IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs June 4, 2013

JEROME WALL v. STATE OF TENNESSEE

Appeal from the Criminal Court for Shelby County

No. 9107725, 9109143 J. Robert Carter, Judge

No. W2012-01748-CCA-R3-PC - Filed October 31, 2013

Petitioner, Jerome Wall, pled guilty to robbery and aggravated robbery in August, 1992, in

the Shelby County Criminal Court. Petitioner received concurrent sentences of three years

for his robbery conviction and ten years for his aggravated robbery conviction, to be served

in the Tennessee Department of Correction. On May 18, 2012, Petitioner filed a petition for

post-conviction relief, challenging his 1992 convictions, which the trial court denied without

an evidentiary hearing. Finding no error, we affirm the judgment of the post-conviction

court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

THOMAS T. WOODALL, J., delivered the opinion of the court, in which JAMES CURWOOD

WITT, JR. and JEFFREY S. BIVINS, JJ., joined.

Jerome Wall, Pearl, Mississippi, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Meredith Devault, Assistant Attorney

General; Amy P. Weirich, District Attorney General; and Paul Goodman, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

Petitioner is presently serving a life sentence in the Mississippi Department of

Correction for his 1996 conviction for possession of marijuana. Petitioner alleges in his pro

se petition for post conviction relief that “[t]he [t]rial [c]ourt lacked [j]urisdiction to sentence

the Petitioner to concurrent sentences,” rendering his 1992 convictions and sentences void.

The record shows that Petitioner was indicted on August 6, 1991, in case number 91-07725

for robbery committed on December 21, 1990. Petitioner was indicted on September 19,

1991, in case number 91-09143 for aggravated robbery committed on May 11, 1991.
Petitioner asserts he was on bond after being arrested for the December, 1990 offense when

he committed the May, 1991 offense. Petitioner pled guilty to both charges and was

sentenced to concurrent sentences of three and ten years. Petitioner argues his sentences

should have been ordered to run consecutively. See Tennessee Rule of Criminal Procedure

32(c)(3)(C); see also Tenn. Code Ann. § 40-20-111(b). Petitioner’s sentences for those

convictions were apparently used to enhance a sentence in Mississippi to life imprisonment.

The Tennessee judgments do not show whether Petitioner was sentenced to an

effective sentence of ten years following a sentencing hearing wherein the trial court

determined the length and manner of service of the sentences or if the sentence was imposed

entirely pursuant to a negotiated plea agreement. In any event, whether the sentences could

be entirely served by an effective ten-yearsentence or an effective thirteen-yearsentence, and

with or without the statutory credits for pre-trial jail time, the sentences for the challenged

convictions would have been fully served no later than August, 2005, well prior to the filing

of this post-conviction petition. Therefore, even if this proceeding could be treated as a

habeas corpus petition, the alleged illegality of the concurrent sentencing would not entitle

Petitioner to any relief. See Summers v. State, 212 S.W.3d 251, 257 (Tenn. 2007).

The trial courtsummarily dismissed the petition for post-conviction relief, filed almost

20 years after the judgments were entered in 1992, as time-barred. The trial court also found

that Petitioner is no longer in custody, having already served his sentences in those cases, and

that any grounds for post-conviction relief have been waived or previously determined. The

order states, “This Post-Conviction Petition follows a sequence of pleadings by which

Petition[er] has sought, in vain, to set aside the 1992 convictions used to enhance his current

sentence in another state.”

The statute of limitations on a post-conviction petition begins to run from the date the

final action of the highest state appellate court to which an appeal is taken, or if no appeal

is taken, from the date on which the judgment becomes final. See Tenn. Code Ann. § 40-30-

102(a). At the time Petitioner’s convictions became final, the statute of limitations for the

filing of a petition for post-conviction relief was three years. Tenn. Code Ann. § 40-30-102

(1990) (repealed 1995). Effective May 10, 1995, the statute of limitations was shortened

from three years to one year. The Post Conviction Procedure Act of 1995 does not provide

petitioners for whom the statute of limitations had already expired any additional time in

which to file a petition for post-conviction relief. Carter v. State, 952 S.W.2d 417, 420

(Tenn. 1997). Because Petitioner’s post-conviction petition was not time-barred when the

new statute of limitations took effect, however, he would still have had one year from May

10, 1995, to file his petition under the 1995 Act. See Carothers v. State, 980 S.W.2d 215

(Tenn. Crim. App. 1997). Therefore, Petitioner’s period for filing his petition expired on

May 10, 1996.

