# FILED
July 8, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COUR T OF CRIMIN AL APPEALS OF TENN ESSEE AT JACKSON MAY 1997 SESSI ON

ROBERT D. JEFFERSON, * C.C.A. # 02C0 1-9608-CR- 00257

Appellant, * SHELBY COUN TY VS. * Hon. John P. Co lton, Jr., J udge STATE OF TENNESSEE, * (Post-Conv iction)

Appellee. *
For Appellant : For Appellee: Robert D. J efferson Charles W. Burson Pro Se Attorney Gen eral & Repor ter No. 13936-076 Federal Cor rectional Institute W illiam David Bridgers P.O. Box 34550 Assistant Att orney Gener al Memphis, TN 38134- 0550 450 James Roberts on Parkway Nashvil le, TN 37243-0493 Lee V. Coffee Asst. Dist rict Attor ney General Criminal J ustice Center 201 Poplar Avenue, Suite 301 Memphis, TN 38103
OPINION FILE D:_____________________

AFFIRMED

PER CURIAM2 OPINION
The petitioner, R obert D. Jefferson, appeals the tri al court's denial of his petition for post-conv iction rel ief. The issue presented for rev iew is whether the trial court correctly dismissed the petition without an evidentiary hearing on the basis that it wa s barred by

the statute of li mitations. We affirm the judgment of the t rial court.
This post-conv iction petit ion, filed March 5, 1996, chall enges the validity of seven separate convic tions occurr ing betw een 1985 and 1990. The petitioner contends the se sentences are being used to en hance an otherwise unrelated sentence im posed by federal court. He alleges that his guilty pleas were not knowing ly and voluntarily made. The trial court summaril y dismiss ed the petition as being ti me-barred.

In this appeal o f right, the pe titioner makes several arguments as t o why hi s petition sho uld not be barred by the stat ute of limitations . First, he argues the statute of limi tations does not apply becaus e he is in custody of the federal rather than st ate gover nment. Our cour t, however, has prev iously hel d there is no distinction under the post-conviction act between a prisoner i n federal custody and one in state custody. Passarella v . State , 891 S. W.2d 619, 622- 23 (Tenn . Cri m. App. 1994). Als o, this court has upheld appli cation of the statut e of limitations against a federal prisoner. See William Lynn Johnson v . State , No. 02C01-960 5- CR-00136, slip op. at 8 (Tenn. Crim. Ap p., at Jackson, June 10, 19 97). W e are bound by those r ulings.

The petitioner al so contends that t he application of the statute of3 limitations violates the ex post fact o provisi ons of both the state an d federal constitutions . This court, however , has previ ously rej ected this same a rgument. See State v. Ri chard S. Butler , No. 1338, sl ip op. at 3 (Tenn. Crim. App., at Knoxvil le, May 1 9, 1992). See also William Lynn Johnson , slip op. at 5.

Next, the petitioner argues that the new Post-Conviction Procedu re Act creates a one- year w indow in w hich any pet itioner may file regar

dless of the time of the conviction. Effective May 10, 1995, the new Post-Conviction Procedure Act replaced the pr ior act in its entiret y. See 1995 Tenn. Pub. Act 207, §§ 1 and 3. Because this petition was filed in March of 1996, the new act applies. The m ost recent legi slation repl aced a three-year with a one-year limitation:

(a) ...[A] pe rson in cust ody under a s entence of a court of this state must

petition for pos t-convic tion relief under this part w ithin one (1) year of the dateof the final action of the highest state app ellate court to which an appeal is taken or, if no appea l is taken, within one(1) year of the date on whic h the judgment became final, or consideration of such petition shall be barr ed. The statute of limitat ions shall n ot be tolled for an y reason... . (b) No cour

