the Petitioner testified that he was unaware at the time of his plea that the victim had sustained gunshot wounds involving different‑sized bullets, which he believed indicated the involvement of another shooter. He maintained that, had he known this information, he would have rejected the plea and insisted on a trial. The Petitioner further explained that he did not tell the trial court during the plea colloquy that he wished to proceed to trial because he believed, at the time, that trial counsel had fully investigated the case, questioned witnesses, and possessed all relevant information. He testified that he later began to suspect he had not received all case materials only after entering prison and accessing the legal library. According to the Petitioner, he wrote to trial counsel in January 2023—before the expiration of the one‑year statute of limitations—requesting discovery and other case materials. He testified that counsel replied that the Petitioner would need to pay for the materials. However, the Petitioner did not introduce the alleged January 2023 letter into evidence, and no corroborating documentation appears in the record. Beyond the different size of the bullets, the Petitioner identified multiple issues he claimed were unknown to him at the time of the plea: the absence of ballistics testing on shell casings or firearms; the presence of a burglary tool and black bag allegedly found on the victim; inconsistent witness descriptions, including statements that the shooter had dreadlocks despite the Petitioner having a short Afro; lack of gunshot residue test results; and the victim’s toxicology testing report indicating the presence of controlled substances. He contended that knowledge of these matters would have altered his understanding of the case and his decision to plead guilty. On cross‑examination, the Petitioner acknowledged that two letters admitted as exhibits reflected that trial counsel had previously mailed him discovery, and he agreed that he had received those materials, though he denied receiving the ballistics or medical examiner’s reports specifically. Trial counsel testified that it was his standard practice to provide clients with all discovery materials received from the State, to review those materials with them, and to request additional discovery when necessary. Consistent with this practice, he testified that he provided the Petitioner with all paper discovery in his possession and reviewed it with him, including the TBI ballistics report and the medical examiner’s report. The record contains letters transmitting “initial” and “additional” discovery in 2019 and 2020, but the -4- letters do not itemize specific documents, and no independent documentation establishes that the ballistics or medical examiner reports were included. Counsel further testified that the Petitioner’s claim that they met only once was inaccurate; instead, they met multiple times at the jail, in court, and through video communications. Regarding the Petitioner’s decision to plead guilty, counsel testified that the Petitioner repeatedly vacillated between wanting to plead guilty and wanting to go to trial. Counsel stated that he discussed the case extensively with the Petitioner and provided an evaluation of the evidence and the risks of trial. Counsel explained that the State possessed significant eyewitness testimony indicating that the victim attempted to enter the Petitioner’s vehicle, subsequently fled, and was pursued and shot in the back by the Petitioner. One witness would have testified that the Petitioner stood over the victim and stated, “Does anybody else want some?”—evidence counsel believed would seriously undermine any claim of self‑defense. Counsel testified that based on the available evidence, the Petitioner did not have a viable self‑defense theory and that he conveyed this assessment to the Petitioner. On cross‑examination, counsel testified that he likely knew during plea negotiations that the medical examiner had identified two bullet calibers but did not specifically recall the details. He further testified that the existence of two calibers would not necessarily indicate the presence of a second shooter because some firearms are capable of firing multiple calibers. When asked whether, in hindsight, there was anything he should have told the Petitioner that he did not, counsel responded that he believed he and the Petitioner had “covered everything very thoroughly.” Importantly, trial counsel was never asked about the Petitioner’s intent to seek post‑conviction relief, his requests for his files, or his allegation that counsel refused to provide the files without payment. Finally, although the Petitioner