# FILED
October 5, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF T ENNESSEE AT NA SHVILLE ARTHUR RAY LEPLEY, ) ) C.C.A. NO. 01C01-9903-CR-0 0084 Appellant, ) (Nos. 87-W-127 & 87-W-128 Below ) ) DAVIDSON COUNTY VS. ) ) The Hon. Walter C. Kurtz STATE OF TENNESSEE, ) ) (Dismissal of P ost-Conv iction Petiti on) Appellee. ) ) AFFIRMED PURSUANT TO RULE 20

O R D E R

This matter is before the Court upon the stat e’ s motio n requesting t hat the judgment in the above-s tyle d cause b e affirmed pursuant to Rul e 20, Tennessee Court o f Cri minal Appeals Rules. Having review ed the state’s motion, the appell ant’s brief, an d th e record on appeal , we find tha t the motion is w

ell taken.

It appears tha t in 1987, the petitioner pled guilty to three counts of armed robbery and two counts of agg ravated assaul t, and the tri al court sentenced hi m to an effec tive sentence of life plus

ten years. The petitioner fil ed his first post-convict ion petiti on on July 21, 1988, claiming, in part, that h is right to due process was violated based on a failed bri bery attempt by the petitioner and his father. On direct appeal, this Court affirmed the trial court , Lepley v. State , No. 89-249-II I (Tenn. Crim. App., at Nashville, April 2 7, 1990), and th e Sup re me Court denied permission to appeal on July 30, 1990. Subsequently, the appella nt filed a second po st-convic tion petit ion and then a motion to reopen post- conviction p etition, both of which were denied.

Finally, the petiti oner filed th e petition u nder review on November 18, 1998. He submitted that he had new ly discover ed evidence i n support of his claim reg arding a failed briberyattempt. Spec ifically, affidavits fr om his sister and brother-in-la w stating that th ey could confirm that thepetitioner ’s father tal ked and met with the t rial judge r egarding the at

tempted bribe. The trial co urt dismissed the pet ition, fi nding that it wa s barred by res judicata and th e statute of limitations

and that the pet itioner had failed to show

good cause to reopen the matter. We affirm

.

### -2- Pursuant to T.C.A. § 40-30-202(a), a petiti oner must petition for post-convict ion relief within on e year of the date of the final action of the hi ghest state appellate court to whi ch
an appeal was taken. Under T.C.A. § 40-30-202(b), a court does not have juri sdiction to consider a petit ion for p ost-convictionrelief if i t was filed outsi de the one-year statute of limitations

unless (1) th e claim in the pet ition is based upon a fi nal rulin g of an appellate court establishi ng a constitutional right t h at was not rec ognized as ex isting at the tim e of trial, if retrospective applicati on of that righ t is requir ed; (2) the cl aim in the petit ion is based upon new scienti fi c eviden ce establishi ng that such petitioner is ac tually i nnocent of the offense or offenses for which the

petitioner

was convicted; or

(3) the clai m in the petition se eks relief from
a sentence that w

as enhanced because of a previous c onviction a nd such convicti on in the
case in which t he claim is asserted was not a gui lty plea with an agr eed senten ce, and the previousconviction has subsequently been held to be i nvalid. Moreover, under T.C.A. § 40-30- 202(c), where a

post-convict ion petiti on has been filed and resolved on the merits by a court of compete nt jurisdiction, any second or subs equent petition is to be dism issed summ arily.

In the present case, the petitioner’s fil ed his petition for post-c onviction r elief outside the statute of l imitations set for th in T.C.A. § 40-30-202(a), he does not submit that any of his claims fall

within on e of the except ions set forth i n T.C.A. § 40-30-202( b), and the petitioner

filed a previous post-conviction petition which was reso lved on the merits by a court of competent jurisdiction. T.C.A. § 40-30-202(c).

The statute clearl

y states that

the one-year

limitations peri od shall not be t olled for any reason, includi ng any tolli ng or saving provi sion otherwise available at law or equity. T.C. A. § 40-30-202(a). Moreover, appl ication of th e statute of li mitat ions in this instance does not violate due proces s princ iples. In Burford v. State , 845 S.W.2d 204, 208 (Tenn. 1992) , our Sup re me Court hel d that i n certai n situat ions appl icatio n of t he s tatute of li mitations in a post-convicti on proceeding might violate consti tutional due

process. In det

ermining w he ther there has been such a violati on, the essenti al question i s whether the t ime period allo wed by law provides the

petitioner

a fair and reason able opportunity to file suit. Id . In Burford , the Sup re me Court held that the petiti onerwas "caught in a procedural trap and unable t o initiate litig ation ... despite the approach of the three-year li mitation." Id . No such trap exists here.

IT IS, THEREFORE, ORDERED that the state’s motion to a ffirm the judgment of the trial court

under Rule 20, Tenn essee Court of Criminal Appeals Rules, is granted, a nd

### -3-

the judgment of the trial court is affirmed. It appearing that the peti tioner is i ndigent, costs of these proceeding s are taxed to the state.

_______________________ ______ DAVID H. WELLES, JU DGE CONCUR:

_______________________ ______ JOHN H. PEAY, J UDGE

_______________________ ______ THOMAS T. WOODALL, JUD GE