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

Briefs M arch 19, 2002 AARON BURT ON v. STATE OF TE NNESSEE Appeal from the Criminal Court for Hamilton County No. 234418 Douglas A. Meyer, Judge

No. E2001-02670-CCA-R3-PC April 4, 2002
The Defendant, Aaron Burton, pled guilty to second degree murde r in 1997. He subsequently filed for post-conviction relief, alleging ineffective as sistance of couns el. After a hearing, the Defenda nt’s petition was denied, and this Court affirmed the trial court’s judgment. See Aaron Bur ton v. State , No. E1999-01616-CCA-R3-CD (Tenn. Crim. App., Kno xville, March 31, 2000). The Defendant subsequen tly filed the

instant pr

oceedin g, styled “ Petition fo r Post-Conv

iction Relief and/

or to Reopen.” Finding that the Defendant failed to establish any grounds fo r reope nin g his previous petition, t he trial c ourt deni ed relie f. The De

fendant now appe als. We affirm the judgment of the trial cou rt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
D AVID H. W ELLES , J., delive red the o pinion of t

he court , in which G ARY R. W ADE , P.J., and R OBERT W. W EDEMEYER , J., joined. Aaron Burton, Pikeville, Tennessee, Pro Se. Paul G. Summers, Attorney General and Reporter; Renee W . Turner, Assistant Attorney Genera l; and Bill Cox, District Attorney General, for the appellee, State of Tenne ssee. OPINION
Tennessee’s Post-Conviction Procedure Act provides for the filing of only one petition for post-conviction relief. See Tenn. Code Ann. § 40-30-202(c). Where a prior petition has been filed and resolved on the merits, “any second or subsequent

petition shall be summarily dismissed.” Id. However, “[a] petitioner may move to reopen a post-conviction proceeding that has been concluded, u nder the limited circumstances set out in § 40-30-217.” Id. These circumstances include “ne w scientif ic evidence establishing that [the] petitioner is actually innocent of the offense.” Id. § 40-30- 217(a)(2).-2-

The Defend ant’s moti on to reopen alleges that he has “new evidence to prove his innocenc e.” This “new evidence” consists of “sworn statements from both alleged co-defendants . . . stating that they lied to police and that Petitioner had nothing to do with this case and was not involved.” The trial court found that this alleged basis for reopening the Defendant’s prior petition did not meet the statutory criteria for

new evidence, and denied the Defe ndant’s motion. The Def

endant no w appea

ls, arguing that the statute “prec ludes all p ersons from seeking relief from their inc arceration based upon newly discovered evidence that is not scientific,” and therefore offe nds constitutional principles of due process and equal protection. We respectfully disagree.
We first note that this Court “must presume that an act of t he Genera l Assembly

is cons t itutional and must uphold the constitutionality of a statute wheneve r possible.” State v. Robinson , 29 S.W.3d 476 , 479-80 ( Tenn. 200 0). We fur ther note that “ [e]qual p rotection constitutional provision s guara ntee tha t ‘allpersons s imilarly

circumstanced shall be treated alike.’” Id. at 480. The Defendant contends that the statute at issue violates equal pr otect ion princ ip les b ecause it differentiates between those defendants who c an challenge their convictions based on newly discovered scientific evidence and those defendants who can challenge their convictions on newly discover

ed non-scientific evidence.
The Defendant’s argument must fail. The statute providing for the reopening of prior pos tconviction proceedings does not distinguish between convicte d def en dants, persons who are “similar ly circumstanced.” That is, it does not classify convicted defendants differently from one another on any prohibited basis: the evil at which our constitutional provisions for equal protection are aimed. An

y a nd alldefendants -- regar

dless of their loc ations, pe

rsonal a ttributes , voting r

ecords, etc. -- who ob tain newl

y discovered scientific evidence establishing the ir innocence, may

reopen a prior petition for post-conviction relief. There simply is no constitutional basis requiring that every convicteddefenda

nt who has filed a p etition fo r post-c onviction

relief, be allowe d to later r eopen s ame upon a simple allegation of “newly discovered evidence.” I ndeed, the “authority

and limitations [of the Post-Conviction Act] are derived solely from the leg isla ture and are not constitutionally mandated.” Oliphant v . State , 806 S.W.2d 215, 217 (Tenn. Crim. App. 1991).
It is the Def

endant’ s burde n to demonstrate that the challenged statute contains an unreaso nable

legislative classification. See State v. Whitehead , 43 S.W.3d 921, 926 (Tenn. Crim. App. 2000). The Defendant has not ca

rried thi s burden. Nor has he demonst rated th at the sta

tute viol ates due pr oces s. Ac cord ingl y, we fi nd the

Defe ndan t’s c onte ntion s to be

witho ut mer

it. We further find that the trial court did not abuse its discret ion in deny ing the D efenda nt’s motion

to reopen his prior post-conviction petition. See Tenn. Code Ann. § 40-30-217(c). The judgment of the trial court is affirmed.

___________________________________ DAVID H. WELLES, JUDGE