t shall have jurisdic

tion to consid er a petition filed after such time unless: (1) The claim in the petitio n is based upon a final ruling of an ap pellate court establishin g a constit utional right that was not recognize d as exist ing at the ti me of trial, if retrospective application of that right i s required. Such petition mus t be filed wi thin one (1) y ear of the ruling of the highest stat e appellate cour t or the Unit ed States [S]upreme [ C]ourt establ ishing a constitutional right that was not recognize d as exist ing at the ti me of trial; (2) The claim in the petitio n is based upon new scientific evidence establishing that such petitioner is actually innocent of the offense or offenses for which the petitioner was convicted; or (3) The claim asserted in t he petition seek s relief from a sen tenc e that w as en hanc ed be caus e of a previous conviction and such conviction in the case in which the claim is as serted was not a guilt

y plea w ith an4 agreed sentenc e, and the prev ious convi ction has subsequently

been held to be i nvalid, i n which case the petition must be filed withi n one (1) year of the finality of the ruling holding the previous convicti on to be inval id. Tenn. Code Ann. § 4 0-30-202 (Supp. 1996 ).

Because the conv ictions in this case beca me final in yea rs rangi ng from 1985 to 1990, this petition appear

s to have been barred not only by the cur rent one-year statute of limitati ons but also the former three-year statute. M oreover, t he grounds rai sed in the petit ion and on appeal do not appear to fall within any of the exceptions set out in Tenn. C ode Ann. § 40-30-20 2(b)(1), ( 2), or (3) (Supp. 1996).

In Arnold Cart er v. Stat e , No. 0 3C01- 9509-C C-002 70 (Tenn . Cri m. App., at Knoxv ille, July 11, 1996), appeal granted , (Tenn., Dec. 2 , 1996), a panel of this court, by a two-to-one marg in, ruled that the literal terms of the new statute created a one-year window , starting on May 10, 1995, during which post -convic tion petitions may

be filed, notw ithstanding the date of the judg ment: This act shall take eff ect upon becoming a law, the public welfare req uiring i t and shall g overn all petitions for po stconvicti on relief filed after this date, and an y motions which may

be filed after this

date to reopen peti tions for post-convi ction reli ef which were concluded pr ior to the effective date of this

act. Notwithstanding any other provision of this act to th e contra ry, any perso n having a ground for rel ief recogniz ed under this ac t shall have at least one (1) year from the eff ective date of this act to file a petition or a motion to reopen u nder this act

. 1995 Tenn. Pub . Act 207, § 3 (emphasis adde d).

This majority

found no ambiguiti es in the termi nology of the statute despite the reas onable argument by the diss ent to the contra ry. In Carter , our supreme court g ranted the state' s applicatio n for permissio n to appeal. While no5 decision has yet been filed, other panels of this court have adopt ed the dissenti ng view in Carter

and have held that the new a ct did not create a new one- year fili ng period. See, e. g. , Ronald Albert Brummitt v. State , No. 03C01-951 2-CC-00415 (Tenn. Crim. Ap p., at Knoxv ille, Mar . 11, 1997); Jimmy Earl Lofton v. State , No. 02C01-9603-CR -00073 (Tenn. Cr im. App., at Jac kson, Mar. 7 , 1997); Roy Ba rnet t v. State , No. 03C01-9512-CV-00394 (Tenn. Crim. App., at Knoxville, Feb. 20, 1997 ); Stephen Koprowski v. S tate , No. 03C01-951 1-CC-00365 (Tenn. Crim. App., at Knoxvil le, Jan. 28, 1997) ; Johnny L. Butl er v. Stat e , No. 02C01-950 9-CR-00289 (Tenn. Crim. Ap p., at Jackson, Dec. 2, 1996). A majority of this panel now

adheres to the holding in these subseq uent cases. Thus, treating th e petition as on e for post-convi ction reli ef, this claim i s barred by the statute of li mitations under the new Act.
The petitioner next argues that the statute of limitations do es not apply to guilty proceedings

unless an acti on is filed in the highest state appellate court. Our court has

routinely

held that the st atute of limitati ons on guilt y pleas commences "when t he judgment of conv iction [is ] entered." Shar on An n Con ner v. State , No. 03C01-950 9-CC-00279, slip op. at 2 (Tenn. Crim. Ap p., at Knoxv ille, June 3, 1996). See also William Lynn Johnson , slip op. at 9.

