FILED

April 12, 1999

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

LOVELL LIGHTNER, *

Appellant, * C.C.A. # 03C01-9808-CR-00277

VS. * HAMILTON COUNTY

STATE OF TENNESSEE, *

Appellee. *

OPINION

The petitioner, Lovell Lightner, appeals the dismissal of his petition for

post-conviction relief. The following issues have been presented for our review:

(I) whether the petition is barred by the statute of

limitations;

(II) whether the petitioner's guilty plea was knowing and

voluntary; and

(III) whether the petitioner received the effective

assistance of counsel.

Because the petition is barred by the statute of limitations, this court affirms the

dismissal pursuant to Rule 20, Tenn. Ct. Crim. App. 

In 1991, the petitioner was convicted of attempted first degree murder. 

The trial court imposed a fifteen-year sentence. No appeal was taken. On February

6, 1997, the petitioner filed this petition for post-conviction relief, alleging that his

guilty plea was neither knowingly nor voluntarily entered and that his counsel was

ineffective. Appointed counsel filed an amended petition. After an evidentiary

hearing, the trial court dismissed the petition, concluding that it was barred by the

statute of limitations. While acknowledging that the petition is untimely, the

petitioner asserts that the application of the statute of limitations would abridge his

right to due process. See Sands v. State, 903 S.W.2d 297 (Tenn. 1995); Burford v.

State, 845 S.W.2d 204, 208 (Tenn. 1992). 
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Under the Post-Conviction Procedure Act of 1995, a petition must be

filed "within one (1) year of the date of the final action of the highest state appellate

court to which an appeal is taken or, if no appeal is taken, within one (1) year of the

date on which the judgment became final, or consideration of such petition shall be

barred." Tenn. Code Ann. § 40-30-202(a). The statute provides that the limitations

period "shall not be tolled for any reason, including any tolling or saving provision

otherwise available at law or equity." Id. Thus, this petition, filed six years after

entry of the judgment of conviction is barred by the statute of limitations. Id. 

The only exceptions are if the claim is based upon a new rule of

constitutional law applicable to the petitioner's case, the claim is based upon new

scientific evidence showing innocence, or the claim is based upon an enhanced

sentence that was enhanced because of convictions that have subsequently been

found to be illegal. Tenn. Code Ann. § 40-30-202(b). 

Neither ineffective assistance of counsel nor the entry of an invalid

guilty plea qualify as new constitutional grounds for relief. See Strickland v.

Washington, 466 U.S. 668 (1984); Boykin v. Alabama, 395 U.S. 238 (1969). Thus,

the allegations in the petition do not satisfy any exception to the statute of

limitations. Moreover, we do not find that application of the statute of limitations in

this instance runs afoul of due process principles. In Burford v. State, 845 S.W.2d

204, 208 (Tenn. 1992), our supreme court held that in certain situations application

of the statute of limitations in a post-conviction proceeding might violate

constitutional due process. In determining whether there has been such a violation,

the essential question is whether the time period allowed by law provides petitioner

a fair and reasonable opportunity to file suit. Id. In Burford, the petitioner could not

have filed within the three-year limitation absent a determination on his prior
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post-conviction petition. Our supreme court ruled that Burford was "caught in a

procedural trap and unable to initiate litigation ... despite the approach of the

three-year limitation." Id. There was no such trap here.

In Sands v. State, 903 S.W.2d 297 (Tenn. 1995), our supreme court

further defined how to apply the Burford test. Courts are required to 

(1) determine when the limitations period would normally

have begun to run; (2) determine whether the grounds for

relief actually arose after the limitations period would

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 effectively

deny the petitioner a reasonable opportunity to present

the claim. In making this final determination, courts

should carefully weigh the petitioner's liberty interest in

"collaterally attacking constitutional violations occurring

during the conviction process," against the state's

interest in preventing the litigation of "stale and

fraudulent claims." 

Sands, 903 S.W.2d at 301 (citations omitted) (quoting Burford, 845 S.W.2d at 207,

208). 

The petitioner contends his ground for relief arose after the limitations

period:

The appellant discovered in the post-conviction hearing

that his attorney had not reviewed all the discovery

material available to him by the state, nor had his

attorney waited for the mental evaluation report before

advising appellant to enter a plea agreement. 

In this case, the limitations period would have begun when the judgment of

conviction was entered in 1991. In our view, the petitioner's assertions, even if true,

would not qualify as "later-arising." A prompt investigation would have revealed the

deficiencies in counsel's performance. This is not a situation where the state has

suppressed or hidden evidence. The petitioner has offered no explanation for why

he was so tardy in discovering the deficiencies in counsel's performance. Our court
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has "refused to engraft a discovery rule over the statute of limitations in

post-conviction cases." Passarella v. State, 891 S.W.2d 619, 625 (Tenn. Crim. App.

1994). That the petitioner inadvertently stumbled upon deficiencies in counsel's

performance during the evidentiary hearing will not qualify as an exception to the

statute of limitations. Id.

Having concluded the petition is clearly barred by the statute of

limitations, we need not address the other issues. Accordingly, the judgment of the

trial court is affirmed. Costs shall be taxed to the state. 

_________________________________

Gary R. Wade, Presiding Judge

CONCUR:

________________________________

James Curwood Witt, Jr., Judge

__________________________________

Norma McGee Ogle, Judge