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

ay 23, 2001 TRACY LAMAR BELLE, SR. v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Hamilton County

No. 230301 Douglas A. Meyer, Judge

No. E2000- 02787-CCA- R3-PC July 23, 2001
The petitioner, Tracy Lamar Belle, Sr., appeals the

denial of post-conviction relief contending that his right to due process has been violated by the application of the statute of limitations. Because the notice of appeal was not timely filed and because "the interest of justice" does not require the waiver of a timely notice, this appeal is dismissed. SeeTenn. R. App. P. 4(a). Tenn. R. App. P. 3; A

ppeal Dismissed.
G ARY R. W ADE , P.J., delivered the opinion of the cou rt, in which T HOMAS T. W OODALL and R OBERT W. W EDEMEYER , JJ., joined. Tracy Lamar Belle, Sr., pr o se. Paul G. Summers, Att orn ey General & Repo rter; John H. Bleds

oe, Assistant Attor

ney Gener

al; Randy Nichols, District Attorney Gen eral; Rober t L. Jolley, Jr., and John Gill, Assistant District Attorneys General, for the appellee, State of Tennessee

. OPINION
In 1994, the petitioner was convicted of second degree murder and attempted second degree murder. The trial court imposed an effective sentence of 25 years. On direct appeal, this court a ffirme d. On September 16, 1996, the supreme court denied the petitioner’s application for permission to appeal. State v. Tracy Lamar Belle

, No. 03C01-9503-CR-0094 (Tenn. Crim. App., at Knoxville, March 6, 199 6), perm. to app. denied (Tenn. 1996). On November 8, 1999, the petitioner filed this petition for post-conviction relief, alleging the following as grounds for relief: (1) use of a coerced

confession; (2) violation of his privilege against self-incrimination; (3) failure of the prosecution to

disclose evidenc

e favorable to hi

m; (4) unconstitu

t ional selection and impanelment of the gran d or pet it j ury; (5) ineffective assistance of counsel; (6) newly discover ed evidence; (7) use of illegalevidence; (8) jury misconduct; and (9) insufficiency of the evidence. The petitioner further alleged that the petition was timely filed because he didnot learn of the su

preme court's denial of his application for permission to appeal until December of 1998.-2-

The trial court dismissed the petition , conclu ding that it was barred by the statute of limitations. See Tenn. Code Ann. § 40-30-202(a). The petitioner did not f

ile a notice of ap

peal until more than 11 months later. The rule requires a notice of appeal to be submitted for filing within 30 days of the order dismissing the petition. See Tenn. R. App. P. 4(a). The timely filing of a notice of appeal may be waived by this court in a post-conviction cas e only "in the i nterest of justice." Tenn. R. App. P. 4(a); State v. Scales , 767 S.W.2d 157 (Tenn. 1989). The "interest of justice" does not require waiver in this case.
The original Post-Conviction ProcedureAct of 1967 did not in clude a statute of

limitations. On July 1, 1986, the General Assembly adopted a three- year statute of limitations. See Tenn. Code Ann. § 40- 30-102 (repealed 1995). In 1995, our legislature passed the new Post-Conviction Procedure Act, which is

applicable

to all petitions file

d after May

10, 1995. It sho

rtened the statute of limitations to one year:

(a) Except as provided

in subsections (b) and (c), a person in custody under a sentence of a

court of this state

must petition for post-convict

ion relief under

this part within one (1) y

ear of the date o

f the final a

ction of the highest sta

te appellate court to which an appeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment became final, or consideration of such petition shall be barred. The statute of limitations shall not be tolled fo r any reason, including any tolling or saving provision oth erwise available at law or equity. . . . Except as specifically

pro vided in

subsections (b) and (c), the right to file a petition for post-conviction relief or a motion to reopen under this chapter shall be extinguished upon the expiration of the limitations period. Tenn. Code Ann. § 40-30-202(a).
Under Tenn. Code Ann. § 40-30-202( b), c ourts may not consider a petition for post-conviction relief if it is filed outside the one-ye ar statute of limita

tions unless "(1)

