IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs November 3, 2015

ANTONIO BYRD v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. P-20287 Glenn Wright, Judge

No. W2015-00228-CCA-R3-PC - Filed November 18, 2015

The petitioner, Antonio Byrd, appeals from the Shelby County Criminal Court’s denial of 

his motion to reopen his 1999 petition for post-conviction relief. Because the petitioner 

failed to comply with the statutory requirements for appealing the denial of a motion to 

reopen a post-conviction petition, we are without jurisdiction to hear the appeal, and the 

appeal is dismissed.

Tenn. R. App. P. 3; Appeal Dismissed

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which ALAN E.

GLENN and TIMOTHY L. EASTER, JJ., joined.

Eric Mogy, Memphis, Tennessee, for the appellant, Antonio Byrd.

Herbert H. Slatery III, Attorney General and Reporter; Ahmed A. Safeeullah, Assistant 

Attorney General; Amy P. Weirich, District Attorney General; and Carla Taylor, 

Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

In 1994, a Shelby County Criminal Court jury convicted the petitioner of 

one count each of first degree murder, especially aggravated kidnapping, especially 

aggravated robbery, and aggravated rape. The trial court imposed a sentence of life 

without the possibility of parole for the murder conviction as well as an effective 23-year 

sentence for the remaining crimes, to be served consecutively to the life sentence. This 

court affirmed the convictions on direct appeal. State v. Antonio M. Byrd, No. 02C01-

9508-CR-00232, slip op. at 1 (Tenn. Crim. App., Jackson, Jan. 2, 1997), perm. app. 

denied (Tenn. Sept. 22, 1997). The petitioner then filed a petition for post-conviction 

relief, which was heard by the trial court and denied on February 18, 1999. It appears 

from the record that no appeal was taken.
- 2 -

On June 11, 2013, the petitioner moved to reopen his prior post-conviction 

petition on the basis that a new constitutional right had been recognized by the Supreme 

Court in Miller v. Alabama, __ U.S. __, 132 S. Ct. 2455 (2012). In Miller, the high court

held that mandatory life imprisonment without the possibility of parole for juvenile 

offenders was violative of the Eighth Amendment’s ban of cruel and unusual punishment. 

Id. at 2457-58. The post-conviction court conducted a hearing on September 10, 2014, 

and on January 5, 2015, the court issued an order denying the petition, finding that the 

petitioner had failed to plead “facts sufficient to sustain a motion to re-open” his postconviction petition because he failed to show “that Miller applie[d] retroactively to his 

case.” On January 30, 2015, the petitioner filed a notice of appeal with the clerk of the 

post-conviction court.

On appeal, the petitioner challenges the denial of his motion to reopen his 

petition for post-conviction relief, arguing that the post-conviction court erred by refusing 

to apply Miller retroactively. The State responds that the appeal should be dismissed for 

lack of jurisdiction because the petitioner failed to file his notice of appeal with the 

proper court.

Appellate review of the denial of a motion to reopen a petition for postconviction relief is governed by statute, rather than by the Rules of Appellate Procedure, 

and the statute requires that “[i]f the motion [to reopen] is denied, the petitioner shall 

have thirty (30) days to file an application in the court of criminal appeals seeking 

permission to appeal.” T.C.A. §40-30-117(c) (emphasis added). “In order to obtain 

appellate review of the trial court’s order, a petitioner must comply with the statutory 

requirements. The Rules of Appellate Procedure do not provide for an appeal as of right 

in these cases.” John Harold Williams, Jr. v. State, No. W1999-01731-CCA-R3-PC 

(Tenn. Crim. App., Jackson, Mar. 23, 2000) (order), perm. app. denied (Tenn. Oct. 16, 

2000); see William Lee Drumbarger v. State, No. M1999-01444-CCA-R3-PC, slip op. at 

2 n.1 (Tenn. Crim. App, Nashville, Dec. 7, 1999) (stating that the rules of appellate 

procedure do not apply to application for permission to appeal the denial of motion to 

reopen post-conviction proceeding).

In the instant case, the petitioner failed to file his application with this 

court, choosing instead to file a notice of appeal with the clerk of the lower court. 

Because the petitioner failed to comply with the statutory requirements, we are without 

jurisdiction to review this matter, and the appeal is therefore dismissed.

_________________________________ 

JAMES CURWOOD WITT, JR., JUDGE