FILED

January 29, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

JANUARY 1998 SESSION

MICHAEL S. HOLMES, )

)

Appellant, ) C. C. A. No. 02C01-9703-CR-00106

)

V. ) Shelby County

)

STATE OF TENNESSEE, ) Honorable Chris Craft, Judge

)

Appellee. ) (Post-Conviction: Facilitation of a 

) Felony)

FOR THE APPELLANT: FOR THE APPELLEE:

A C Wharton, Jr. John Knox Walkup

Shelby County Public Defender Attorney General & Reporter

Edward G. Thompson Kenneth W. Rucker

Assistant Public Defender Assistant Attorney General

616 Adams Avenue Criminal Justice Division

Memphis, TN 38103 450 James Robertson Parkway

Nashville, TN 37243-4351

William L. Gibbons

District Attorney General

Daniel Woody

Assistant District Attorney General

Criminal Justice Complex, Suite 301

201 Poplar Avenue

Memphis, TN 38103

OPINION FILED: _____________________

AFFIRMED

PAUL G. SUMMERS,

Judge

O P I N I O N
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The Shelby County Criminal Court dismissed the appellant Michael S.

Holmes’ petition for post-conviction relief and he appeals. We affirm.

On June 1, 1993, the appellant pled guilty to facilitation of a felony and

was sentenced to five years imprisonment. No appeal was taken. On

September 18, 1996, the appellant filed a petition for post-conviction relief,

alleging ineffective assistance of counsel. Finding that the statute of limitations

had expired, the trial court dismissed the petition upon preliminary consideration

pursuant to Tennessee Code Annotated § 40-30-206(b) (Supp. 1996). 

The trial court appointed the public defender’s office to represent the

appellant on appeal. The appellant’s attorney argues that the trial court was

without jurisdiction to appoint counsel because the appointment was made more

than thirty days after the trial court dismissed the petition. The state does not

address the issue. This concern does not affect the validity of the appeal. The

appellant properly perfected his appeal to this Court. 

On appeal, the appellant argues that the trial court erred in dismissing his

petition without appointing counsel and conducting a hearing. Tennessee Code

Annotated §§ 40-30-206(a) & (b) provide that a trial court shall dismiss a postconviction petition upon preliminary consideration if it plainly appears from the

record that the petition was not filed within the time set forth in the statute of

limitations. Preliminary consideration is a review of the record by the court.

Tenn. Code Ann. § 40-30-206(a), -(b). Appointment of counsel and a hearing

are not required.

 The appellant’s petition is clearly barred by the statute of limitations. A

person in custody under a sentence of a court of this state must petition for post-
1W e rea lize the appe llant’s c onvic tion or igina lly fell un der th e thre e-yea r limitatio n wh ich ch ange d to on e year in

May 1995. This has no bearing on the case’s outcome.

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conviction relief within one 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

year of the date on which judgment became final.1

 The Post-Conviction

Procedure Act provides several limited exceptions to the one-year statute of

limitations; however, none of them are applicable to the present case. See

Tenn. Code Ann. § 40-30-202(b) (Supp. 1996). 

The appellant also argues that the application of the statute of limitations

to the facts of his case violate his right to due process because he has been

deprived of a reasonable opportunity to have his post-conviction claim heard. 

We find nothing in the record to establish that the appellant has been denied a

reasonable opportunity to have his claims heard. See Watkins v. State, 903

S.W.2d 302 (Tenn. 1995); Burford v. State, 845 S.W.2d 204 (Tenn. 1992). The

appellant also cites People v. Germany, 674 P.2d 345 (Colo. 1983) as

supporting his position that the application of the statute of limitations to his case

is unconstitutional. The facts in the case at bar are clearly distinguishable from

the facts in Watkins, Burford, and Germany. Nothing of a constitutional

magnitude prevented the appellant from timely filing his petition. 

The trial court’s dismissal of the petition is affirmed.

______________________________

PAUL G. SUMMERS, Judge

CONCUR:
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__________________________

DAVID G. HAYES, Judge

__________________________

JOE G. RILEY, Judge