# FILED
January 29, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT JA CKSON JANUA RY 1998 SESSION

MICHAEL S. H OLMES , ) ) Appellant, ) C. C. A. No. 02C01-9703-CR-00106 ) V. ) Shelby County ) STATE OF TENN ESSEE , ) Honorable Chris Cra ft, Judge ) Appellee. ) (Post-Conviction: F acilitation of a ) Felony)
FOR THE APPE LLANT: FOR THE APPELLEE: A C Wharton, Jr. John Knox Walkup Shelby County Public

Defender Attorney General & Repor ter Edward G. Thompson Kenneth W. Rucker Assistant Public Defender Assistant Attorney Gener al 616 Adams Avenue Criminal Justice Div ision Memphis, TN 38103 450 James Robertson Parkwa y Nashville, TN 37243-4351 William L. Gibbons District Attorney General Daniel Woody Assistant District A

ttorney General Criminal Justice Comple x, Suite 301 201 Poplar Avenue Memphis, TN 38103

OPINION FILED: _____________________
AFFIRMED
PAUL G. SUMM ERS, Judge

O P I N I O N-2- The Shelby County Cri minal Court dismissed the appellant Michael S. Holmes’ pet ition for pos t-convic tion relie f and he appeals . We affirm.
On June 1, 1993, the appellant pled g uilty to facilitation of a fel ony and was sentenced to five y ears imprisonment. No appeal was taken. On Septembe r 18, 1996, the ap pellant filed a petition

for post -convi ction r

elief, alleging ineffective as

sistance of counsel. Finding that the statute of limitations had expired, the trial c

ourt dismissed the petition upon preliminary consid eration pursuant to Tennessee Code Annotated § 40- 30-206(b) (Supp. 1996).
The trial court appointed the publ ic defender’s office to represent the appellant on appeal. The appellant’s attorney argues that th e trial court was without jurisdiction to appoint counsel because the appointme nt was made more than thirty days after the trial court dismisse d the petition. The state does not address the issue. This conc ern does not affect the validity of the appeal. The appellant properly per

fected his appeal to this Court

. On appeal, the appellant argues that the trial court erred in dismissing his petition without appointi ng counsel and conducting a hearing. Tennessee Code Annotated §§ 40-30-206(a) & (b) provide that a trial court shall dismiss a postconviction petition upon p reliminary consider ation if it plainly appear s from the record that the petition w as not filed within the ti me set forth in the statute of limitations. Preliminar

y consideration is a r

eview of the record by

the court. Tenn. Code Ann. § 40-30-206(a), - (b). Appointment of counsel and a hear ing 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-1 W 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. Thi s has no beari ng on the case’s outcome. -3- conviction relief w

ithin one year of the date of the final action of the highest state appellate court to whic h 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 ex ceptions to the one-year s tatute of limitations; however, none of them are applicable to the pr esent case. See Tenn. Code Ann. § 40-30-202(b) (S upp. 1996).
The appellant also argues that the application of the statute of limi tations to the facts of his case viola te his right to due proc

ess because he has been deprived of a reasonable opportunity to have his post -conviction claim hear

d. We find nothing in the record to establish that the appellant has been denied a reasonable opportunity to ha ve 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 statut e of limitations to his case is unconstitutional. The facts i n the case at bar are clearl y distinguishable from the facts in Watkins , Burford , and Germany . Nothing of a constitutional magnitude prevented the appell ant from timely filing his petition.

The trial court’s dismis

sal of the petition is affirmed.

______________________________ PAUL G. SUMMERS, Ju dge
CONCUR:-4- __________________________ DAVID G. HAYES, Jud ge

__________________________ JOE G. RILEY, Judge