claimed that additional witnesses (Kimberly Nettles, Christopher McQuarter, and Frank Allan) would have offered testimony favorable to his defense, none of these witnesses testified at the evidentiary hearing, and the Petitioner introduced no written or recorded statements from them. The only evidence before the court concerning eyewitness descriptions was the factual basis from the plea hearing and trial counsel’s testimony. In closing argument, post-conviction counsel contended that, under Tennessee Code Annotated section 40-30-117(a)(4), the information contained in the TBI ballistics report and the medical examiner’s report would have “made a difference on the actual innocence.” Post-conviction counsel also argued that the Petitioner’s plea was not a “full and knowing plea” because he was unaware that there were potentially two shooters. The State argued that the issue “does not rise to the requirements in subsection (4), that if true, would establish by clear and convincing evidence that the Petitioner is entitled to have the -5- conviction set aside or the sentence reduced.” The State further argued that trial counsel testified that both reports, which identified both bullet calibers, had been provided to the Petitioner in discovery before he entered his guilty plea. The State further argued that, even if two different bullets were involved, that fact did not establish the Petitioner’s actual innocence or demonstrate that he was not one of the shooters. By written order on December 18, 2025, the post-conviction court found that the petition was time-barred under Tennessee Code Annotated section 40-30-102. The post- conviction court also found that the Petitioner’s claim that trial counsel’s deficiency establishes his actual innocence was “without merit.” The court noted that “there was more than one (1) witness to the events which serve as the basis for the second-degree murder” and that “there has been no proof presented which establishes the actual innocence of the Petitioner.” The post-conviction court also denied the Petitioner’s ineffective assistance of counsel claim stating, In this case this court finds that Petitioner was furnished with competent counsel, that counsel fully explained the legal issues, and possible outcomes, in the event Petitioner proceeded to trial. Petitioner, after having received the benefit of his attorney’s counsel and advice, voluntarily and knowingly accepted the offer of settlement, and entered a plea of guilty [to] the offense of Secon[d] Degree Murder. The Petitioner filed a timely notice of appeal. ANALYSIS The Petitioner does not contest the untimeliness of his petition for post-conviction relief.3 Instead, the Petitioner contends, as the first issue presented in his brief, that “[t]he post-conviction relief petition should be considered timely filed since [the Petitioner] did not learn of issues until after the [] statute of limitations had expired and has no control of receiving relevant information[.]” Embedded in the argument section of this issue is a single sentence asserting, “[i]n the alternative, since there exists an actual innocence issue of which (of at least two guns) bullet caliber killed the victim – a Tenn. Code Ann. § 40- 3 Because the Petitioner did not pursue a direct appeal, the statute of limitations began to run thirty days after the entry of the judgment on March 14, 2022, when the trial court entered its final judgment. Tenn. Code Ann. § 40-30-102(a); Tenn. R. App. P. 4(a), (c). Accordingly, the deadline for filing a post- conviction petition was March 14, 2023. The Petitioner did not file the petition until July 15, 2024—more than one year after the expiration of the statute of limitations. -6- 30-102(b)(2) ‘actual innocence’ issue should toll the statute of limitations[.]”4 The State responds, and we agree, that the Petitioner failed to establish any basis for tolling the statute of limitations. As an initial matter, we note that the Petitioner risks waiving consideration of his actual-innocence claim because he failed to identify the issue in the statement of the issues and failed to support the claim with meaningful argument, citation to the record, or authority. See Tenn. R. App. P. 27(a)(4), (7)(A). Nevertheless, examining the issues and argument together as directed by our supreme court, we conclude that the claim is sufficiently presented for review. See Trezevant v. Trezevant, 696 S.W.3d 527, 530-31 (Tenn. 2024). Accordingly, we address the issue on the merits. I. Statutory Tolling. The Petitioner contends that his untimely petition should proceed under the “actual innocence” exception in Tennessee Code Annotated section 40‑30‑102(b)(2). He argues that because he