[t]he claim in the petition is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized a

t the time of trial, i

f retrospectiveapplication of that right is required. . . .; (2) [t]he claim in the petition is based upon new s

cientific evidence establishing that such petitioner is actually innocent of the offense or offenses for which the petitioner was convicted; or (3) [t]he claim asserted in the petition seek

s reli ef from a sent ence that was enhanced because of a previous conviction and such conviction in the case in which the claim is asserted was not a guilty

plea with an agreed sentence, and the previous conviction has subsequently been held to be invalid . . . ."
In concluding that the petitioner’s petition for relief was untimely filed, the trial court ruled as follows:
Even assuming that

the petitioner’s a

ccount of the fac

ts is true . . . those facts do not toll the statute of limitations. Under Tenn. Code Ann. 40-30-202, the date of final action or judgment finality, not the date of the petitioner’s discovery or notice thereof, is the crucial time for measuring the limitation period.-3-

We agree. In Burford v. State , 845 S.W.2d 204, 208 (Tenn. 1992), our suprem e court held that in certain situations application of the statute of limitations in a post-c onviction proceeding might violate constitu

tional due process. In determining whether there has been such a violation, the essential question

is whet her the time period allowed by law provides the petitioner a fair and reasonable

opportunity to fi le suit. Id. In Burford , the petitioner could not have filed within the three-year limitation absent a determination on his prior post-conviction petition. Our supreme court ruled that Burford

was "caught in

a procedural tr

ap and unable to in

itiate litigation . . . despite the approach of the three-year limitat ion." Id. There was no such trap here.
In Sands v. State , 903 S.W.2d 297 (Tenn. 1995), our supreme cour t further define

d how to apply the Burford

test. Courts are r

equired to (1) determine when the limitations period would normally have beg un to run ; (2) determine whether the grounds for relief actually ar ose after the lim itations period would normally have commen ced ; and (3) if the grounds are "later-arising," determine if, under

the facts of the case, a

strict application of the limitations period would effectively

deny the petitioner a rea

sonable opportuni

ty to presen

t the claim. In making this final determination, courts should care fully weigh the petition er's liberty interest in "col laterally atta cking const itutiona l violati ons occurri ng during th e conviction process," . . . a gainst the State'

s interest i

n preventing the litigation of "stale and fraudulent claims."
Sands , 903 S.W. 2d at 301 (ci tations om itted) (qu oting Burford , 845 S.W.2d at 207, 208).
In this case, the limitations period would have begun to run on September 17, 1996, the day after the suprem e court deni ed the peti tioner's application for p ermission to

appeal, and expired one year later. See Tenn. Code Ann. § 40-30-202. More than three y ears passed betw

een the supreme court's denial of permission to appeal and the petitioner's fi ling of his petition for post-conviction relief. None of the petitioner’s grounds for re l ief actually arose after the limitations period commenced. All thatdue process requires in such s

ituations is that the

law be sufficien

tly clear to give a person a reasonably understandable warning of its requirements. Burford , 845 S.W.2d at 208.
The petitioner concedes that he failed to

file a timely petition for post-conviction relief, but argues that the applicati

on of the statute of

limitati ons would abridge his right to due process. Spe cif ica lly, he main

tains that beca use he did not lear n of the denial of h

is appeal to the sup

reme courtuntil December of 1998, more than two years after the c onclusion of the case, the statut e o f limitations should be tolled. The state contends that because the petition does not contain any of

the statutory exceptions to the limitations period, the petition was properly dismissed. SeeTenn. Code Ann. § 40-30-202(b).
In State v. Jimmy Sills , No. 03C01-9410-CR-00370 (Tenn. Crim. App., at Knoxville, May 10 , 1995), decided before the legislature passed the 1995 amendments to the Post-Convict io n Procedure Act, the petitioner contended that the barring of his petition f or post-c onviction relief would violate his

constitutional due

process guara

ntees. While conce

ding that he had f

ailed to file-4-

a timely petition for post-conviction relief, he argued that the statute of limitations should be tolled since he had no notificationof the supreme court’s denial of permission to appeal. State v. Jimmy Sills , sl ip op. at 2. This court determined that the due process rights of the petitioner were not violated:
All that due process requires is that a law be sufficiently clear to g ive a person a reasonably understandable warning of its requirements. . . . [T]he time limitation contained in T.C.A. § 40-30-102 meets due process standards. . . .
Id. (citation omitted) ( quoting Raymond Dean Willis v. State, No. 01C01-9211-CR-00359 (Tenn. Crim. App., at Nashville, Oct. 21, 1993), perm. to app. denied (Tenn. 1994)).
Because the statute of limitations had expired and there was no deprivation of due process, the petitioner is not entitled to relief. Accordingly, the appeal is dismissed.

___________________________________ GARY R. WADE, PRESIDING JUDGE