# FILED
July 1, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON

ROBERT LEE RAY FORD, ) ) Petitioner, ) C. C. A . NO. 02C01-9 702-CR-00079 ) vs. ) SHELBY COUNTY ) STA TE OF TENN ESSEE, ) No. P-04756 ) Respondent. )

O R D E R

This matter is before th e Court upon the state’s mot ion, pursuant to Rule 20, Rules of the Court of Criminal Appeals, to aff irm the judgment of the trial court through an or

der rather th an a formal opinion. The record in this case was filed on February 26, 1997, and the pe titioner filed his brief on Ap ril 11, 1997. In 1986, this Court affirmed the peti tioner’s co nvictions for aggrav

ated rape and statu s as a habitual criminal. State v. Rayford , No. 38 (Tenn. C rim. App., at J ackson, Apri l 2, 1986). The Supreme Court deni ed the petitioner’s applicati on for permissi on to appeal. In J une of 198 7, th e pet itio ner f iled a pet itio n fo r pos t-co nvict ion re lief , clai ming , in p art, inef fec tive assistance of coun sel. The tria l court finall y dismiss ed the petition i n May 1991, b ut the petitioner di d not appeal that di smissal.

During th e pendency of his petition in t he trial cour t, the petitione r filed a petiti on for w rit o f habeas corpus in thefederal court , in w hich h e rais ed the s ame issues he cl aimed in his state post-conv iction petit ion. After several hearing s in the district court, the peti tioner wa s ultimately denied relie f in December, 1995. The federal appeals court d enied a certi ficate of probable caus e in April, 1996, and the Uni ted States Supreme Cou rt denied the pet itioner’s writ of cer tiorari i n October, 1996.
On December 11, 19 96, the petitioner filed his second petition for postconvicti on relief in the trial cour t. The trial court dismis sed the petition on January 13,2

1997, stating that the petitio n was barr ed by the stat ute of limitation and that the iss ues raised h ad bee n previou sly determ ined. On appea l, the pe titione r, citing Sand s v. State , 903 S.W.2d 297 (Tenn. 1995), argu es that the str ict applicat ion of the statute of limitation i n this case w ould deny hi m due process of law . Specificall y, the petit ioner contends that he could not have filed his post-conviction petition an y earlier because the United States Suprem e Court did not rule upon his petition f or writ of certiorari until October 1996. According to the petitioner, state law prevented hi m from filing tw o suits simultaneously in two different co urts.

T.C.A. § 40-30-206(c), upon which the petitioner relies to support his claim on appeal, provides that the trial judge may summarily dismiss a petition if it appears the petit ioner already has pending a petition in “ either the tr ial court, court of criminal appea ls, or supreme court.” C ontrary t o the petitioner’s claim, t he postconvicti on statute does not address pleadi ngs filed in the federal courts . Indeed, the statute specifically onl y imposes l imits on simul taneous state cour t filings. T.C.A. § 40- 30-202(c) “ contemplates the fil ing of only one (1) petit ion for post-con viction relief [and] [i]n no e vent may m ore tha n one (1) petitio n for po st-convict ion relie f be f iled att acking a single j udgment.” Mo reover, T.C .A. § 40-30-202( a) (emphasis added) mandates that a person in custody under a sentence of a court of this state must petition for post-conv iction rel ief . . . wi thin one (1) year of the date of the final action of the hig hest state appellate cour

t to whic h an appeal has been taken or, if no appea l is taken, within one(1) year of the date on whi ch the judgment became f inal. This time limi t, however, is not to lled by federal proceeding s. See§ T.C.A. 40-30- 202(b)(1)- (3). In fact, n othing in th e language of this statute prevents the pet itioner from filing a peti tion in the st ate court w hen he or she has a federal habeas cor pus petition pending

. See T.C.A. §§ 40-30- 201-222.

The petitioner already filed one petition for post-con viction relief, which was dismissed in 1991. The petition er never appealed that dismissal. In ad dition, more than one year has passed since that dismiss al by the tr ial court and , also, since the final action of the hi ghest state ap pellate court regardingthe petitioner’s convi ction.3

Accordingl y, the pres ent petition was filed outside the statute of limi tation, and the tr ial court was

therefore wi thout jurisdi ction to consi der the petiti on. See T.C.A. § 40-30- 202.
Having reviewed the state’s motion in light of the petitioner’s response and the entire record on app eal, we find that the motion is well-taken and should therefore be gr

anted. Accordi ngly, for the reasons st ated above, it is hereby ORDERED th at the judgment of the trial cour t dismissin g the petiti on without t he necessity

of an evidentia ry heari ng is affirmed.
Enter, this t he ___ day of June, 1997.

______________________________ DAVID G. HA

YES, JUDG E

______________________________ JOE B. JONES, PRESIDING JUDGE

______________________________ JOE G. RILEY , JUDGE