1 

# FILED

November 10, 1999 Cecil Crowson, Jr. Appellate Court Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT KNOXVILLE

SEPTEMBER 1999 SESSION

MARK SHANE GRIFFIS, * C.C.A. No. 03C01-9811-CR-00397

Appellant, * ROANE COUN TY VS. * Hon. E. Eugene E blen, Judge STATE OF TENNESSEE, * (Post-Conviction)

Appellee. *

For Appellant: For Appellee: Joe Walker Paul G. Summers Public Defender Attorney General & Repor ter Ninth Judicial District P.O. Box 334 Todd R. Kelley Harriman, TN 37748-0334 Assistant Attorney Gener al 425 Fifth Avenue North Alfred Lee Hathcock, Jr. 2d Floor, Cordell Hul l Building Assistant Public Defender Nashv ille, TN 37243-0493 Ninth Judicial District P.O. Box 334 Charles Ha wk Harriman, TN 37748-0334 District Attorney General Ninth Judicial District Walter Johnson P.O. Box 703 Assistant Public Defender Kingst on, TN 37763-0703 Ninth Judicial District P.O. Box 334 D. Roger Delp Harriman, TN 37748-0334 Assistant District A ttorney General Ninth Judicial District P.O. Box 703 Kingston, TN 37763- 0703
OPINION FILED:__________________

AFFIRMED

GARY R. WADE, PRESIDING JUDGE OPINION The petit ioner, Mark Sh ane Gri ffis, app eals the trial c ourt’s denial of post-conviction reli ef. The single issue presented for review is w hether the petition was barred by the statute of limitations.2 We affirm the judgment of the trial court.

On March 15, 1995, the petitione r entered a plea of guilt to t he sale of .5 gram of cocaine. On August 1, 1995, the petitioner recei ved a sentence of eight years in a community corrections program. He did not appeal. Later, the trial court revoked the community cor rections sentence and ordered the petitioner to serve the term in the Department of Correc tions. The order was uphel d on direct appeal. State v. Mark Griffis , No. 03C01-9708-CR-00358 ( Tenn. Crim. App., at Knoxv ille, Oct. 13, 1998.). Two year s and four months after the imposition o f sentence, the petitioner filed this petiti on for post-conviction r elief alleging that the pr osecution withheld exculpator

y evidence, that his g uilty plea was nei ther knowingly nor voluntarily entere

d, and that his counsel was ineffective. The trial cour t dismissed the petition on the basis that i t was barred by the s

tatute of limitations. 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, 20 8 (Tenn. 1992).

Under the Post-Convic tion Procedure Act of 1995, a petit ion must be filed “within one (1) year of the date of the final action of the highest 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 be came final, or consideration of suc h petition shall be barred.” Tenn. Code Ann. § 40-30- 202(a). The statute provide s that the limitations period “shall not be toll ed for any reason, including any tolling or sav

ing provision otherwise available at law or equity.” Id. Thus, this petition, filed well past limitations of the statute, is barred.

There are exceptions. If the c laim is based upon a new r ule of constitutional law, upon new scientific evi dence showing innocence, or upon a sentence that was enhanced becaus e of convictions that have subsequently been found to be illegal, then the peti tioner has recourse. Tenn. C ode Ann. § 40-30- 202(b).3 Neither ineffective assis tance of counsel, the entry of an i nvalid guilty plea, nor withholding

exculpatory evi dence qualify as new c onstitutional grounds for relief. See Strickland v. Washington , 466 U.S. 668 (1984); Boykin v . Alabama , 395 U.S. 238 (1969). Thus, the all egations in the petition do not satisfy any except ion to the statute of limitations. Moreover, the application of th e statute of limitations in this instance does not run afoul of due process princip les.

In Burford v. State , 845 S.W.2d 204, 208 (Tenn. 1992), our supreme court held that in certain situations the application o f the statute of limitations in a post-conviction procee ding might violate constitutional due process. In determining whether th ere has been s uch a viol ation, the es sential qu estion is w

hether the ti me period allowed by l aw provides the petit ioner with a fair and rea sonable opportunity to file suit. Id. In Burford , the petitioner could not hav e filed within the three- year limitation absent a deter

mination on hi s prior pos t-convic tion petiti on. Our supr

eme court ruled that Burford w as “caught in a procedura l trap and unable to initiate litigation ... despite the approach of the three-year limitation.” Id. There was no such trap here.

In Sands v. State , 903 S.W.2d 297 (Te nn. 1995), our supreme court further defined how to apply t he Burford test. The requirements are to:

1) determine when the limitations period would normally have begun to run; 2) determine whether the grounds for relief actually arose after th e limitat ions peri od would n ormally ha ve commenced; and 3) if the grounds are “lat er-arising,” deter

mine if, under the facts of the case, a strict appl ication of the limitations period would effectively deny the petitioner a reasonable opportunity to present the c laim. In making this final determination, courts should carefully weigh t he petitioner’s liberty

interest in “collater

ally attacking constitutional violati ons occurring during the conviction process,” against the s tate’s interest in prev

enting the litigation of “stale and fra udulent 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 of4 limitation s for this pe

titioner’s convicti ons expire

d in 1996. Bec

ause these cl aims have always been av

ailable to the petitioner, no ne of the grounds fit within the exception to the rule. The tr ial court did not err by

dismissing the post-c

onviction petition.

Accordingly, the j udgment is affirmed.

Gary R. Wade, Presiding Judge CONCUR:

Jerry L. Smith, Jud ge

James Curwood W itt, Jr., Judge