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

ctober 17, 2000
JOHN HAWS BURRELL v. STATE OF TEN NESSEE
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 H aws Burrell, ap peals as of righ

t from the dismissal o

f his petition for po

stconviction 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 limitationsshould not have expired until one year after certiorari had been denied by the United States Sup

reme Cour

t. We affirm the judgment of the trial court dismissingthe Defendant’s post-convictionpetition as timebarred. Tenn. R. App. P. 3 Appe al as of Right; Judgme

nt of the Criminal C

ourt Affirmed.

D AVID H. W ELLES , J., delivered the opinion of the court, in which J OHN E VERETT W ILLI AMS , J., and W ILLI AM B. A CREE , J R ., S P .J., joined.
Andrew N. Hall, Wa

rtburg, Tennes see, for the app ellant, John Haws B urrell.

Paul G. Summers, Attorney Gene ral and Reporter; Ma

rk A. Fulks, Assista

nt Attorney G

eneral; James N. Ramsey, D

istrict Attorney

General; and Jan H

icks, Assistant Dist

rict Attorney

General, for the appellee, State of Tennessee.
OPINION

The Defendant was c

onvicted of twelv

e counts of sexual battery, three counts of rape, and two counts of coercion of a witness. For these offenses, he rece ive d an effe cti ve s ent ence of t wen tyfour 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 5 3455 (Tenn. Crim. App., Knoxville, Feb. 11, 1997), perm. app. denied (Tenn. Oct . 6, 1997 ). The Defendant subsequently

filed a petition for a wr

it of certiorari, seeking review of his convictions by the United States Supreme Court. The United States Supre me 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 r

elief, which was

summarily dis

missed as barred

by the statut

e of limitations.1 The statute establishe s three excep tions to the on e-ye ar stat ute of limi

tations, none of which are applicable here. Those exceptions all

ow forpost-conviction consideration if a petition is fi led within one year of a ruli ng establishing a new constitutio nal right given re troactive ap plication, if a petition is based on new scientif ic evidence establishing the innocence of the def

endant, and if a pe

titi on is fi led wit hin one y ear of a j udgment i

nvalidat ing a conv

iction that was us ed to enhance a sentence. See Tenn. C ode Ann . § 40-30 -202(b)

. -2- Relief under our Post-Conviction Procedure Act will be granted when a defendant ’ s conviction or sentence is voi d or voidable bec

ause of the abrid

gment 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) ye

ar of the date of the final action of the highest state appellate court

to which an appea

l 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 pe riod is an element of the right to file such

an action and is a c

ondition 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, a

pply its ordin

ary and pla

i n 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 th e date of the fina

l action of the hig

hest state appellate c our t to which an appeal is taken. See Tenn. Code Ann. § 40-30-202(a). The United States S upreme Court is obviously not a state appellate court; therefore, unde r 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.

Notwithst anding, the Defendant asserts that due process requires the tolling of the statute of limitations while his petition fo r certiorari wa

s pending befor

e the Unit ed States Supreme Court. Although post-conviction pr ocedures are n

ot constitutionally

required, “onc

e 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 (T enn. 1995). While r

ecognizing tha

t our statute explici

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

t, applying due process standards, held in S eals v. Statetha t th e “ap pli cat ion of t he s tat ute mus t no t de ny a petit i oner a reasonable opportunity to raise a claim in a meaningful time and manne r.” 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 t im e period provides an applicant a reasonable opportunity to have the claimed issue heard and determined.’” Id. at 278 (quo ting 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 thereforele gally 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-3-

suspendedduring the perio d of in compet ence. 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 fa ct, the Defendant

makes no argument that he was denied the reasonable

opportunity t

o 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 fo

r certiorari to t

he United States Sup

reme Court is pendi

n g. A ccordingly, 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 requir

e toll ing the statute of

limitations while a p

etition for certi

orari is pending before the United States Supreme Court.

Pursuant to statute, the Defendant had one year from the time the Tennessee Supreme Court deniedpermission to appeal to file a petition for post conviction relief. See Tenn. Code Ann. § 40- 30-202(a). Because he did not file his pet ition within this time pe riod, his petition fo

r 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