# FILED
December 12, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE OCTOBER 1997 SESSION

DANNY GARRETT, * C.C.A. # 03C01-9603-CR- 00111 Appellant, * KNOX COUN TY VS. * Hon. Ray L. Jenkins , Judge STATE OF TENNESSEE, * (Post-Conviction) Appellee. *

For Appellant : For Appellee : Danny Garrett, Pro Se John Knox Walkup # 123195 Attorney General and Repor ter Northeast Correction Center P.O. Box 5000 Timothy F. Behan Mountain City, TN 37683 Assistant Attorney Gener al 450 James Robertson Parkwa y Nashville, TN 37243-0493 Randall E. Nichols District Attorney General City-County Buil ding Knoxville, TN 37902

OPINION FILED:______________________

AFFIRMED
GARY R. WADE, JUDGE2 OPINION The defendant, Danny Garrett, appeals the trial court's denial

of postconviction relief. The si ngle issue presented for re view is whether

the petition was barred by the statute of limitations.

We affirm the judgment of the trial court.
On October 5, 1987, the petitioner entered pleas of guilt to ar med robbery and assa ult with intent to c ommit murder. The trial court im posed a Range I, fifteen-year sentence for each c harge. There was no appeal . On March 4, 1994, the petitioner received a sentence in federal court for posse ssion of a firearm; his 1987 sentences were used to enhance the length of sen tence. Two months later, the petitioner filed his first petition for post-conviction relief. The trial court dismissed the petition as unti mely filed. See Tenn. Code Ann. § 40-30-102 (repealed 1995). This court affirmed on direct appeal. Danny E. Garrett v. State , No. 03C01-9411-CR-00429 (Tenn. Crim. App., at Knoxville, July 25, 1995).

This petition, the petitioner' s second, was filed on October 25, 1995. The trial court dismissed the petition on the basis that i t was barred by the s

tatute of the limitations. In this appeal, the petitioner argues that his constitutional r ights to due process preclude the statute of limitations as a defense. We disagree.

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 postconviction proceeding

would violate due pr

ocess. In determining w hether there has been a violation of due process , the essential question i s whether the time period allowed by law provides petitioner a fair and reasonable opportunity to file suit. Id.3 In Burford , the petitioner could not file within the three-y

ear limitation absent a determination on his prior post-conviction petition. Our supreme court ruled tha t Mr. Burford was "caught in a p rocedural trap and unable to i nitiate litigation ... despite the approach of the three-year limitation." 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 t he Burford test. Courts must

(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," determi ne 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).
By the use of these guideli nes, we have determined th at the statute of limitations would hav

e begun to run on October 5, 1987. Essentially, the petitioner argues that his pleas were not knowingly and voluntarily entered. While that would have been a basis for post-conviction relief, if established by the proof , those grounds were avai lable well before the li mitations period commenced. Thus, th e petitio ner's c laims fa il to mee t the sec ond req uiremen t of Sands

.
Recently, our supreme cou rt ruled that the 1995 Post-C onviction Procedure Act, which reduced the statute of limitations to a period of one year, did not revive any ac

tion which had been barred by the previous statut e of limitations.4 See Arnold Carter v. Stat e , ____ S.W.2d ____ , No. 03-S-01-9612-CR-00117, slip op. at 6 (Tenn., at Knoxville, Sept. 8, 1997). Thus, any argument that th e new Act allowed a one-year opp ortunity for new filin gs lacks merit. See Tenn. Code Ann. § 40-30-202.
Accordingly, the j udgment is affirmed.

________________________________ Gary R. Wade, Judge CONCUR:

_____________________________ David H. Wel les, Judge

_____________________________ Jerry L. Smith, Judge