1 The facts leading to the appe

llant 's conv iction s as reci

ted in t his cour t's opi nion on direct ap peal revea l that: The appellant res

ided with th

e two victi

ms, his fa

ther and grandmo ther. His grandmother was 81 and physicall y disabled. The appell ant had a history of drug abuse. He was prohibited from driving and s ubject to a c urfew. He re sented his (continued ...) 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON Assigned on Briefs O

ctober 3, 2000
JEFFREY BIVENS v. STATE OF TEN NESSEE
Direct Appeal from the Circuit Court for Madison County No. C99-191, Roy B. Morgan, Jr., Judge

No. W1999-01028-CCA-R3-PC - Filed November 3, 2000

Jeffrey Bivens appeals f

rom the Madison Coun

ty Circuit Cour

t’s denial of his pe

tition for postconviction relief. Although the petition was filed outside the one year limitations period,

the postconviction court excused the “late-filed” petition “in the interest of justice.” Following a hearing upon the merits of the petition, the court den ied post -conviction relief. Because the petition was time-barred, the post-convicti on court was withou

t jurisdiction to

conduct a hearing on the

merits. For this reason, dismissal of the petition is affirmed.

Tenn. R. App. P. 3; Ju

dgment of the Circ

uit Court is Affirme

d.

D AVID G. H AYES , J., delivered the op inion of the court,

in which J ERRY L. S MITH , J. and A LAN E. G LENN , J., joined.
Scott G. Kirk, Jackso

n, Tennessee, fo

r the appellant, Je

ffrey Biv ens.
Paul G. Summers, Attorney General and Repor te r, Michael Moore, Solicitor General, Lucian D. Geise , Assi stant Attorney General, James G. (Jerry) Woodall, District Attorney General, and Al Earls, Assistant District Attorney General, for the appellee, State of Tenne ssee.

OPINION

The appellant, Jeffrey Bivens, appeals the dismissal of his petition for post-conviction relief by the Circuit Court of Madison County. The appellant was convicted by a jury of two counts of

first degree murder and receive d consecutive se ntences of life w

ithout parole on ea

ch count. 1 His1 (...continue d) restrictions. In July of

1993, the appellant

called his employer.His employer inf ormed him that he was laid off. Later that da y, the appellan t killed both his fath er and his grandmo ther. Both v ictims were: (1 ) beaten with a hammer; (2 ) stabbed multiple times; and (3) slashed a cross the thro at. The ap pellant took money from his fath er's billfold and his grandmother's purse. He stole a VCR and his father' s car. He then purchase d "crack " cocaine and "go t high." State v. Bivens , 967 S.W .2d 821 , 823 (T enn. Crim. A pp. 199 6), perm. to appeal denied , (Tenn. 1997).

2 Specificall

y, in excus

ing the lat

e-filed pet

ition, t he trial court state

d Many times we see petitions filed years and some times filed three and four . . . years past the cutoff. I understand the State’s ar gument, but I f

eel like under the circ umstances, in th e interest of justice , this is not one that w as tremend ously delayed , and coun sel is coming in and been very candid that t hey feel like from the

ir recor ds that they did not send out noti ce to Mr. Biven s as to t he decisi on rendered by the higher co urt.
I’m going to a llow the petition for post-con viction to pro ceed . . . .

3 On appeal, t

he appell ant all

eges as gr

ounds for i

neffec tivenes s tria

l cou nsel's fail ure (1) to challenge the suppressi

on of his s

tatement on direct

appeal; (

2) to object to the State's failure to disc lose exculp atory eviden ce; (3) to obtain expert witnesses; (4) to make ti mely objections to the int roduction of evi

dence; (5) to object

to the bias of

the trial court; and (6 ) to adequ ately confer with th e appellan t in prepara tion for trial.
-2- conviction was affirmed

on direct appeal to this court. See State v. Bivens , 967 S.W.2d 821 (Tenn. Crim. App. 1996), perm. to appeal denied , (Tenn. 1997). A pro se petition seeking post-conviction relief was filed by the appellant on May 17, 1999. The appe l lant collaterally attacked his murder convictions upon numerous grounds including ineffective assistan ce of counsel, coerced confessions , Brady violations, and judicial misconduct. The State moved to dismiss the petition as barred by the
one year statute of limitations. The appellant requested the court excuse the late-filing of the petition explaining that the la

