# FILED
February 1, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE AT NASHVILLE

FOR PUBLICA

TION Filed: February 1, 1999 CHARLES WALTON WRIGHT, ) ) Appellant, ) DAVIDSON CRIMINAL ) ) Vs. ) HON. WALTER C. KURTZ, ) JUDGE ) STATE OF TENNESSEE, ) ) Appellee. ) No. 01-S-01-9709-CR-001 96

For Appellant: For Appellee: Donald E. Dawson John Knox Walkup Post-Conviction Defender Attorney General & Repor ter Nashville, Tennessee Michael E. Moore Solicitor General Amy L. Tarkington Assistant Attor

ney General Nashville, Tennessee
At Trial: Victor S. Johnson District Attorney General John Zimmerman Assistant District A

ttorney Nashville, Tennessee



## O P I N I O N

COURT OF CRIMINAL APPEALS AFFIRMED. ANDERSON, C.J.-2- We granted this appeal to determine whether the appellant’s due process rights were violated w

hen the lower courts di smissed his post conviction petition as timebarred b y the th ree-ye

ar stat ute of li mitatio ns sinc e the ass

erted v iolati on of Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L.Ed. 2d 215 (1963), did not ari se until after expiration of the three-year statute of limitations.
The Court of Criminal Appeals affirmed the trial court’s dismi ssal of the petition after concluding that the appell ant’s interest in asserting and litigating the issue did not outweigh the State’s i nterest in preserving final judgments and preventi ng the litigation of stale claims.
We conclude that the exculpat ory evidence issue was a “later-arising” claim in th at it di d n ot ar is e u nt il af

te r t he po st -c on vi ct io n sta

tu te of li mi ta ti on be ga n to r un . We further conclude, however, that the appellant’s interest in litigating the later-arising claim at this stage of the proceedings did not outweigh the St ate’s interest in preser

ving final judgments and preventing the litigation of stale claims. We therefore affirm the Court of Criminal Appeals’ judg ment.

BACKGROUND In April o f 1985, the appe llant, Ch arles W alton W right, was co nvicted of two counts of premeditated first degr ee murder. According to the evidence at trial, Wright shot and killed two v

ictims, Gerald Mitchel l and Douglas Alexander, during the course of a drug transaction. He was sentenced to life impri sonment for the killing of Mitchell and to death by electrocution for the killing of Alexand er. The convictions and s entences were affirmed by this Cour t on direct appeal. State v. Wright , 756 S.W.2d 669 (Tenn. 1988), cert. denied , 488 U.S. 1034, 109 S. Ct. 848, 102 L. Ed. 2d 979 (1989). The Court denied Wright’s petition for reh earing on August 29, 1988.1 This petit ion is act ually the peti tioner’ s third. The second, fil ed pro se on August 29, 1991, was dismissed by t he trial court wit hout a heari ng. Alt hough no appeal was fi led at t hat ti me, the appell ant sought to resurrect that appeal in the present case . The Court of Cri minal Appeals pr operly ruled i t was untimely and refused to r eview the i ssues therein

. 2 Now c odified in T enn. Co de Ann . § 40-30 -202 (19 97), the sta tute of lim itations for p ostconviction under th e prese nt Post-C onviction P rocedu re Act is on e year. -3- In May of 1989, Wright filed his first petition for post-convicti on relief, which was denied by the trial court after an evidentiary hearing. The Court of Criminal Appeals affirmed. Wright v. State , No. 01C01-9105-CR-00149 ( Tenn. Crim. App., Nashvil le, Apr. 7, 1994). This Court deni ed Wright’s application for permissi on to appeal on September 12, 1994, and the United State s Supreme Court subsequently denied Wright’s petition for certiorari , 513 U.S. 1163, 115 S. Ct. 1129, 130 L. Ed. 2d 1091 (1995).
Wright filed the present post-convic tion petition on January 27 , 1995, 1 alleging, in part, that the prosecution had v iolated his state and federal r ights to due process by withho lding e

xculpa tory ev idence i n viol ation of Brady v. Maryl and , 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Among other things, Wright claimed the prosecution suppressed evidence demonstrating that he had a ment al illness; that he did not kill Alexander; that other pers ons were at the scene of the ki lling; that a heated arg ument had occurred at the scene; that Mitchell’s girl friend had committed the killings after discovering that M itchell and Alexander w ere homosexual lovers ; that Mitchell had a “drug connection” in N ashville; and that the v ictims were engage

