first prong test in Tennessee

2025Moreover, tolling “‘must be reserved for those rare instances where—due to circumstances external to the party’s own conduct—it would be unconscionable to enforce the limitation period against the party and gross injustice would result.’” Id. at 631-32 (quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)). -4- Prior to Whitehead and Bush, the court had specifically identified the following three circumstances in which due process requires tolling the statute of limitations: (1) when the claim for relief arises after the statute of limitations has expired; (2) when the petitioner’s

2019Moreover, tolling “‘must be reserved for those rare instances where—due to circumstances external to the party’s own conduct—it would be unconscionable to enforce the limitation period against the party and gross injustice would result.’” Id. at 631-32 (quoting Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000)).

2008To do this, a petitioner must establish that trial counsel’s “acts or omissions were so serious as to fall below an objective standard of reasonableness under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).

1997Baxter, 523 S.W.2d at 936 ; see also, Goad, 938 S.W.2d at 369 .

2007The second prong of the test for mental retardation under our statute requires “deficits in adaptive behavior” which has been defined as “the inability of an individual to behave so as to adapt to surrounding circumstances.” State v. Smith, 893 S.W.2d 908, 918 (Tenn.1995).

2006The second prong of the test for mental retardation under our statute requires “deficits in adaptive behavior” which has been defined as “the inability of an individual to behave so as to adapt to surrounding circumstances.” State v. Smith, 893 S.W.2d 908, 918 (Tenn. 1995).

2005We agree that in a breach of contract case, “after-acquired evidence of employee misconduct is a defense to a breach of contract action for wages and benefits lost as a result of the discharge if the employer can demonstrate that it would have fired the employee had it known of the misconduct.” O’Day, 959 P.2d at 799 . 2 This corresponds with the first prong of the test set forth in Lewis , which requires evidence of employee wrongdoing of “such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” 49

2005We agree that in a breach of contract case, “after-acquired evidence of employee misconduct is a defense to a breach of contract action for wages and benefits lost as a result of the discharge if the employer can demonstrate that it would have fired the employee had it known of the misconduct.” O’Day, 959 P.2d at 799 .2 This corresponds with the first prong of the test set forth in Lewis, which requires evidence of employee wrongdoing of “such severity that the employee in fact would have been terminated on those grounds alone if the employer had known of it at the time of the discharge.” 495

2022Under the first prong of the analysis, “pursuing one’s rights diligently ‘does not require a prisoner to undertake repeated exercises in futility or to exhaust every imaginable option, but rather to make reasonable efforts [to pursue his or her claim].’” Bush v. State, 428 S.W.3d 1, 22 (Tenn. 2014) (quoting Whitehead, 402 S.W.3d at 631 ).

2020Regarding the first prong of the analysis, the court stated that “pursuing one’s rights diligently ‘does not require a prisoner to undertake repeated exercises in futility or to exhaust every imaginable option, but rather to make reasonable efforts [to pursue his or her claim].’” Id. (quoting Whitehead, 402 S.W.3d at 631 ). “[T]he second prong is met when the prisoner’s attorney of record abandons the prisoner or acts in a way directly adverse to the prisoner’s interests, such as by actively lying or otherwise misleading the prisoner to believe things about his or her case that are not true.”

2021In contrast, if a government agent gives explicit or tacit approval to a search while the search is ongoing, the government becomes “party to the search.” United States v. Knoll, 16 F.3d 1313, 1319-20 (2nd Cir. 1994) (noting that a federal prosecutor “tacitly suggested and condoned further searching” of materials obtained during a burglary by telling the informant who arranged the burglary that the prosecutor was disappointed with the evidence the informant provided); see United States v. Booker, 728 F.3d 535, 540-41 (6th Cir. 2013) (holding that an emergency room doctor violated the defendant

2021In contrast, if a government agent gives explicit or tacit approval to a search while the search is ongoing, the government becomes “party to the search.” United States v. Knoll, 16 F.3d 1313, 1319-20 (2nd Cir. 1994) (noting that a federal prosecutor “tacitly suggested and condoned further searching” of materials obtained during a burglary by telling the informant who arranged the burglary that the prosecutor was disappointed with the evidence the informant provided); see United States v. Booker, 728 F.3d 535, 540-41 (6th Cir. 2013) (holding that an emergency room doctor violated the defendant

2021Relative to the first prong of the test, our supreme court held in State v. Johnson, 569 S.W.2d 808, 810-11 (Tenn. 1978), that an airline customer service agent did not act as an agent of the state when he inspected a suitcase, found drugs, and only then called the police; the court noted that the police had not been involved before the object of the search was “completely accomplished.” (quoting Lustig v. United States, 338 U.S. 74 (1949)).

2021In contrast, if a government agent gives explicit or tacit approval to a search while the search is ongoing, the government becomes “party to the search.” United States v. Knoll, 16 F.3d 1313, 1319-20 (2nd Cir. 1994) (noting that a federal prosecutor “tacitly suggested and condoned further searching” of materials obtained during a burglary by telling the informant who arranged the burglary that the prosecutor was disappointed with the evidence the informant provided); see United States v. Booker, 728 F.3d 535, 540-41 (6th Cir. 2013) (holding that an emergency room doctor violated the defendant

2020While the harm need not be inevitable, it must be sufficiently probable to prompt a reasonable person to believe that the harm will occur more likely than not. 83 S.W.3d 726, 732 (Tenn. Ct. App. 2001) (footnotes omitted). - 14 - This court has not reached consensus with respect to the manner in which the statute is to be interpreted in establishing the first element of this ground, as noted in In re Zaylee W.: There is a split in authority regarding the proof required to establish the first prong of the analysis.

2019Malkin v. Malkin (“Malkin I”), 475 S.W.3d 252, 257-58 (Tenn. Ct. App. 2015) (footnote omitted).2 With respect to this first prong of the analysis, we discussed the circumstances surrounding Husband’s recent retirement and whether his retirement constituted a substantial and material change in circumstances: It is well-settled that “when an obligor’s retirement is objectively reasonable, it does constitute a substantial and material change in circumstances—irrespective of whether the retirement was foreseeable or voluntary—so as to permit modification of the support obligation.” Bogan, 60 S.W.3

2018“Moreover, the due diligence inquiry is an individualized one that must take into account the conditions of confinement and the reality of the prison system.” Whitehead, 402 S.W.3d at 631 (quoting Downs v. McNeil, 520 F.3d 1311, 1323 (11th Cir. 2008)) (internal quotation marks omitted).

2018With respect to the first prong of the analysis, the Tennessee Supreme Court has considered the Act and concluded that “the registration requirements imposed by the sex offender registration act are nonpunitive.” Ward v. State, 315 S.W.3d 461, 472 (Tenn. 2010).

2009The first prong of the test may be satisfied in one of three ways: “In Tennessee there are three types of common scheme or plan evidence: (1) offenses that reveal a distinctive design or are so similar as to constitute ‘signature’ crimes; (2) offenses that are part of a larger, continuing plan or conspiracy; and (3) offenses that are all part of the same criminal transaction.” Shirley, 6 S.W.3d at 248 . “[B]efore multiple offenses may be said to evince a distinctive design, the ‘modus operandi employed must be so unique and distinctive as to be like a signature.’” Id. (quoting State v. Carter,