### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on Briefs M

arch 7, 2001
MARVIN MATTHEWS v. STATE OF T ENNESSEE Direct Appeal from the Criminal Court for Shelby County Nos. P-11481, P-14645, P-14646, P-14647 Carolyn Wade Blackett, Judge

No. W1999-00833-CCA-R3-PC - Filed April 17, 2001

The petitioner, Marvin Matthews, appeals the trial court's dismissa l of his petition for

postconviction relief. Beca

use the petition is ba

rred by the

statute of limitations, among

other reasons, the judgment of the trial court is affirmed.

Tenn. R. App. P. 3; Ju

dgment of the Trial

Court Affirmed.
G ARY R. W ADE , P.J., delivered the opinion of the court, in which D AVID H. W E LLES a nd N ORMA M C G EE O GLE , JJ., joined. Joseph S. Ozment, Memph is, Tennessee, f

or the appellant,

Marvin Matthews.
Paul G . Summers, Attorney General & Repo

rter; Michael E.

Moore, Solicitor Ge

neral; K im R

. Helper, Assistant Attorney General; and Rhe

a Clift, Assist

ant District Attorney General, for the appellee, State of Tennessee.
OPINION
On December 13, 1988, the petitioner was convicted of grand lar ceny. Because the petitioner had 13 pr ior convict ions for, am ong other th ings, forgery, gran d larceny, attem pted third degr e e burglary , escape , receiving stolen property, third degree bur glary, and second degree bur glary, he was declared a habitual criminal and received a life sentenc e. S ee Tenn. Code Ann. § 39-1-806 (repealed 1989). On January 17, 1990, this court affirmed the judgment

of the trial court. Marvin Anthony Matthews v. State , No. 16 (Tenn. Crim. App., at Jackson, Jan. 17, 1990). Application for permission to appeal to our supreme court was denied on May 14, 1990. Later, the petitioner fi led a petition for post-conviction relief attacking his 13 prior convictions,

contending that all had been based upon guilty pleas prior to whi ch he had not been advised of his right against self-incriminat ion. The tri al court denied relief. In his appeal, the petitioner conceded that he

had knowingly

and voluntarily

enter ed his pleas of guilt, after being warned of his right aga

inst self-incrimin

ation, for his five

prior convictions

entered in

November of1 The petition does not bear a filing date. On April 10, 1 995, the cle rk acknow ledged the filing of a motion f or the state to file a resp onse. It is our infer ence that the m otion was a p art of the origina l petition.

2 The cur rent statute of limitatio ns, Tenn. C ode Ann . § 40-30 -202, bec ame effective May 10 , 1995. -2- 1970, April of 1984, and A ugust of 1984. Be

cause the petitioner had not been warned of his right against self-incrimination in the eight other guilty pleas, however, those convictions were set aside. Marvin A. Matthews v. State

, No. 02C01-9204-CR-00091 (Tenn. Crim. App., at Jackson, Feb. 24, 1993). Application for permission to appeal was denied June 3, 1993.
On April 10, 1995, 1 the petitioner filed a petition for post-conviction relief challenging the validity of the five convictions that had been upheld in his prior post-conviction proceeding. The petitioner, among ot

h er things, alleg

ed that he should no

t be required to se

rve a life sente

nce as a habitual criminal when some of his prior convictions, uponwhich his enhanced sentence had been based, had been set aside.
The trial court denie

d relief, holding

that the petiti

onercannot attack his habitual criminal status so long as the requisite number of predicate offenses remain valid. See State v. Prince , 781 S.W.2d 846 (Tenn. 1989). While the trial court acknowledged that the petitioner would have been entitled to relief had a sufficient number of prior offenses been set aside , it ruled that the five remaining offenses were sufficient to support his classification as a habitua l criminal. S ee Dulsworth v. State , 881 S.W.2d 275, 276 (Tenn. Crim. App . 19 94). It also rejected a claim by the petitioner that his lack of consultation with his post-conviction counsel in the decision to challenge only eight of his prior 13 of

