IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs October 17, 2000

JOHN HAWS BURRELL v. STATE OF TENNESSEE

 Appeal from the Criminal Court for Anderson County

No. 99CR0119 James B. Scott, Jr., Judge

No. E1999-02762-CCA-R3-PC

January 8, 2001

The Defendant, John Haws Burrell, appeals as of right from the dismissal of his petition for postconviction relief. The trial court dismissed his petition without an evidentiary hearing as barred by

the statute of limitations. The Defendant argues on appeal that the statute of limitations should not

have expired until one year after certiorari had been denied by the United States Supreme Court. We

affirm the judgment of the trial court dismissing the Defendant’s post-conviction petition as timebarred.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed.

DAVID H.WELLES,J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS,J., and

WILLIAM B. ACREE, JR., SP.J., joined.

Andrew N. Hall, Wartburg, Tennessee, for the appellant, John Haws Burrell.

Paul G. Summers, Attorney General and Reporter; Mark A. Fulks, Assistant Attorney General;

James N. Ramsey, District Attorney General; and Jan Hicks, Assistant District Attorney General,

for the appellee, State of Tennessee.

OPINION

The Defendant was convicted of twelve counts of sexual battery, three counts of rape, and

two counts of coercion of a witness. For these offenses, he received an effective sentence of twentyfour years. We affirmed his convictions on direct appeal, and the Tennessee Supreme Court denied

review. See State v. John Haws Burrell, No. 03C01-9404-CR-00157, 1997 WL 53455 (Tenn. Crim.

App., Knoxville, Feb. 11, 1997), perm. app. denied (Tenn. Oct. 6, 1997). The Defendant

subsequently filed a petition for a writ of certiorari, seeking review of his convictions by the United

States Supreme Court. The United States Supreme Court denied certiorari on April 6, 1998. See

Burrell v. Tennessee, 523 U.S. 1062 (1998). On March 31, 1999, the Defendant filed a petition for

post-conviction relief, which was summarily dismissed as barred by the statute of limitations.
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The statute establishe s three excep tions to the on e-yearstatute of limitations, none of which are applicable here.

Those exceptions allow for post-conviction consideration if a petition is filed within one year of a ruling establishing a

new constitutio nal right given re troactive ap plication, if a petition is based on new scientific evidence establishing the

innocence of the defendant, and if a petition is filed within one year of a judgment invalidating a conviction that was used

to enhance a sentence. See Tenn. Code Ann . § 40-30 -202(b). 

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Relief under our Post-Conviction Procedure Act will be granted when a defendant’s

conviction or sentence is void or voidable because of the abridgment of any right guaranteed by

either the Tennessee Constitution or the United States Constitution. Tenn. Code Ann. § 40-30-203.

However, in order to seek such relief, a defendant

must petition for post-conviction relief under this part within one (1) year of the date

of the final action of the highest state appellate court to which an appeal is taken . .

. .The statute of limitations shall not be tolled for any reason, including any tolling

or saving provision otherwise available at law or equity. Time is of the essence of

the right to file a petition for post-conviction relief . . . , and the one-year limitations

period is an element of the right to file such an action and is a condition upon its

exercise. 

Id. § 40-30-202(a) (emphasis added).1

Pursuant to the rules of statutory construction, we must “examine the language of a statute

and, if unambiguous, apply its ordinary and plain meaning.” Seals v. State, 23 S.W.3d 272, 276

(Tenn. 2000). The statute in question states clearly and unambiguously that the one-year limitations

period begins to run on the date of the final action of the highest state appellate court to which an

appeal is taken. See Tenn. Code Ann. § 40-30-202(a). The United States Supreme Court is

obviously not a state appellate court; therefore, under the statute, the Defendant should have filed

his petition for post-conviction relief by October 6, 1998. Because his petition was not filed until

March of 1999, it was barred by the statute of limitations. 

Notwithstanding, the Defendant asserts that due process requires the tolling of the statute of

limitations while his petition for certiorari was pending before the United States Supreme Court.

Although post-conviction procedures are not constitutionally required, “once a state chooses to

provide post-conviction remedies, it must do so in a manner that meets Constitutional standards.”

Davis v. State, 912 S.W.2d 689, 695 (Tenn. 1995). While recognizing that our statute explicitly

states that the “statute of limitations shall not be tolled for any reason,” our supreme court, applying

due process standards, held in Seals v. State that the “application of the statute must not deny a

petitioner a reasonable opportunity to raise a claim in a meaningful time and manner.” Seals, 23

S.W.3d at 276-79. In determining whether the application of the statute of limitations violates due

process, “[t]he test is ‘whether the time period provides an applicant a reasonable opportunity to have

the claimed issue heard and determined.’” Id. at 278 (quoting Burford v. State, 845 S.W.2d 204, 208

(Tenn. 1992)). In Seals, the supreme court determined that a person who was mentally incompetent

and therefore legally incapable of asserting his or her constitutional rights would be denied the

opportunity to assert his or her rights in a post-conviction petition unless the limitations period was
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suspended during the period of incompetence. Id. The court thus held that “due process requires

tolling of the statute of limitations where a defendant is denied the reasonable opportunity to assert

a claim in a meaningful time and manner due to mental incompetence.” Id. at 279. 

In this case, there is no assertion that the Defendant was mentally incompetent. In fact, the

Defendant makes no argument that he was denied the reasonable opportunity to assert his claims in

a meaningful time and manner. He argues only that his petition for certiorari to the United States

Supreme Court should have tolled the statute of limitations. We disagree. There is no reason why

a defendant cannot seek post-conviction relief pursuant to our Post-Conviction Procedure Act while

his or her petition for certiorari to the United States Supreme Court is pending. Accordingly, the

filing of a petition for certiorari to the United States Supreme Court does not deny a defendant the

reasonable opportunity to assert his or her claims in a meaningful time and manner. Thus, we hold

that due process does not require tolling the statute of limitations while a petition for certiorari is

pending before the United States Supreme Court. 

Pursuant to statute, the Defendant had one year from the time the Tennessee Supreme Court

denied permission to appeal to file a petition for post conviction relief. See Tenn. Code Ann. § 40-

30-202(a). Because he did not file his petition within this time period, his petition for postconviction relief was barred by the statute of limitations. Therefore, the judgment of the trial court

dismissing the Defendant’s petition is affirmed.

___________________________________ 

DAVID H. WELLES, JUDGE