lacked a full understanding of the discovery materials or knowledge of the different caliber of bullets involved in the shooting at the time of his plea, his plea was not knowingly and voluntarily entered, and that this alleged lack of understanding “could” bring his case within subsection (b)(2)’s actual‑innocence provision. The State argues that the Petitioner did not present any new evidence, and the evidence he referenced in the hearing came from the medical examiner’s report and the ballistics report, which trial counsel provided to the Petitioner prior to his pleading guilty. The State further asserts that the evidence did not establish his actual innocence. The State contends that even if two people shot the victim, that does not prove that the Petitioner was not one of them. We agree with the State. The question of whether the post-conviction statute of limitations should be tolled is a mixed question of law and fact that is subject to de novo review. Bush v. State, 428 S.W.3d 1, 16 (Tenn. 2014) (citing Smith v. State, 357 S.W.3d 322, 355 (Tenn. 2011)). In general, a petition for post-conviction relief must be filed “within one (1) year of the date of the final action of the highest state appellate court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment became final[.]” Tenn. Code Ann. § 40-30-102(a). “Time is of the essence of the right to file a petition for post-conviction relief or motion to reopen established by this chapter, and the one-year limitations period is an element of the right to file the action and is a condition upon its exercise.” Id. In the event that a petitioner files a petition for post-conviction relief outside 4 The second issue is “Appointed counsel rendered ineffective assistance of counsel in violation of the VIth Amendment of the U.S. Constitution and/or Art. I § 9 of the Tennessee Constitution because Petitioner/Appellant did not make a knowing and voluntary guilty plea to Second Degree Murder.” We do not reach this issue because the Petitioner failed to establish either statutory and due process tolling of the limitations period. -7- the one-year statute of limitations, the trial court is required to summarily dismiss the petition. See id. § 40-30-106(b). However, Tennessee Code Annotated section 40-30-102(b) provides three exceptions to the statute of limitations for petitions for post-conviction relief: No court shall have jurisdiction to consider a petition filed after the expiration of the limitations period unless: (1) The claim in the petition is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial, if retrospective application of that right is required. The petition must be filed within one (1) year of the ruling of the highest state appellate court or the United States [S]upreme [C]ourt establishing a constitutional right that was not recognized as existing at the time of trial; (2) The claim in the petition is based upon new scientific evidence establishing that the petitioner is actually innocent of the offense or offenses for which the petitioner was convicted; or (3) The claim asserted in the petition seeks relief from a sentence that was enhanced because of a previous conviction and the conviction in the case in which the claim is asserted was not a guilty plea with an agreed sentence, and the previous conviction has subsequently been held to be invalid, in which case the petition must be filed within one (1) year of the finality of the ruling holding the previous conviction to be invalid. Id. § 40-30-102(b)(1)-(3).5 5 We note that the parties mistakenly cited and relied upon Tennessee Code Annotated section 40- 30-117, which provides, in relevant part, (a) A petitioner may file a motion in the trial court to reopen the first post- conviction petition only if the following applies: (1) The claim in the motion is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial, if retrospective application of that right is required. The motion must be filed within one (1) year of the ruling of the highest state appellate court or the United States supreme court establishing a constitutional right that was not recognized as existing at the time of trial; or (2) The claim in the motion is based upon new scientific evidence establishing that the petitioner is actually innocent of the offense or offenses for which the petitioner was convicted; or -8-  At the post-conviction hearing, the Petitioner argued that the actual innocence exception “could apply” based on the evidence concerning the victim’s gunshot wounds, asserting that the medical examiner’s report reflected two different bullet calibers. The Petitioner questioned which caliber of bullet caused the victim’s death and pointed to the