# FILED

January 16, 1998 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE DECEMBER 1997 SESSION

CARLTON L. MAYO, ) NO. 01C01-9703-CC-00074 ) Appellant ) MONTGOMERY COUNTY ) V. ) HON. ROBERT W. WEDEMEYER ) JUDGE STATE OF TENNESSEE, ) ) (Post-Conviction) Appellee )

FOR THE APPELLANT FOR THE APPELLEE Carlton L. Mayo, Pro Se John Knox Walkup Reg. No. 14403-075 QTRL-B Attorney General and Repor ter P.O. Box 4000 Manchester, Kentucky 40962- 4000 Elizabeth B. Marney

Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, Tennessee 37243-0493 Arthur Bieber Assistant District A

ttorney John W. Carney District Attorney General 204 Franklin Street Suite 200 Clarksville, Tenness

ee 37040

OPINION FILED:

AFFIRMED PURSUANT TO R ULE 20

William M. Barker, Judge1 The petitio n ref ers to the tw o pre vious conv iction s by do cke t num bers only. In the tria l cour t’s order dismissi ng the peti tion for post-convi ction rel ief, t he trial court ind icated t hat the under lyi ng convicti ons being att

acked by the appel lant were i mposed in 1983 and 1984. I n the bri efs which the parties hav

e file d in thi s Court, th ey agree t hat the appel lant’ s pleas of gui lty were to second degr ee burglary and possession of mari juana for re sale. 2

Opinion The appellant, Carlton L. Mayo, appeals from the judgme nt of the Circuit Court of Montgomery County di smissing his petition for post-conviction rel ief without the appointment of counsel or an evidentiary hearing. Following our review of the record upon appeal, we affirm the trial court pursuant to Rule 20 of the Tennes see Court of Criminal Appeals. On May 14, 1996, t he appellant, proceeding pro se , filed an unsworn petition in the Montgomery County Circuit Court seeki ng post-conviction r elief from two criminal convictio ns previou sly entere d against the appe llant as a result of his pleas of guilty. 1 Although the petition alleg es that the appellant had serv ed both of his sentences, he was nevertheless seeking relief from his state c onvictions for the reason that he had been convicted of drug-re lated offenses in federal court in 1993, and his state convictions were used to enhance his federal sentence. In his petition, the appell ant alleges that his guil

ty pleas were not enter ed voluntarily and k

nowingly. In response to the appellant’s petition for post-convic tion relief, the State filed a motion to dismiss contending that the applicable statute of li mitation had expired. The trial court agreed and di smissed the appellant’s petition. On appeal, the appellant argues that the new Post-Conv iction Procedure Act, which became effective May 10, 1995, provided the petiti oner with a one-year window of opportunity from the effective date of the Act within whic h to file a petition seeking post-conviction relief notwithstanding the age of the convictions being collaterally attacked. See Compiler’s Notes to Tenn. C ode Ann. § 40-30-201 (1996 Supp.) referring to Acts 1995, ch. 207 §3. Indeed, a panel of this Cour t adopted the position now being argued on appeal by the appellant in the unr eported opinion in Arnold2 In seeking to obtain a ruling t hat his pet iti on was fil ed withi n one (1) yea r of the ef fective date of the n ew P ost-C onvic tion P roce dure Act, th e app ellant argu es in h is brie f that h e pro perly lo dge d his petiti on at the fed eral pri son postal of fice on May 7, 1996, and ther efore, we shoul d consider t he petit ion filed that date

rather t han May 14, 1996, when it was f iled by the circui

t court cl erk. It

is unnecessary

that we make such a finding, having concl uded that t he petit ion was ti me-barred regardl ess of whether it was filed May 7, 1996, or

May 14, 1996. 3 Carter v. State , No. 03C01-9509-CC-00270 ( Tenn. Crim. App., at Knoxv ille, July 11, 1996). However, our

supreme court recently reversed this Court’ s holding in the Carter case. The unanimous court ruled that the new Post-Convi ction Procedure Act did not provide a new opportunity for petitioners to file post-conviction proceedings in those cases where the statute of li mitation had expired under the former Post-Conviction Procedure Act. Carter v. State , 952 S.W.2d 417 (Te nn. 1997). The convictions which the appellant seeks to collat erally attack in thi s petition occurred in 1983 and 1984. Shortly thereafter, our l egislature enacted a three- year statute of limitation that was applicable to all petition s for post-conviction r elief filed on or after July 1, 1986. Tenn. Code Ann. § 40-30-102 (1986 Supp.) . The appellant’s right t o file for post-conviction relief would therefore hav e been barred on July 1, 1989. See Abston v. State , 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988). Since the instant petition was fil ed May 14, 1996, 2 the trial court was correct in finding that the appellant’s petition w as barred by the applicable statute of limitation. Based upon t he foregoing, we affirm the trial court pursuant to Rule 20 of the Tennessee Court of Criminal Appeals.

__________________________ WILLIAM M. BARKER, JUDGE CONCUR:

______________________________ JOE B. JONES, PRESIDING JUDGE

_____________________________ PAUL G. SUMMERS, JUD GE