# FILED
April 12, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF T ENNESSEE AT KNOXVI LLE
LOVELL LIGHTNER, * Appellant, * C.C.A. # 03C01-98 08-CR-00277 VS. * HAMIL TON COUNTY STATE OF TENNESSEE, * Appellee. * OPINION The petitioner, Lovell Lig htner, appeals the dismissal of his petition for post-con viction re lief. Th e followin g issues ha ve been pr esented for our re view:

(I) whether the petiti on is barred by the statut e of limitations; (II) whether the petitioner's guilty pl ea was knowing and voluntary; and (III) wheth er the pet itioner re ceived the effect ive assistance of counsel. Because the petition is barr ed by the statute of limitation s, this court affirms the dismissal pursuant to Rul e 20, Tenn. Ct. Crim. App.

In 1991, the petitioner was convicted of attempted first deg ree murder. The trial court imposed a fifteen-year sentence. No app eal was taken. On February 6, 1997, the petitioner filed this petition for po st-conviction relief, alleging that his guilty plea was neither knowingly nor voluntarily entered and that his counsel w as ineffective. Appointed counsel filed an am ended petition. After an evidentiary hearing, the trial cour

t dismissed the petition, con cluding that it was barred by the statute of limitations. While acknowledg ing that the petition is u ntimely, the petitioner asserts that the application of the statut e 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).2 Under the Post-Convic tion Procedure Act of 1995, a petition must be filed "within one (1) y

ear of the date of the final action of the hig hest state appellate court to which an appeal i s taken or, if no appeal is tak en, within one (1) y

ear of the date on which the judgment became final, or consideration of suc h 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 sav

ing provision otherwise availabl e at law or equity ." Id . Thus, this petition, filed s ix years after entry of the judgment of convi ction is barred by the statute of limitations. Id

.

The only exceptions are if the claim is based upon a new rule of constitutional law appl icable to the petitioner's case, the claim is based upon new scientific evidence show ing innocence, or the cla im is based upon an enhanced sentence that was enhanced becaus e of convictions that have subsequently been found to be illegal. Tenn. Code Ann . § 40-30-202(b).

Neither ineffective assistance of counsel nor the ent ry of an invalid guilty plea quali

fy as new constitutional grounds for relief. See Stricklan d v. Washington , 466 U.S. 668 (1984); Boykin v . Alabama , 395 U.S. 238 (1969). Thus, the allegations in the peti tion do not satisfy any ex ception to the statute of limitations. Moreover, we do not find that application of the statute of limitations in this instance runs afoul of due proc ess principles. In Burford v. State , 845 S.W.2d 204, 208 (Tenn. 1992), our supreme cou rt held that in certain si tuations application of the statute of limitations in a pos t-conviction proceedi ng might violate constitutional due process.In determining whether there has been such a viol ation, the essential question is whether the time period al lowed by law pr ovides petitioner a fair and reasonable opportunity to file suit. Id . In Burford , the petitioner could not have filed within the th ree-year limitation absent a determination on his pr ior3 post-conviction petiti on. Our supreme court ruled that Burford was "caught i n a procedural trap and unable to i nitiate litigation ...despite the approach of the three-year limitatio n." Id . There was no such trap her e.

In Sands v. State , 903 S.W.2d 297 (Te nn. 1995), our supreme court further defined how to apply the Burford test. Courts are req uired to

(1) determine when the limitations period would normally have begun to run; (2) de termine whether the gr ounds for relief actually arose after the limitations period would normally have commenced; and (3) if the grounds are "later-arising," deter

mine if, under the facts of the case, a strict application of the limitations period would effectively deny the petitioner a reas onable opportunity to present the claim. In making this final determination, courts should carefully weigh the petitioner's liberty interest in "collaterally attack

ing constitutional v

iolations 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 (cita tions omitted ) (quoting Burford , 845 S.W.2d at 207, 208).

The petitioner contends his g round for relief arose after the li mitations period: The appellant discovered in the post-conviction hear ing 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 limitati ons period would have begun when the judgment of conviction was enter

ed in 1991. In our view , the petitioner's assertions, even if true, would not qualify as "later-arising." A pr ompt investigation w

ould have revealed the deficiencies in counsel's performance. This is not a situation where the state has suppressed or hidden evide nce. The petitioner has offered no ex planation for why he was so tardy in discovering the deficiencies in counsel's performance. Our court4 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 de ficiencies in counsel's performance during the evi dentiary hearing w ill 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 ad dress the other issues. Ac cordingly, the judg ment of the trial court is affirmed. Co sts shall be taxed to the state.

_________________________________ Gary R. Wad e, Presiding Judge CONCUR:

________________________________ James Curwood W itt, Jr., Judge

__________________________________ Norma McGee Ogle, Judge