### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE MICHAEL S. NEELY v. STATE O F TENNESSEE Direct Appeal from the Circuit Court for Rutherford County No. F-41655, James K. Clayton, Trial Judge

No. M1999-1823-CCA-R3-PC - Decided June 2, 2000

Michael S. Neely app

eals from the Ruthe

rford County

Circuit Court’s dismi

ssal of his pro se petition for post-convictio

n relief. Th e trial court dismissed the petition as being barred by the statute of limitations. The appellant co ntends that the pet

ition was timely

filed by dep

ositing the petitio

n into the correctional facility’s

mailbox where he was incarcerated within the one year filing period. After review, we find the proof does not preponderate against the trial court’s finding that the petition was untimely filed as it failed to comply

with the fi ling requir ements gover ning pro se post-conviction petitions. Tenn. R. App. P. 3(b) A ppeal as of Right; Judg

ment of the Circ

uit Court is Affir

med. G LENN , J., delivered the opinion of the court, in which R ILEY , J., and A CREE , S P .J., joined. Darrell L. Scarlett, Murfreesboro, Tennessee, for the appellant, Michael S. Neely. Paul G. Summers, Attorney General and Reporter, Eliza

beth T. Ryan, Assist

ant Attorney Gene

ral, and William C. Whitesell, Jr., District Attorney General, for the appellee, State of Tennessee. OPINION The petitioner, Micha

el S. Neely, appe

als the order of the Rutherford County Circuit Court dismissing his petition for post -conviction reli

ef as barred by the sta

tute of limitations. I

n this appeal, the petitioner challenges the trial court’s dismissal arguing that his petition was timely filed when “h e deposited the [petition] into the correctional facility mailbox. . . .” After review , w e affirm.
On March 24, 1998, the petitioner entered pleas of nolo contendere to two counts of chi

ld rape for which he received a sentence of fifteen years in the Depar tment of Correction. No direct appeal was taken by the petitioner. He is currently incarcerated at the South Central Correctional Center. The petitioner’s post-conviction petition was received, stamped, and filed on the same date,-2-

June 3, 1999. The petitio ner’s petition is da

ted March 3, 1999,

and collaterally

atta cks hi s convictions upon grounds (1) that his guilty pleas werenot knowingly and vo luntarily entered and (2) of newly discovered evidence establishing his innocence. Rule 49(c) of the

Tennessee Rules o

f Criminal Procedu

re provides:
If petitions for post-conviction relief or other papers are prepared by or on behalf of a pro se litigant incarcerated in a correctional facility, filing shall be timely if

the papers are delivered to the appropriate individual at the corre ct ional facility within the time fixed for filing. (Emphasis added). Additionally, Rule 28, § 2(G) of the Rules of the Supreme Court o

f Tennessee pro

vides, in pertinent part, a

s follows:
A po st-conviction petition filed by a pro se petitioner who i s incarcerated

is filed when it is received by thea ppropriate prison authorities for mailing. Subsequently, this Rule was amended, effective November 2, 1999, to provide:

If papers required

or permitted to be filed by these rules are prepared by or on behalf of a

pro se petitioner

in carce rtated [sic] in a correctional facility and are not received by the clerk

of the court until after the time fixed for filing, filing shall be timel y if the papers were delivered to the appro pr iate individual at the correctional facility within the time fixed for filing. (Emphasis added). The petitioner testified that, on March 4, 1999, “h e deposited the [petition] into the correctional facility mailbox. . . .” The proof established that outgoing mail at South Central Correctional Center

may either be dropped in the general facility mailboxes or it may be delivered to the mailroom and se

nt out as certifie

d or registered m

ail in which case i

t is logged in . Genera l mail sent from the prison is not logged. The log books show no entries for mai l sen t by the petitioner for the month of March 1999. The only proof that supports the petitioner’s claim that the petition was timely filed is the petitioner’s own testimony. The record indicates that the petition for post-conviction relief was not filed with the Clerk’s Office until June 3, 1999, well outside the limitations period. Despite the petitioner’s unsupported assertions,there is no eviden ce that the petitio

ner timely deliver

ed the post-convic

tion petition to “the appropriate pri

son authorities fo

r mailing” within the

applicable

time for filing. No certificate-3-

of service was produced

at the hearing or on appeal. In a post-conviction case, the burden is on the petitioner to prove his grounds for relief by clear and convincing evidence. Tenn . C ode Ann. § 40-30-210 (f) (1 997). On appeal, we are bound by the trial court's findings unless the evidence preponderates against those fin di ngs. Black v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App.), perm . app . denied(Tenn. 1990). We conclude that the tria l court was authorized to dismiss the petition as being barred by the statute of limitations. See Tenn. Code Ann. § 40-30-206(b) (1997). Additionally, we note that the petitioner has failed to a ssert a ny claim that would qualify as an exception to the statute of limitations. See Tenn. Code Ann. § 40-30-202 (1 997). A ccordingly, summary dismissal of the petitioner's petition was proper. For the reasons discussed herein, the judgment of the trial court dismissing the petitioner's petition for post-conviction relief is affirmed.