fenses in the earlier ap

peal served as a

n excuse. The tria

l court reasoned

that a claim of ineffective assistance in a pr evious post-convic

tion proceeding

was not a basis for relief

in a subsequent post-conviction proceeding. See House v. State , 911 S.W.2d 705, 712 (Tenn. 1995). Fin all y, it concluded that t he petitio n attacking those convictions was barred by the statute of limitations contained in Tenn. Code Ann. § 40-30-102 (repealed 1995): A prisoner

in custody un

der sentence of

a court of this stat

e must petition for pos

tconvicti on r elief under this chapter within three (3) years of the date of the final action of the highest

state appellate court to which an appeal is taken or consideration of such petition shall be barred. 2 Moreover, the trial court co ncluded that the pe

titioner was not en

titled to any o

f the exceptions to the statute of limitations provided in Burford v. State , 845 S.W.2d 204 (Tenn. 1992).
In this ap peal, th e petitioner argues that the trial court committed constitutional error by ap plying the statute of limitations to bar his claims. He submits that under Article 1, § 8, of th e Tennessee Constitution, which provides that no one shall be imprisoned but by the "law of the land," due process principl

es bar applicati

on of the statute of

limitations. The pet

itioner argues

that he did not have an opportunity to be heard due to the fail ure of his fi rst post-c onviction counsel to challenge his five remaining convictions.-3-

The grand larceny conviction, for which he received a sentence enhanced to a life term for habitual criminality, was final in 1990. By our calculations, the petitioner did not timely attack the grand larceny conviction under the former three-y ear statute of limitation. A s to his prior five felonies, a ny collateral attack would have been barred by 1995 under the same statute. Abston v

. State , 749 S.W.2d 487 (Tenn. Crim. App. 1988). The petitioner has raised no grounds upon which to toll the statute. See Sands v. State , 903 S.W.2d 2 97 (Tenn. 1995) . Moreover, in the petition which resulted in the reversal of eight of his 13 pri

or felony of

fenses, the petit

ioner, through c

ounsel, acknowledged

that five of the ple

as had been "kno

wingly ent

ered since the tr

ial courts did, in fa

ct, advise him of his right against self-incrimination." Marvin A. Matthews , slip op. at 2. That n ot only served as a previous determination of the ground but also as a waiver. In House , our supreme court held as follows: [T]he rebuttable presumption of waiver is not overcome by an allegation that th e petitioner did not personally

and therefore,

"knowingly

and understandingly," waive a ground for relief

. [Instead], waiver is to be determined by an objective standard under which petitioner is bound by the action or in action of his attorn

ey. [Fi nally], there is no right to effective assistan ce of co unsel in post-convi ction proceeding

s, [and therefore] an allegation of ineffective assistance of prior post-conviction counse l does notpreclude application of the defenses of waiver and previous determination.
House , 911 S.W.2d at 706 (emphasis added).
Our courts have cons

istently held

that even when pr

ior convictio

ns are set aside, a

postconviction petitioner is not entitled to relief from habitual criminal ity if three or more qualifying convictions remain. Sherman McDowel l v. State , No. 02C01-9409-CR-00196 (Tenn. Crim. App., at Jackson, Apr. 26, 19

95); Matlock v. State , No. 5 (Tenn. Crim. App., at Jackson, Oct. 4, 1989). Here, the petitioner has five such predicate offenses. This principle of law would also bar relief

. Finally, the petitioner was not denied due process of the law. See McCleskey v. Zant , 499 U.S. 467 (1991). In Seals v. State , 23 S.W.3d 272 (Tenn. 2000), our supreme court considered due process principles in the c ontext of a post-con

viction claim. By

the standards est

ablished in that case, it is o ur conclusion t hat (1) an intere st in collaterally

attacking a co

nviction is not a fundamental right; (2) that the pe titioner has had a reasonable opportunity under the established procedure to present his challenge; and (3) that the state

would be unduly burdened by any extension of time within which to allow this claim. See Seals , 23 S.W.3d at 277-79. Accordingly, the judgment is affirmed.

___________________________________ GARY R. WADE, PRESIDING JUDGE