### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs S eptem

ber 10, 200 2 MELVIN JOHNSON v. STATE OF TENN ESSEE Direct Appeal from the Criminal Court for Shelby County

No. P-26159 J.C. McLin, Judge

No. W2002-00904-CCA-R3-PC - F iled October 15, 2002

The Sh el by C ou nt y Crimi nal Court dismissed the petition for post-conviction relief filed by the petitioner, Melvin Johns on, as untimely under the one-y ear sta tute of limitations. In this appeal, the sole issue before this court is whethe r the pet itioner’ s alleg ation tha

t he was h oused in

a thera peutic community

with limite d acces s to lega l informa tion tolls the statute of limitations. Upon review of the rec ord, we a

ffirm the judgmen t of the tr ial cour t. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed J OE G. R ILEY , J., delivered the opinion of the court, in which J OSEPH M. T IPTON and D AVID G. H AYES , JJ., joined. James E. Thomas, Memphis, Tennessee, for the appellant, Melvin Johnson. Paul G. Summers , Attorne y General and Repor

ter; P. Robin Dixon, Jr., A ssistant A ttorney Genera l; William L. Gibbons, District Attorney General; and Ray

mond J. Lepone, Assistant District Attorney General, for the appellee, State of Te nnessee.

OPINION On October 20, 2000, the petitioner, Melvin Johnson, pled gu ilty to attempted first degree murder and was sentenced to fifteen y ears in the Department of Correction. On February 15, 2002, the petit ioner , acti ng pro se, filed a petition for post-conviction relief, alleging ineffective assistance of counsel and an involuntary guilty plea. He noted in his petition that he was filing beyond theoneyear statute of limitationsbecause

he was housed in a “

therape utic community

” with “li mited acc ess to legal assistance and no law books.” The trial court dismissed the petition as untimely under the one-yea r statute of limitations. This appeal followed. The petitioner contends that due to his segre gation f

rom the g eneral

prison pop

ulation, he did nothave ac cess to a

dequate legal m aterial s and ade quate le gal ass istance , thus viola ting his-2-

constitutional right to access to the courts. The petitioner further c ontends the one-ye ar statute of limitations should be tolled as a result. We disagree.

Under the current

Post-Conviction Proce dure Ac t, all petitions must be filed within one (1) ye ar of the

date of t he final action of the high est state appellate court to which an appeal is taken or, if no appea l is taken, within one

(1) y ear of t he date on which the judgment became final, or c o nsideration of such petition shall be barred. Tenn. Code Ann. § 40-30-202(a). The statute furt her prov id es that a court may consider a petition filed outside the one-year period if (1) a new constitutional right has been recognized; (2) the petitioner’s innocence has been established by new

scientific evidence; or (3) a previous conviction that enhanced the petitioner’s sentence has been held to be invalid. Tenn. Code Ann. § 40-30-202( b)(1)–(3). In addition to the exceptions expressed in the statute, the Tennessee Supreme Court has held a court may consider a

n otherwise untimely petition if the application of the statute of limitations wou ld be a denial of due process. Burfor d v. State , 845 S.W.2d 2 04, 208 (T enn. 1992 ). Thus, a mentally incompetent petitioner is entitled to tolling relief during the period of incompetency

. Seals v. State , 23 S.W.3d 272, 279 (Tenn. 2000). In the present

action, t he plea a nd senten ce wer e enter ed in Octo ber 2000 . The pet

itioner di d notfile a petition for post-c onviction relief until February 15, 2002, well over one y ear after final judgment. The petitioner asserts that the statute of limitations should be tolled because he l acked t he adequa te legal r esource s and assi stance r

equired to prepare the petition as a result of his incarceration in a segr egate d area o f the stat

e penite ntiary . Neither

the due pr

ocess exc eption nor

the statut o r y exceptions for u nt imely

filing li sted in Te

nnessee Code Anno tated se ction 40- 30-202(b ) apply in this c ase. See William L

ynn Johnson v. Sta

te , No. 02C01 -9605-CR- 00136, 199 7 Tenn. Cr im . App

. LEXIS 555, at **8-9 (Te nn. Crim. App. June 10, 1997, at Jackson), perm. to app. denied (Tenn. Sept. 15, 19 97) (h oldi ng t hat incarceration in a federal prison without ac cess to Tennessee legal resources does not fall within the statutory exceptions nor the Burford exception ); Freddie

Mans v. State , No. 02C01-9605-CR-00147, 1997 Tenn. Crim. App. LEXI S 548, at **9-11 (Tenn. Crim. App. June 9, 1997, at Jackson), perm. to app. denied (Tenn. Dec. 8, 1997). In ac co rdance with prevailing case law , we hold the petitioner’s lack of adequate leg al resources does not

toll the one-year

statute of limitations. We affirm the trial court’s dismissal of the petition for post-conviction relief.

___________________________________ JOE G. RILEY, JUDGE