### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT NASHVILLE FEBRUARY 2000 SESSION FRANK HOLIDAY v. STATE OF TENNESSEE Direct Appeal from the Criminal Court for Davidson County

No. 92-D-2156 Seth Norman, Judge

No. M1999-01010-CCA-R3-PC - Decided July 7, 2000

The appellant/petitioner, Frank Holiday, appeals as of right from a dismissal of his petition for post-conviction relief by the Davidson County Criminal Court on the basis that the petition was barred by the statute of

limitations. The petitioner, pro se, presents one appellate issue: Did the trial court err in failing to appoint counsel andconduct an evidentiary hearing in this matter, in view of the egregious failur e of counsel to protect the petitioner’s right to an appeal, and if not, is the petitioner entitle

d to a delayed app

eal? Tenn. R. App. P. 3; Judgm ent of the Crimina

l Court is Affirme

d.
L AFFERTY , S R
. J., delivered the opinion of the court, in which T IPTON , J., and W ELLES , J., joined. Frank Holiday, Wartburg, Tennessee, Pro Se. Michael E. Moore, Solicitor General and Marvin E. Clements, Jr., Assistant Attorney General, for the appellee, State of Tennessee. OPINION The petitio ner was found guilty of murder first degree by a Davidson County jury an d sentenced to life imprisonmentin the Department of Correction. On direct appeal, the petitioner’s conviction was affirmed by this Court. State v. Frank Holiday, No. 01C01-9402-CR-00067, 1995 WL 702794 (Tenn. Crim. App. Nov. 30, 1995). We quote from this Court’s opinion the s

alient facts surrounding the petitioner’s conviction: Perhaps most significant was the [S]tate’s eyewitness proo f, which included the testimony of three persons who saw the victim’s automobile wreck followed by her running exit from the car and subsequent mur

der. Pat Merrill w

itnessed the cra

sh from her front porch. She said that after the victim ran from

the car, she collapsed in the street and then “picked herself up off the ground.” She heard the victim say to the man who had followed her, “Please, Frank, don’t hurt me. I’ll be good” and continued “begging for her life” d own on her knees. Ms. Merrill then watched a

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man, whom she identified at trial as the defendan t, shoot the victim

in the head, “like she was just

some kind of a dog or something.” She saw and/or heard a total of five shots. Holiday , 1995 WL 702794, at *2. This murder occurred on September 13, 1992. On May 4, 1999, the p

etitioner, an inma

te in the Brushy Mountain Correctional Complex, signed a petition for post conviction relief which was filed with the Davidson County Criminal Court Clerk. In his petition, the petitioner alleged that his counsel failed to apply for permission to appeal withthe Supreme Court after his conviction was affirmed by this Court. The petitioner asserted that his counsel assured

the petitioner suc

h application woul

d be filed if this Cou

rt’s decisio

n wa s adverse to the petitioner’s interests. In additional grounds for relief, the petitioner all eged that his conviction was based upon a violation of the privilege against self-incrimination, that the State failed to disclose to the defendant evidence favorable to him, that his conviction was based on a violation of double jeopardy, and that he was denied effective assistance of counsel. On May 21, 1999, the trial court entered an order dismissing the petition for post conviction relief on the basis that the

petition was not time

ly filed within the st

atute of limitations . Sup. Ct. R. 28, § 4(B). LEGAL ANALYSIS The petitioner asserts that the statute

of limitations, Tennessee Code Annotated § 40-30-202 (a), should not apply to his factual situation in that he did file his petition for relief within one year of discovering his counsel failed to seek an appeal with the Supreme Court. The State counters that the trial court was correct in dismissing this petition in that it is barred by the statute of lim

itations. The record reflec

ts that the petitioner’s direct appeal of his conviction for murder first degree was affirmed on November 30, 1995. The petitioner had sixty (60) days from November 30, 1995, to file an applicati

on for permission to

appeal the judgme

nt of this Court to th

e Supreme Cour t. Tenn. R. App. P. 11(b). In the absence of any application being filed, this Court’s order of judgment became final on or about January 30, 1996. Thus, the provisions of the Post-Conviction Procedure Act of 1995 apply to this case. In pertinent par

t, Tennessee Code

Annotated § 40-30

-202(a) provide

s: (a) Except as provided in subsections (b) and (c), a person in custody under a sentence of a court of this state must pe tition for postconviction relief under this part within

one (1) year of the

date of the final action of the highe

st state appellate

court to which an a

ppeal is taken or, if no appeal is taken, within one (1) year of the date on which the judgment became final, o r consideration of such petition shallbe barred. The statute of limitations shall not be tolled for any reason, including any tolling or saving provision otherwise availa ble

### -3- at law or equity.
Th erefore, the petitioner’s allegations set forth in the petition as to violations agains t self

incrimination, double jeopardy , undisclosed favorable evidence, and ineffective assistance of counsel are barred by the statute of limitations. Between January 30, 1996, an d January 30, 1997, the petitioner had am

ple opportunity to se

ek any relief. H

e did not do so for fo

ur (4) years.
As to the petitioner’s request for a delayed appeal, the trial court did not directly address the petitioner’s relief as to a de layed appeal. Th

e tria l court found that any reasona ble person would have inquired as to the m

erits of his case

sooner. We concur in the trial court’s re

asoning. Even if we take the petitioner’s statement that he filed his petition within one (1) year of lear ning abou t counsel’s failure to appea l to the Supreme Cour

t as true, we find t

hat the statute

of limitations would bar the petitioner from relief. In construing a similar question under the previous Post-Conviction Procedure Act, Tenn. Code Ann. § 4-30-102 (Rpl.), this Court in Handley v. State, 889 S.W.2d 223, 224 (Tenn. Crim. App.), perm. app. denied, (Tenn. 1994), held that the statute of limita

tions for postconviction relief applies to delayed appeal s as well, because the petitioner must comply with the Post-Conviction Proc

edure Act to obta

in a delayed appe

al. The trial court’s judgment is affirmed.