d in drug trafficking w

ith two other individual s at the time of the shooting.
Although the three-year statute of limitations then appli cable to post-convicti on suits had expired three years after his convi ction became final, see Tenn. Code Ann. § 40-30-102 (1990), 2 Wright argued that the exculpatory evidence issue did not arise until the decision in Capital Case Resource Center v. Woodall , No. 01A01-9104-CH00150 (Tenn. App., Nashvill e, Jan. 29, 1992). In that case, the Middle Section of the3 Because the peti tion was fi led pri or to May 10, 1995, the fo rmer Post-Convict ion Procedure Act applies i n this case. Tenn. Code Ann. §§ 40-30- 101 to -124 (199 0) (repeal ed 1995) (now codi fied Tenn. Code Ann. §§ 40 -30-201 to -222 (1997)). -4- Court of Appeals held that polic e investigative files concerning a case under collateral attack were not exempt from disclosure under the Tennessee P ublic Records Law.

The trial court dismissed the petition without a hear ing because it was fil ed after the three-year statute of li mitations. Tenn. Code Ann. § 40-30- 102. The Court of Criminal Appeals agreed that the grounds for the exculpatory evidence w ere not available until the deci sion in Woodall was released on January 29, 1992, yet held that the suit was properly dismissed because Wright’s interest in having the issue heard did not outweigh the State’s interest in preservi ng final judgments and prev enting the litigation of stale clai ms. We granted Wright’s application for permissio n to appeal and now affirm.

ANAL YSIS At the time Wright filed this post-conv iction suit in January

of 1995, 3 the PostConviction Procedure A ct provided: [a] prisoner in custody

under sentence of a court of this st ate must petition for post-conviction relief under this chapter within three (3) y ears of the date of the final action of the highest state appellate court to w hich an appeal is taken or consideration of such petition shall be barred. Tenn. Code Ann. § 40-30-102 (emphasis added).
Applying this statute to this case, the three-year period began to run when this Court denied Wright’s petition for reh earing of his direct appeal on August 12, 1988; thus, Wright’s petition filed in Januar y of 1995 was more than three years after the expiration of th e statute of li mitations. W right, however, citing Burford v. State , 845 S.W.2d 204 (Tenn. 1992), argues that since the ex culpatory evidence c

laim was-5-

unavailable until the deci sion in Woodall , his case falls withi n an exception to the threeyear limitations peri od.

In Burford , the petitioner’s post-c onviction suit in Trous

dale County challengi ng his sentencing as a persi stent offender was filed after the stat ute of limitations; he argued, however, that he could not raise the issue until prior convictions sustained in Wilso n County, which had b een used to enhan ce his sen tence in T rousdale County, were set aside in a separ ate post-conviction sui

t. We recognized that the application of the statute of limitations must comport with due process: [B]efore a state may terminate a c laim for failure to comply w ith procedural requirements such as statutes of limitations, due process requires that potential litigants be provi ded an opportunity for the presentation of claims at a meaning ful time and in a meaningful manner. The question, then is “w hether a state’s policy

reflected in the statute affords a fair and reasonable opportunit y for . . . bringing

. . . suit.” In other words, the test i s whether the time period provides an applicant a reasonable opportunity to ha ve the claimed issue heard and determined.
Id. at 208 (citations omitted).Moreover, giv en the unusual procedural facts c onfronting the petitioner, we concl uded that “under the circumstanc es of a particular case, application of the statute [did] not afford a reasonable opportunity” to litigate an issue. Id.

In a later case we clar ified Burford by recognizing that “due process prohibit s the strict application of the post-conviction statute of limitation s to bar a petitioner’s claim when the grounds for relief, whether legal or factual, arise after . . . the point at which the limitations period w ould normally have beg un to run