medical examiner’s report as potentially indicating that another person’s bullet may have been involved. The Petitioner maintained that he had not been aware of the full extent of this evidence when he entered his guilty plea and that, had he known it, he would not have entered a guilty plea but would have proceeded to trial. Post-conviction counsel similarly argued to the post-conviction court that the critical question under the actual innocence exception was whether the undisclosed or inadequately understood evidence would have caused the Petitioner to proceed to trial rather than enter a guilty plea. Counsel specifically identified the possibility of two shooters as significant, arguing that if the Petitioner did not know that the evidence potentially indicated two shooters, the post-conviction court could not assume that the Petitioner entered a knowing and voluntary guilty plea. Counsel acknowledged that the theory was not necessarily that the newly discovered information itself conclusively established innocence but contended that the lack of a full and fair understanding of the evidence potentially brought the case within the statutory exception. Counsel asserted that “on the actual innocence, itself, if he didn’t have a knowing and voluntary plea[,]” then “potentially (4) could apply, and it can go forward to the merits of the case.” The Petitioner makes the novel argument that the “actual innocence” exception in Tennessee Code Annotated section 40‑30‑102(b)(2) applies because, in his view, he did not enter a knowing and voluntary plea. He asserts that he lacked the “full gamut” of discovery at the time of the plea and therefore did not fully understand the nature of the evidence against him. Based on this reasoning, he contends that his allegedly unknowing plea itself should qualify as a showing of “actual innocence” under subsection (b)(2), allowing his otherwise untimely post-conviction petition to proceed. In short, the (3) The claim asserted in the motion seeks relief from a sentence that was enhanced because of a previous conviction and the conviction in the case in which the claim is asserted was not a guilty plea with an agreed sentence, and the previous conviction has subsequently been held to be invalid, in which case the motion must be filed within one (1) year of the finality of the ruling holding the previous conviction to be invalid; and (4) It appears that the facts underlying the claim, if true, would establish by clear and convincing evidence that the petitioner is entitled to have the conviction set aside or the sentence reduced. Tenn. Code Ann. § 40-30-117. Because the text of section 40‑30‑102(b)(1)-(3), governing the statute of limitations, is virtually identical to section 40-30-117(a)(1)-(4), governing motions to reopen, this does not alter our analysis of the issue presented. -9- Petitioner attempts to use the validity of his plea—rather than new scientific evidence of innocence—as the basis for invoking the “actual innocence” exception. The Petitioner’s argument must fail for multiple reasons. First, the plain language of the statute requires new scientific evidence, not an unknowing or involuntary plea. Subsection (b)(2) applies only when “[t]he claim in the petition is based upon new scientific evidence establishing that the petitioner is actually innocent of the offense . . .” Tenn. Code Ann. § 40‑30‑102(b)(2) (emphasis added). The Petitioner points to no scientific evidence, new or otherwise. His argument instead focuses on what he did not understand when he pled guilty, and what he believes trial counsel failed to explain. These are voluntariness or ineffective‑assistance claims, not scientific‑evidence claims. The statute does not allow a petitioner to substitute a defective plea argument in place of scientific proof of innocence. The Petitioner’s own testimony further confirms that his argument fails to satisfy the requirement of scientific evidence. He testified he learned after the plea that bullets were of differing calibers, witness descriptions varied, and certain items or tests were not disclosed to him. But he offered no expert testimony, no ballistic analysis, no new scientific testing, and no evidence showing that another person fired the fatal shot. Indeed, the very reports upon which he relied to support his actual innocence claim, the TBI ballistics report and the medical examiner’s report, were not offered into evidence at the post-conviction hearing. At most, the Petitioner presented speculative contradictions or gaps in the record—not scientific evidence affirmatively establishing innocence. Additionally, an unknowing or involuntary plea—even if true—does not establish actual innocence. “Actual