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Under the current post-conviction statute, consideration of a petition not filed within

the statute of limitations is proper only if the claim (1) is based upon a newly established

constitutional right not recognized at the time of trial, (2) is based upon new scientific

evidence establishing actual innocence of the petitioner, or (3) the claim is based upon the

enhancement of a sentence not resulting from a guilty plea with an agreed sentence where

the enhancing sentence subsequently has been held to be invalid. Tenn. Code Ann. §

40-30-102(b).

Petitioner’s claims do not fit within any of the statutory exceptions. Furthermore, we

are unpersuaded that Petitioner’s claims are controlled by Burford, a case that arose under

the previous version of the Post-Conviction Procedure Act, which provided an exception to

preserve the right of a post-conviction petitioner to mount an otherwise untimely challenge

where strict application of the statute of limitations would deprive the petitioner of due

process of law. Burford v. State, 845 S.W.2d 204, 209-10 (Tenn. 1992).

Burford was a unique case in which the petitioner was caught in a procedural trap in

which he first had to challenge successfully his convictions in a post-conviction proceeding

in one county in order to have a justiciable claim for relief in post-conviction proceedings

in another county. Burford, 845 S.W.2d at 208. He was caught in a quandary because the

bar of the statute of limitations applicable to the latter claim was looming prior to a

determination of the former claim. Burford, 845 S.W.2d at 208. The supreme court found

the application of the statute of limitations to the latter claim violated due process in that

limited circumstance and allowed the Burford petitioner to maintain his claim

notwithstanding the statute of limitations. See Burford, 845 S.W.2d at 209-10. Burford did

not, however, give post-conviction petitioners the right to wage collateral attack on stale

convictions themselves outside the statute of limitations. Unlike Petitioner, the petitioner in

Burford filed his attack on his enhancing convictions within the time then allowed under the

Act. See generally Burford, 845 S.W.2d 204. Contrary to Burford, Petitioner seeks to

challenge not his enhanced sentence in Mississippi, over which this court has no jurisdiction,

but his enhancing Tennessee convictions. In this situation, the Burford exception is

inapplicable.

Petitioner also asserts that he has had no meaningful access to Tennessee law while

incarcerated in Mississippi. It appears from the record that Petitioner was sentenced by the

Mississippi court in September, 1996, which is subsequent to the running of the statute of

limitations. We are unpersuaded by Petitioner’s argument. The petition was filed almost 20

years after the judgments in this case became final. None of the three statutory exceptions

for untimely filing under Code section 40-30-102(b) apply to the late-filed petition. Further,

application of the statute of limitations in this case does not violate due process. See Tony

Bland v. State, No. W2002-01784-CCA-R3-PC, 2003 WL 57420 at *1 (Tenn. Crim. App.

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at Jackson, filed Jan. 6, 2003), no perm. app. filed (citing Guillermo Matiaz Juan v. State,

No. 03C01-9708-CR-00318, 1999 WL 76453 (Tenn. Crim. App. at Knoxville, filed Feb. 18,

1999), perm. app. denied (Tenn. July 12, 1999) (holding ignorance of the law does not bar

application of the post-conviction statute of limitations); and William Lynn Johnson v. State,

No. 02C01-9605-CR-00136, 1997 WL 311493 (Tenn. Crim. App. at Jackson, filed June 10,

1997), perm. app. denied (Tenn. Sept. 15, 1997) (holding that incarceration in a federal

prison without access to Tennessee legal resources does not fall within the statutory

exceptions nor the due process exception)).

Accordingly, we affirm the judgment of the trial court in dismissing this petition.

_________________________________

THOMAS T. WOODALL, JUDGE

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