FILED

March 24, 2008

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

OCTOBER 1996 SESSION

WALLACE BUTLER, )

) C.C.A. NO. 02C01-9510-CC-00297

Appellant, )

) FAYETTE COUNTY

VS. )

) HON. JON KERRY BLACKWOOD,

RICKY BELL, WARDEN, ) JUDGE

)

Appellee. ) (Habeas Corpus/Post-Conviction)

FOR THE APPELLANT: FOR THE APPELLEE:

GARY ANTRICAN CHARLES W. BURSON

Public Defender Attorney General & Reporter

SHANA McCOY-JOHNSON MARY ANNE QUEEN

Asst. Public Defender Legal Assistant

118 East Market St. -andSomerville, TN 38068-0700 ELLEN H. POLLACK

Asst. Attorney General

450 James Robertson Pkwy.

Nashville, TN 37243-0493

ELIZABETH T. RICE

District Attorney General

302 Market St.

Somerville, TN 38068-1600

OPINION FILED:____________________

AFFIRMED

JOHN H. PEAY,

Judge
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O P I N I O N

The petitioner was convicted by a jury of five counts of armed robbery, four

of which were affirmed and one of which was reversed and dismissed by this Court in an

opinion filed on March 6, 1985. Application for permission to appeal to the Supreme

Court was denied on June 10, 1985. The petitioner subsequently filed a petition for writ

of habeas corpus on May 24, 1995, which the court below treated as one for postconviction relief and dismissed without a hearing on the basis that it was time-barred. He

contends that this summary dismissal was improper. After reviewing the record, we

affirm the lower court’s judgment.

The petition in this case was filed in Fayette County, Tennessee, the county

in which the petitioner was originally convicted. His petition shows that he is presently

incarcerated in Davidson County, Tennessee. The only allegation contained in the

petition is that the trial court erred in allowing certain witnesses to testify on behalf of the

State at trial. A petition for habeas corpus must be filed in the county which is the most

convenient in point of distance to the applicant unless a sufficient reason be given in the

petition for not applying to such court. T.C.A. § 29-21-105 (1980). The petition was not

filed in Davidson County nor was there any allegation as to why it was not filed in said

county. Also, relief in habeas corpus proceedings is available only if the judgment

attacked is void upon its face or the record, or if the defendant’s sentence of

imprisonment has expired. Archer v. State, 851 S.W.2d 157, 164 (Tenn. 1993). In this

case, the petitioner has failed to allege any matter that would make his judgment void.

We conclude that the trial judge properly considered the petition as one for postconviction relief rather than habeas corpus. T.C.A. § 40-30-205(c) (1996 Supp).
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Finding that the trial judge properly considered the petitioner’s petition as

one for post-conviction relief, we now look to determine if the trial judge properly applied

the statute of limitations. The petitioner’s conviction became final on June 10, 1985, the

date permission to appeal was denied by our Supreme Court. Shortly thereafter, our

legislature enacted a three year statute of limitations that was applicable to all petitions

for post-conviction relief filed on or after July 1, 1986. T.C.A. § 40-30-102 (1986 Supp.).

The petitioner’s right to file for post-conviction relief would therefore have been barred on

July 1, 1989. See Abston v. State, 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988). The

instant petition was filed on May 24, 1995.

We acknowledge that this petition falls within the purview of the new PostConviction Procedure Act, T.C.A. § 40-30-201 et seq. (1996 Supp), which applies to all

post-conviction petitions filed after May 10, 1995. See 1995 Tenn. Pub. Act 207, § 3.

This new Act provides, in pertinent part, that "[n]otwithstanding any other provision of this

part to the contrary, any person having ground for relief recognized under this part shall

have at least one (1) year from May 10, 1995, to file a petition or a motion to reopen a

petition under this part." Compiler's Notes to T.C.A. § 40-30-201 (1996 Supp) referring

to Acts 1995, ch. 207, § 3. And we realize that another panel of this Court has held, with

one member dissenting, that the new Post-Conviction Procedure Act provides "a oneyear window" in which every defendant may file a petition. Arnold Carter v. State, C.C.A.

No. 03C01-9509-CC-00270, Monroe County (Tenn. Crim. App. filed July 11, 1996, at

Knoxville). That case holds that the one-year window is available even if the petition

would have been barred by the three year statute provided under the previous act.

However, we adopt the view set forth in Judge Welles' dissent, concluding

that 
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this language is only applicable to those who were not barred

by the statute of limitations at the time this statute went into

effect. Thus, if less than three years had already passed at

the bill's enactment, a defendant assuming that he had three

years in which to file a petition for post-conviction relief would

not be foreclosed from bringing a suit; instead, he would still

have the one year from the effective date of the statute.

Like Judge Welles, we do not believe that the new Act provides to those defendants

previously barred a new one year period in which to petition for post-conviction relief. At

most, it provides those barred an opportunity to reopen a prior petition within one year

of the new Act's effective date. T.C.A. § 40-30-217 (1996 Supp). The allegations under

review do not meet the criteria of this section.

The instant petition is barred by the three year statute of limitations

applicable under the prior Act. Therefore, the action of the trial court in dismissing the

petition was appropriate and we accordingly affirm the judgment below.

______________________________

JOHN H. PEAY, Judge

CONCUR:

______________________________

PAUL G. SUMMERS, Judge

______________________________

DAVID G. HAYES, Judge