. ” Sands v. State , 903 S.W.2d 297, 301 (Tenn. 1995) (emphasis added). W e established the following framework:
(1) determine when the li mitations period would nor mally have begun to run; (2) determine whethe r the grounds for relief act ually arose after the limitations period wou ld normally have commenced ; and (3) if the grounds are “later-arising,” determine if, under the facts of the case, a strict application of the limitations period would effe ctively deny the petitioner a reasonable opportunity to pr esent the claim.4 Like Wright in t he present case, Caldwell asserted that the issue was not

availab le unti l after

the Cou rt of A ppe als’ W ood all decis ion ho lding t hat p olice in vest igative files w ere n ot ex em pt fro m th e Pu blic Records Law. -6- Id. To determine whether a petit ioner was denied a reasonable opportunity to present a claim, a court must balance the liberty interest i n collaterally attack ing the constitutional violations occurring during the conviction process against the State’s legitimate interest in preventing the litigation of stale and fraudulent claims. Id. ; see also Caldwell v. State , 917 S.W .2d 662 (Tenn . 1996) (also app lying Burford and Sands analysis).
We employed this type of balancing analy sis in Burford . With respect to the State’s interest, we obs erved that there was n othing stale or fraudulent about the petitioner’s claim, that there was no difficulty w ith the availability

of witnesses or the memories of witnesses, and that there was no problem with respect to a groundless claim generating excessive costs. We further stressed “that the p etitioner ha[d] a valid claim to have his sentence reduced, and all the [post-conviction] court will have to do is examine the record of the . . . proceedings.” 845 S.W.2d at 209. Finall y we stressed the significant liberty

interest at stake to the peti tioner: [A]pplication of the statute . . .will deny [Burford] of a fundamental right. If consideration of the petition i s barred, Burford will be forced to serve a persistent offender sentence that w as enhanced by previous convictions that no longer stand. As a r esult, Burford will be forced to serve an excessive sentence i n violation of his rig hts under the Eighth Amendment to the U.S. Constitution, and Article I, § 16 of the Tennessee Cons titution, which, by definition, are fundamental rights entitl ed to heightened protection.
Id. Thus, after concluding that Bur ford’s interest in raisi ng and litigating the issue outweighed the State’s i nterest, we held that appli cation of the statute of limitations to bar Burford’s petition v iolated due process. Id. at 209-10.
By contrast, in a 1996 cas e, the petitioner in Caldwell filed a post-conviction petition in which he cha llenged an unlawful arr est. 4 After concluding that Caldwell’s-7-

claim was a “later-

arising” issue, w

e turned to the balancing tes t and contrasted the State’s interest with that in Burford : [I]t is beyond question that the State interests here a re much stronger than in Burford . With respect to the interest in prev enting the litigation of stale claims, we note tha t the events at issue here occurred almost fifteen years a go. Bec ause the officers involved wi ll lik

ely be c alled to testify regarding the arrest

and the ensuing events, the re is a real danger that their memories will have faded to such a degree as to make reconstructing the ev

ents difficult or impossible. Moreover, there is the possibility that the officer s may not even be avail able to testify, another concern voiced in Burford

. Thus, all the dangers inher ent in the litigation of stale claims -- which the State has a legitimate interest in preventing -- appear to be present here

. 917 S.W.2d at 666 (emphasis added). We also found that the nature of the rig ht asserted in Caldwell -- the right to suppress evidence derived from an unlawful arrest-- differed significantly from the right to be free from an excessive sentence asserted in Burford : The right at issue in Burford is a personal trial right of a defendant which goes directly to the justice or integrit y of the conviction or sentenc e. On the other hand, the “right” to exclude evidence gathered as a result of an unreasonable seizure, based as it is on the rationale of deterring police misconduct, is not a personal trial right. And a v

iolation of the constitutional guarantees,if proven, does not necessar ily result in a reversal of the convic

tion. 917 S.W.2d at 667. Accordingly, we concluded that application of the three-year statute of limitations did not deny Caldwell a reasonabl e opportunity to present the pretextual arrest is

sue.
Applying this framew

ork to the present case, w e find that the three-year st atute of limitations began to run when this Court affirmed W right’s conviction and sentence and denied his petition for rehearing on August 29, 1988. T he Court of Appeals’ decision in Woodall , holding that police inv estigative files w

ere not exempt from disclosure under the Publi c Records Law, was released on January 29, 1992. Accordingly, it app ears that the excu lpatory evidence is sue was, in fact, later-arising, under the analysis in Sands and Caldwell

.5 Altho ugh we have no t addres sed thi s specif ic is sue, th e Court of Criminal