innocence” in Tennessee requires evidence showing that no reasonable juror would have convicted the petitioner in light of the new scientific proof. Ivy v. State, No. W2010-01844-CCA-R3-PD, 2012 WL 6681905, at *29 (Tenn. Crim. App. Dec. 21, 2012), perm. app. denied (Tenn. April 9, 2013) (quoting Cribbs v. State, No. W2006-01381-CCA-R3-PD, 2009 WL 1905454, at *35 (Tenn. Crim. App. July 1, 2009), perm. app. denied (Tenn. Dec. 21, 2009)). It is not enough to show that the petitioner would have chosen a trial, that he would have received more discovery, or that his plea may have been less than fully informed. Those contentions, even if accepted, do not establish that he did not commit the offense. Here, the Petitioner’s argument rests on the fact that the victim sustained gunshot wounds involving bullets of a different caliber, which he contends suggests the involvement of two shooters. However, the presence of two shooters does not eliminate the possibility that the Petitioner was one of them. Additionally, as the post-conviction court correctly noted, multiple witnesses could identify the Petitioner as the shooter. Thus, the Petitioner failed to establish by clear and convincing evidence that no jury would have convicted him in light of the evidence upon - 10 - which he relies. The Petitioner’s argument therefore does not qualify as evidence of actual innocence under subsection (b)(2). The record also supports our conclusion that the Petitioner’s argument fails to satisfy subsection (b). The evidence from the medical examiner’s report and the TBI ballistics report upon which the Petitioner relies cannot be considered “new.” Trial counsel testified that he provided the Petitioner with both reports before the Petitioner entered his guilty plea. Although the Petitioner testified that he was unaware of the reports before entering his plea, he acknowledged on cross-examination that he had received discovery from trial counsel. Two letters in the record confirm that trial counsel sent the Petitioner a copy of his initial discovery on June 21, 2019, and additional discovery on March 9, 2020. Although the Petitioner acknowledged having received discovery from counsel, the Petitioner maintained he never received the TBI report or the medical examiner’s report. The post-conviction court implicitly credited counsel’s testimony that he knew about the reports and provided them to the Petitioner prior to entry of the guilty plea. Because the record indicates that the evidence upon which the Petitioner bases his actual-innocence claim was provided to him before he pleaded guilty, it does not constitute the “new scientific evidence” required to invoke the statutory exception. Finally, interpreting section (b)(2) as the Petitioner suggests permits challenges to the voluntary nature of a guilty plea or ineffective assistance claims to satisfy the “actual innocence” exception under subsection (b)(2) and conflates the separate doctrines of plea validity and actual innocence, which Tennessee law has consistently maintained as distinct. See Keen v. State, 398 S.W.3d 594, 612 (Tenn. 2012) (finding that “‘actually innocent of the offense’ means nothing other than that the person did not commit the crime”); Summers v. State, No. M2023-00103-CCA-R3-PC, 2024 WL 111292, at *2 (Tenn. Crim. App. Jan. 10, 2024) (addressing separately claims concerning the validity of the petitioner’s guilty plea and his claim of actual innocence); Dellinger v. State, 279 S.W.3d 282, 290-92 (Tenn. 2009) (explaining that the actual-innocence exception permits a freestanding claim of actual innocence based on new scientific evidence and is distinct from constitutional claims challenging the conviction). Construing section (b)(2) this way would also effectively allow voluntariness claims to bypass the limitations period through the actual innocence exception. Such a construction would erode the finality of guilty pleas and encourage collateral challenges based on non-scientific grounds long after conviction—even in the absence of new exculpatory evidence. This result would contravene the clear statutory text, legislative intent that section (b)(2) be narrowly tailored to avoid swallowing the one- year post-conviction statute of limitations, judicial precedent, and the systemic need for finality in plea-based convictions. Accordingly, misunderstanding of or ill advice at a guilty plea does not qualify as “new scientific evidence” and does not satisfy section 40‑30‑102(b)(2). - 11 -  In sum, the Petitioner’s argument addresses the quality of counsel’s advice, not the scientific innocence exception, and therefore does not bring his untimely petition within the statute’s jurisdictional