FILED

April 29, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

MARCH 1998 SESSION

GARY S. MAYES, ) 

) C.C.A. No. 03C01-9707-CR-00281 

Appellant, )

) Loudon County

V. )

) Honorable E. Eugene Eblen, Judge

)

STATE OF TENNESSEE, ) (Post-Conviction)

) 

Appellee. )

 FOR THE APPELLANT: FOR THE APPELLEE:

Rex A. Dale John Knox Walkup

Attorney at Law Attorney General & Reporter 

208 Bank Street

Lenoir City, TN 37771 Ellen H. Pollack

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

Charles Hawk

District Attorney General

Frank Harvey

Assistant District Attorney General

P.O. Box 703

Kingston, TN 37763-0703

OPINION FILED: ___________________

AFFIRMED

PAUL G. SUMMERS,

Judge
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O P I N I O N

The petitioner, Gary S. Mayes, filed a petition for habeas corpus and/or

post-conviction relief in the criminal court at Loudon County. The court denied

the petition as barred by the statute of limitations. The petitioner appealed. We

affirm the judgment of the trial court.

In his pro se petition for post-conviction relief, the petitioner alleges that

he unknowingly pled guilty in 1993. The petitioner pled to aggravated sexual

battery and was sentenced as a Range I offender to ten years to be served at

30%. The petitioner has served 30% percent of his ten-year sentence. The

board of paroles denied him parole and said that he must serve the entire

sentence. He alleges that the board’s denial was based on an illegal 1976

conviction for attempted rape. He claims that the 1976 conviction is illegal

because his counsel did not inform him of his right to appeal. The petitioner

further alleges that the sexual treatment program presently required for parole

eligibility was not a requirement for parole at the time of his conviction. He

further alleges that he has been denied access to the program. Finally, the

petitioner alleges that the psychological evaluation required for parole eligibility

has not been performed on him yet. He alleges that the state’s denial of access

to these programs violates his liberty interest. 

 The court appointed counsel to represent the petitioner. In an amended

petition, the petitioner alleged that his conviction was illegal. He alleged that the

indictment was fatally insufficient because it failed to allege the culpable mental

state required for aggravated sexual battery. The petitioner further alleged that

the classification of all sex offenders as mentally ill persons pursuant to

Tennessee Code Annotated § 33-6-302 (1984) violates the petitioner’s rights to

due process and equal protection. He alleges ineffective assistance of counsel

based on his trial attorney’s failure to explain the consequences of his guilty plea. 
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The state argued statute of limitations and venue. After a brief hearing,

the trial court denied the petition as barred by the statute of limitations. 

On appeal, the petitioner argues that the trial court erred in finding that his

petition for post-conviction relief was barred by the statute of limitations. The

petitioner pled guilty on September 13, 1993. He did not appeal. When the

petitioner's conviction became final, the statute of limitations applicable to

post-conviction proceedings was three years. Tenn. Code Ann. § 40-30-102

(repealed 1995). The three-year statute of limitations was subsequently

shortened to one year by the new Post-Conviction Procedure Act, which took

effect on May 10, 1995. See Tenn. Code Ann. § 40-30-201 et seq. (Supp.

1996). The new Post-Conviction Procedure Act governs this petition and all

petitions filed after May 10, 1995. See Tenn. Code Ann. § 40-30-201 et seq. 

Because the old three-year statute of limitations had not expired on the effective

date of the act, the petitioner had until May 10, 1996, in which to file his petition

for post-conviction relief. See Compiler's Notes, Tenn. Code Ann. § 40-30-201

(1997). He filed his petition on September 4, 1996, several months after the

statute had expired. His petition is therefore barred by the statute of limitations.

See e.g., Shirley v. State, No. 02C01-9612-CR-00478 (Tenn. Crim. App., at

Jackson, Jan. 7, 1998).

The petitioner next argues that, because his conviction became final

before May 10, 1995, he should retain the right to file a post-conviction petition

within three years of his conviction. He argues that limiting his right to file a

petition to May 10, 1996, violates the ex post facto provisions of state and

federal constitutions. We disagree. Our courts have consistently rejected this

argument. See State v Butler, No. 1338 (Tenn. Crim. App., at Knoxville, May 19,

1992); Johnson v. State, No. 02C01-9605-CR-00136 (Tenn. Crim. App., at

Jackson, June 10, 1997). Generally, an ex post facto law is one that imposes

punishment for an act which was not punishable at the time of its commission, or
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an additional punishment to that then prescribed. Calder v. Bull, 3 U.S. 386, 1

(1798); Duncan v. Missouri, 152 U.S. 377 (1894). Here, a change in the period

of limitations for post-conviction relief does not constitute a change to the original

offense or its consequences. The change in the period of limitations relative to

petitions for post-conviction relief has not affected a substantive right of the

petitioner. It relates to a matter of procedure only and is not an ex post facto law

within the meaning of the constitution. State v. Butler, No. 1338 (Tenn. Crim.

App., at Knoxville, May 19, 1992). 

The petitioner next argues that he timely filed his petition within the threeyear statute of limitations. Because we have determined that the three-year

statute of limitations does not apply to the petitioner, this issue has no merit.

Lastly, the petitioner argues that his affidavit establishes that his petition

was filed within the one-year statute of limitations. Citing Carey v. State, No.

03C01-9309-CR-00330 (Tenn. Crim. App., at Knoxville, Nov. 8, 1994), the

petitioner asserts that the effective filing date for a pro se petitioner in custody is

the date of delivery to the proper prison authorities. The Court in Carey

specifically did not reach the issue of whether delivery to prison officials

constituted filing with the clerk of the court. 

 In his affidavit, the petitioner states that he personally delivered his

petition to the authorities at the Riverbend Maximum Security Institute on

December 22, 1995. Also in the record is a cover letter dated December 21,

1995, to the court clerk asking the clerk to file his petition and a prison log

showing that the petition was notarized on December 21, 1995. The court held

that the prison mail log which was made an exhibit to the proceeding did not

support the petitioner’s claim. The mail log indicates that the petition was mailed

to the clerk of the court on August 29, 1996, approximately five days before the

filing date of the petition itself. The petitioner argues the December 22, 1995,
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date of delivery that he specified in his affidavit, should control over the date

stamped filed by the clerk’s office. We disagree. The state did not present an

argument on this issue. The lapse of time between when the petition was

notarized and when it was mailed is suspect. However, we have reviewed the

evidence and answered the argument set forth by the petitioner. 

If any relief might be warranted, the petitioner must file his application for

writ of habeas corpus in the Davidson County Criminal Court, the court closest to

the petitioner. Tenn. Code Ann. § 29-21-105 (1980). Accordingly, to the extent

that the petitioner’s petition is for habeas corpus relief, it is dismissed because

the Loudon County court does not have jurisdiction. His petition for postconviction relief is barred by the statute of limitations. 

Accordingly, the judgment of the trial court is affirmed.

__________________________

PAUL G. SUMMERS, Judge

CONCUR:

______________________________

JOHN H. PEAY, Judge
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______________________________

CORNELIA A. CLARK, Special Judge