Appeals h as drawn different c onclusio ns from similar fa cts and circum stance s. E.g. , W ooden v. State , 898 S.W.2d 752 (Tenn. Crim. App. 1994 ) (remanded for heari ng to determine whether evidence was excul patory andif so, whether Burford excep tion applied ); Sam ple v. State , No. 02C01-9505-CR-00131 and No. 02C01-9505- CR-00139 (Tenn. Crim. App., Jackson, Sept. 30, 1996) (apply ing Burford exception and r emanding for further pr oceed ings on e xculpato ry evidence ); Arm strong v. S tate , No. 01C01-9311-CR-00403 ( Tenn. Crim. App., Nashvi lle, Dec. 8, 1994) ( applyi ng Burford exception and r emanding for proceedi ngs on exculpa tory evidenc e issue)

. But see Porterfield v. State , No. 02C 01-961 1-CR -00388 (Tenn . Crim. A pp., Jack son, Ap r. 2, 1997) (rejecting la ter-arising e xculpato ry evidence issue an d affirm ing dism issal of po stconviction petition). -8- The critical inquiry

is whether, under the facts of this case, application of the three-year statute of limitations effectively denied Wright a “ reasonable opportunity” t o raise this issue. In making this inquiry, we must balance Wright’s interest in collaterally challenging his conviction by raising this constitutional issue against the State’s legitimate interest in preserving the finality of judgments and preventing the litigation of stale and fraudulent claims. 5
We initially observe that the right asserted by W right -- the denial of due process resulting from the prosecuti on’s suppression of exculpa tory evidence -- is a personal trial right direc

tly relating to the justice or integrit y of the conviction and se ntence. Brady , 373 U.S. at 87, 83 S. Ct. at 1197; State v. Spurlock , 874 S.W.2d 602, 609-10 (Tenn. Crim. App. 1993). It is, therefore, more similar to the liberty interest asse rted in Burford than the interest in Caldwell

.
The other side of the scale, how ever, weighs heav

ily in favor of the leg itimate interests of the State. The post-c onviction suit filed by

Wright was filed ten years after the commission of the offense; nearly s ix and one-half years after Wright’s conviction became final; three and one-half year s after the three-year post -conviction statute of limitations expired; and nearly three years after the Court of Appeals decided in Woodall that police investig ative files were not exempt from the Public Records Act.

As in Caldwell , this passage of time is di rectly related to the manne r and means of litigating Wright’s issue. The availability of critical witnesses and their ability to recall and relate details as to the al leged suppression of excul patory evidence and the facts of6 The cases previously decided by the Court of Criminal Appeal s with respect to simil ar issues, therefore, are li mited to the f acts and cir

cumstances presented in those cases.

-9- this offense are immediate and signi ficant concerns. Wright’s mere allegation that the prosecution suppressed ex culpatory evidence does not warrant relief. Ins

tead, Wright must establish that favorable evidence existed, that it was material to the d efense, and that it was, in fact, suppr essed by the prosecution. Accordingly, as i n Caldwell , raising this issue at this sta ge of the proceed ings, would require ext ensive, po ssibly expe nsive litigation. Cf. , Burford , 847 S.W.2d at 209 (raising the issue r equires trial judg e to simply examine the record of the proceedings).
Wright argues that the three-year statute of limitations contained in the former Post-Conviction Act s hould be applied to later-ar ising issues. See, e.g. , Burford , 847 S.W.2d at 210 (Daughtrey, J., concurr ing). The State, on the other h and, asserting that Wright did not act promptly in rai sing this issue once hav ing the benefit of the decision in Woodall , invites the Court to apply a one-year statute of limitations to all late r-arising claims. We agree that the timeliness of raising a later-arising issue is a relevant factor; however, as in pri or cases, we decline t o apply a bright-li ne period of time in which t o raise later-arising issues be it one year or three. Instead, our rule requires that each case be examined under the analy sis set forth above and in l ight of the specific facts of the case. 6
Accordingly, w

e conclude that the post-conv iction suit was prope rly dismissed, and we affirm the judgment of the Court of Criminal Appeals.

CONCLUSION We conclude that the pe titioner’s issue regarding the suppression of exculpatory evidence is a later-ar

ising claim. We further conclude, how ever, that the petitioner was not deni ed a reaso nable op portunit y to have th e issue he ard and li tigated. Accordin gly, we affirm the judgment of the Court of Criminal App eals.-10- Costs of appeal are assessed ag ainst the appellant, Charles Walton Wright, for which execu tion may is sue if ne cessary.

____________________________________ RILEY ANDERSON, CHIEF JUSTICE

CONCUR: Drowota, Birch, and Holder, JJ. Barker, J., not p articipating