te-fil ing was due to ap

pellate counsel’ s failure to notify him of the supreme court’s denial of his Rule 11 applica tion. The post-conviction court “excuse[d] the statute of limitations in this case” 2 and proceeded t o hear the petition on its merits. On October 15, 1999, the post-conviction court denied the appellant relief, finding that

the appellant “failed to meet his burden of proof as to any and all issues raised in the pe t ition.” In this appeal of right, the single issue presented by the appellant for our

review is whether the appellant was denied the effective assistance of counsel at trial. 3 We conclude, however, that the dispositive issue is whether the petition is timebarred. Finding the petition barred by the statute of limitations, we affirm the post-convictioncourt’s dismissal. Pursuant to Tenn. Code Ann. § 40-30-202(a)(1997),
a person in custody under a sentence of a court of this state must petition for post-conviction relief within one year of th

e date of th

e final action of

the highest state appellate court to which

an appeal is taken

or, if no appeal is taken, within one4 We acknowledg e that t he Post-Conv

iction Procedure Act

is not a con stitut

ionally mandat

ed procedure. Accordi ngly , the legi slat ure may properl y impos e limi

tati ons upon the t ime in which the caus

e of action ari

sing under the act must be brought.
-3- year of the date on which judgment became final. The statute of limitations shall not be tolled for any reason, including any tolling or saving provision

otherwise availa

ble at law or equity. Time is of the essence of the right to file a petitio n for postconviction relief or motion to reopen . . . , and the one-year limitations period is an element of the right to fil

e such an acti

on and is a condition upon its exercise. Except as specifically

provided . . . the right to file a petition for post-conviction relief . . . shall be ex

tinguished upon the expir ation of the limitat

ions period.

Tenn. Code Ann. § 40-30-202(a)(emphasis added). Indeed, bey ond the one ye ar statute of limitations, the trial court lacks jurisdiction to

hear a petition unless one of three limited exceptions app ly. 4 SeeTenn. Code Ann. § 40- 30-202(b). These exceptions are statutorily limited to the following:
(1) The claim in the petition is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial, if retrospective application of that right is required. . . .
(2) The claim in the petition is based upon new scientific evidence establishing that such petitioner is actually innocent of the offense or

offenses for which the petitioner was convicted; or
(3) The claim asserted in the petition seeks relief from a se ntence that was enhanced because of a previous convict

ion and such conviction in the case in which th e claim is asserted was no

t a guilty pl ea with an agreed sentence, and the previous conviction has subsequently been held to be invalid. . . .

Tenn. Code Ann. § 40-30-202(b)(1), -202(b)(2), -202(b) (3) (emphasis added). Additionally, the limitations period may also be tolled where application of the one year period would offend principles of due process. See Burford v. State , 845 S.W.2d 204, 208-209 (Tenn. 1992).

Altho ugh the Post-Conviction Procedure Act provides several limited exceptions to the one-year statute of limitations, none of them are applicable to the pres ent case. See Tenn. Code Ann. § 40-30-202(b). Moreover, application of the statute of limitations in this case does not create a procedural trap offending due process. See Burford , 845 S.W.2d at 208-209. See, e.g. , State v. Phillips , 904 S.W.2d 123, 124 (Tenn. Crim. A pp. 1995)( failure to comply with the statute of limitations, even when based upon erroneous advice from an attorney , doe s no t provide an exception).-4-

The judgment in the pr

esent case bec

ame final on July 7, 1997. Thus, the appellant had until July 7, 1998, to file his petition. The petition, h owever, was not f iled until May

17, 1999, well beyond the applicable statute of

limitations. Accordingly, the trial court was wi

thout jurisdiction to hear the petition and de

termine its merits.

Moreover, the Post-Conviction Act requires that a petition filed outside the appl icable limitations period be summarily dismissed without conducting an evidentiary

hearing. See Tenn. Code Ann. § 40-30-206(b) ( 1997); see also Tenn. Sup. Ct. R. 28, § 6(B)(4)(c).

Acco rdi ngly, the post-conviction court lacked jurisdi ction to consider th e appellant’s petition
on its merits and was required by statute to dismiss the petition. Although we reach the sameresult albe it thr ough different means, we affirm the judgment of the post-conviction court deny ing the appellant post-conviction relief.

___________________________________ DAVID G. HAYES, JUDGE