gateway. Accordingly, the post-conviction court properly determined that the Petitioner failed to establish proof of actual innocence, and the Petitioner is not entitled to relief. II. Due Process Tolling. The bulk of the Petitioner’s argument on appeal is that he is entitled to due process tolling of the one-year statute of limitations based on attorney misconduct. Specifically, he argues that he “sent requests for his discovery information to both the State and his former counsel in January 2023 – before the Tenn[essee] Code Ann[otated] [section] 40-30-102(a) statute of limitations would have expired[,]” but received no response. According to the Petitioner, because he did not receive the discovery in response to his request, he was unable to obtain the information he needed to file his post-conviction petition within the limitations period. Relying on Paul v. State and Houston v. Lack, the Petitioner argues that an incarcerated petitioner should not be penalized for delays attributable to persons outside his control. See Paul v. State, 75 S.W.3d 926, 928-29 (Tenn. Crim. App. 2001) (interpreting and applying the prison mailbox rule); Houston v. Lack, 487 U.S. 266, 270-76 (1988) (same). The State argues that the Petitioner did not claim in his petition for post-conviction relief that his attorney did not timely respond to the letters or that it was attorney misconduct which entitles him to due process tolling. The State further asserts that failure to respond to letters, “is not the kind of attorney misconduct contemplated by due process tolling as it is not deception or misconduct.” The State argues the Petitioner had already been provided with all the discovery in the case and therefore should have been able to prepare the petition regardless of whether counsel responded. The State distinguishes Paul, where the petitioner delivered an actual petition to prison authorities, from this case because the Petitioner only asked counsel for information. Paul, 75 S.W.3d at 928. We must dispense with this issue in short order. As the State points out, the record reflects that the Petitioner did not include this issue in his petition for post-conviction relief. This issue was also not argued before or ruled upon by the post-conviction court. “A ground for relief is waived if the petitioner personally or through an attorney failed to present it for determination in any proceeding before a court of competent jurisdiction in which the ground could have been presented” with certain exceptions not applicable here. Tenn. Code Ann. § 40-30-106(g). “‘[I]ssues not addressed in the post-conviction court will generally not be addressed on appeal.’” Holland v. State, 610 S.W.3d 450, 458 (Tenn. 2020) (first quoting Lane v. State, 316 S.W.3d 555, 561-62 (Tenn. 2010); and then Walsh v. State, 166 S.W.3d 641, 645-46 (Tenn. 2005)). Furthermore, “the plain error rule, which would otherwise permit an appellate court to address the issue sua sponte, may not be applied in post-conviction proceedings to grounds that would otherwise be deemed waived - 12 - or previously determined.” Id. (first quoting Grindstaff v. State, 297 S.W.3d 208, 219 (Tenn. 2009); and then citing State v. West, 19 S.W.3d 753, 756-57 (Tenn. 2000)). “Tennessee appellate courts may only consider issues that were not formally raised in the post-conviction petition if the issue was argued at the post-conviction hearing and decided by the post-conviction court without objection.” Holland, 610 S.W.3d at 458 (citations omitted). The only issue raised at the post-conviction evidentiary hearing and relied upon by the Petitioner was whether he satisfied Tennessee Code Annotated section 40‑30‑102(b)(2), the actual innocence exception. Indeed, beyond the Petitioner’s assertion that counsel ignored his requests for the file, the record is devoid of proof in support of this issue. Because due process tolling based on attorney misconduct was not raised in the Petitioner’s petition for post-conviction relief, argued at the evidentiary hearing, nor ruled upon by the post-conviction court, we conclude that the claim is waived under Tennessee Code Annotated section 40-30-106(g). Accordingly, the post-conviction court correctly determined that the Petitioner failed to timely file his petition for post-conviction relief. Because the Petitioner did not establish that he was entitled to tolling of the one-year statute of limitations, the post- conviction court was required to dismiss the petition as untimely. Tenn. Code Ann. § 40- 30-106(b). The Petitioner is not entitled to relief. CONCLUSION Upon review, we affirm the judgment of the post-conviction court. S/ Camille R. McMullen____________ CAMILLE R. MCMULLEN, JUDGE - 13 -