Lynn Frank Bristol v. State of Tennessee

battery for incidents involving his stepdaughter. The Petitioner subsequently filed for post-conviction relief, alleging ineffective assistance of counsel. Counsel was appointed and filed an amended petition. During an evidentiary hearing, the parties agreed that the petition was timely, and the State did not object to the absence of verification of the petition as required by Tennessee Code Annotated section 40‑30‑104(d) and (e). The post-conviction court denied relief, and the Petitioner now appeals. The State asserts for the first time on appeal that the petition was time-barred, the post-conviction court was without jurisdiction to consider it, and it should therefore be dismissed. The Petitioner acknowledges that his certificate of service was neither sworn to nor notarized. He nevertheless asserts that the certification of service was adequate proof of prison mailbox rule compliance; therefore, his petition was timely. At oral argument in this case, the parties requested and this court granted supplemental briefing on whether the absence of verification under section 40‑30‑104(d) and (e) required dismissal of the petition. We now hold that the verification requirement is a mandatory procedural rule. Because the State failed to invoke its procedural-based verification claim until after the evidentiary hearing, we conclude this issue has been forfeited, and dismissal of the petition is not warranted. We also conclude that the Petitioner presented sufficient proof for a threshold showing of compliance with the prison mailbox rule pursuant to Butler v. State, 92 S.W.3d 387, 390 91 (Tenn. 2002) (concluding that petitioner’s claim that he delivered pro se petition to a prison official for filing within the statute of limitations was sufficient for him to be given the opportunity at an evidentiary hearing to meet his burden of showing by a preponderance of the evidence his compliance with Tennessee Supreme Court Rule 28, § 2(G)). Therefore, we reverse and vacate in part the judgment of the post-conviction court and remand the case for an evidentiary hearing on the issue of timeliness of the petition for post-conviction relief.