1 The claims in the applicat ion for permission to appeal vary somewhat fro m the claims in th e motion to reope n. Our re view will be lim ited to the cla ims as set forth in th e mo tion to reop en. A post-convi ction pet iti on "must necessarily rest upon and be determined by the factual al legati ons it 

# FILED
April 1, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF T ENNESSEE AT KNOXVI LLE
DAVID LEE RICHARDS , * Appellant, * C.C.A. # 03C01-99 03-CR-00099 VS. * HAMIL TON COUNTY STATE OF TENNESSEE, * Appellee. * OPINION The pro se petitioner, David Lee R ichards, has filed an applica tion for permission to appeal the tri al court's order denyi ng his motion to reopen his petition for post-conviction rel ief. See Tenn. Code Ann. § 40-30-217. The state has responded in opposition to the moti on.

The petit ioner w

as conv icted of first degree mur

der and r

eceived a life sentence. The conviction and s entence were affirmed by this court on March 23, 1993. State v. David Lee Ri chards , No. 03C01-9207-CR-230 ( Tenn. Crim. App., at Knoxville, Mar. 23, 1993). An application for R ule 11 appeal was denied on Ju ly 6, 1993. Thereafter, the petitioner file d a petition for post-convi ction relief, alleging the ineffective assistance of counsel. The trial court den ied relief and this court affirmed. David Lee Richards v . State , No. 03C01- 9508-CR-00 219 (Tenn. Cr

im. App., at Knoxville, F

eb. 21, 1996). Rule 11 rev iew was denied June 3, 1996.
On February 24, 1999, the petitioner filed this motion to reop en. In his motion, he alleges a new constitutional right has been established that is applicab le to his case and that new scientific evidence exists which would show he is actually innocent of first degree murder. 1 See generally Tenn. Code Ann. § 40-30-217. Thecontains ." Long v. S tate , 510 S.W.2d 83, 85 (Tenn. Cri m. App. 1974). Al though we are rev iewing a motion to reopen, the same rational e applies.

2 Thereafter, the clerk of the tri al court se nt the pet iti oner a let ter advi sing him his case ha d been dismissed and that he had thir

ty day s to appeal t he dismissal. Under the Post- Convicti on Procedure Act, however, when a t rial co urt denies a motion to reopen , "the petiti oner shallhave ten (10) days t

o file an application in t he court of cr iminal appeal s seeking permission to appeal. " Tenn. Code Ann. § 40 -30-217 (c). 2 trial court entered an ord er on the court's minutes di smissing the motion. 2

Section 40-30-217(a), Tenn. Code Ann., provides that a petitioner may file a motion to reopen a petition for post-conviction rel ief only in limited circumstances: if the clai m in the motion is based on a final r uling of an appellate court that establishes a cons titutional right not r

ecognized as exist ing at the time of the trial and retrospecti ve application of that rig ht is required; if the cl aim is based on new scientific evide nce that establishes that the pet itioner is actually innocent of the offense, o r if the c

laim is based upon reli ef from a sentence enhanced because

of a previous convicti on that has subsequently bee n held to be invalid. Tenn. C ode Ann. § 40-30-217(a). The statute further requires that the f acts underlying the claim, if true, est ablish by c lear and c onvincing evidence that the petition er is entit led to ha ve the conviction set aside or the sentence reduced. Tenn. Co de Ann. § 40-30- 217(a)(4 ). If the trial cour t denies t he motio n to reope n, the pe titioner has ten da ys to file an application for permis sion to appeal to this court.This court is not to gr ant the application unless it ap pears that the trial court abused its discretion in denying the motion. Tenn. Code Ann. § 40-30-217( c).
The petitioner claims he is e ntitled to the benefit of a new rul e of constitutional law. He first cites Pruett v. Norris , 959 F.Supp. 1066 (E.D.Ark. 1 997). The Pruett case is a very c omplex case with sev

eral issues. The petitioner has failed to state which rul e of law in the Pruettopinion is applicable to hi s case. Even if he had, however, the cl aim would fail. The statute r equires that the motion be3 based "upon a final ruling of an appellate court .... Such motion must be filed within one (1) year of the ruling ...." Tenn. Code Ann. § 40-30-217(a) (1) (emphasis added). First, the Pruettopinion is not a ruling of an appellate court. Second, the Pruett opinion was released in 1997. The motion to reopen was fil ed in 1999. Thus, any claim based on Pruettwould be barred by th e statute of limitations. Id . He also contends he is entitled to the appointment of an expert under the hol ding in Ake v. Oklahoma , 470 U.S. 68 (1985). Any claim to relief based on the rul ing in Ake is likewise barred by the statute of limitations. Tenn. Code Ann. § 40-30-21 7(a)(1).

The petitioner next claims that the trial court shoul d have appointed an expert who would have testified that intoxi cation would have dimi nished his ability to form the mens rea necessary for a first degree murder conv iction. He contends these allegations quali

fy as new scientific ev

idence which would s how he is innocent of first degree murder. See Tenn. Code Ann. § 40-30-217(a)(2). To succeed on this claim the petitioner must have "new scientific evidence that has

already been secured and which will establish his or her act ual innocence." State v. Ray , 984 S.W.2d 233, 238 (Tenn. Crim. App. 1998) (emphasis add ed). The motion to reopen is not an avenue for obtaining discovery. Id . Because that is exactl y what the petitioner proposes in his motion to reopen, the trial c ourt did not abuse its discretion by denyi ng the motion.

Accordingly, the peti

tioner's application for per mission to appeal the trial court's denial of hi s motion to reopen is denied. C osts shall be taxed to the state.

__________________________________ Gary R. Wad e, Presiding Judge4 CONCUR:

__________________________________ James Curwood W itt, Jr., Judge

_____________________________________ Norma McGee Ogle, Judg e