The petitioner al so argues t hat he should be excused from comply ing with the statute of limitati ons because federal prisons do not supply pr isoners w ith copies of Tenn. Code Ann . Our court has held "ig norance of the ex istence of the statute of limitat ions ... does not toll the r unning of the stat ute of limitations ." State v. Phill ips , 904 S.W .2d 123, 124 (Tenn . Crim. App. 1995). The petitio ner also asserts that the federal system's failure to supply copies of the Code amounts to state action which has caused him not to present his claim sooner. He argues he is6 entitled to the benef it of Tenn. Code An n. § 40-30-206(g) (2) (Supp. 1996):

A ground for relief is waived if the pet itioner pers onally or through an atto rney failed t o present it for determination in any proceeding before a court of competent jurisdict ion in whi ch the ground could have bee n presented unless : the failure to present the g round was the result of state action in v iolation of the federal or state constitution.
Initially , we note that

the above-q uoted portion cr eates a limited exception to

the waiver doctrine and has no effect on the appl ication of the statute of limitations. Moreover , our court ha s recently rejected thi s very

argument. William Lynn Johnson , slip op. at 6-7.

The petitioner al so argues he is entitled to relief under the principl es announced in State v. Fr azier , 784 S.W.2d 927 (Tenn. 1990); State v . Newsome , 778 S.W.2d 34 (Tenn. 1989); and State v. McClintock , 732 S.W.2d 268 (Tenn. 1987). Frazier

held that Boykin was not to be applied retr ospectivel y and that Mackey vi olat ions

that exc eede d themand atesof Boykin are not subjec t to revi ew during a post-convic

tion proceeding

. Frazier , 784 S.W.2d at 928. News ome held that the harmless

error rul e applies to Mackey violati ons. News ome , 778 S.W.2d at 38. Accordingly, neither Frazier nor News ome created a new constitutiona l right to be applied retr

oactively . We also note that the plain l anguage of the McClintock opinion holds t hat it only applies to l itigants a lready i n the "pipeline." McClintock , 732 S.W.2d at 274. None of these cases afford the petitioner any reli ef.

The appellant also argues that t he application of the statute of limitations to his case deni es him due proces s of law and t hat the post-conv iction court erred when it di d not find an exc eption to the stat ute of limitations in his case

. In Burford v. St ate , 845 S.W.2d 204 (Tenn.1992), our supreme court carved out a7 narrow ex

ception to the the n three-ye ar statute of li mitations. Bur ford had been sentenced as a habi tual crimina l to a term of li fe imprisonment based upon five pri or robbery convictions

. Id. at 205. He filed a timely p ost-convi ction petiti on, allegi ng that certain of his five prior robbery convictions were constitutionally infirm be cause he had not been ad vised of his right against self-incrimination bef ore entering his plea; he wa s granted post-convic tion relief from th ese convic tions. Id. Later, after the three-year statute of li mitations had ex pired, Burford fil ed a petition to set aside the finding of habit ual criminal ity on the b asis that there was no l onger a sufficien t number of prior felony

convicti ons to quali fy him for the enhanc ed punishment. Id. at 206. Our supreme court ruled th at the statute of limita tions, while generally compliant with constitutional due pro cess, violated Burford's specific du e process rights: If consideration of the petition is barred, Burfor

d will be forced to serve a persistent offender sentence that was enhanced by previous conv ictions that no longer s tand. As a re sult , Bur for d will b e fo rced to se rve an exces sive sentence in v iolation of his rights unde r the Eight h Amendment to the U.S. Constitution, and ArticleI, § 16 of the Tenne ssee Constitution, which, by definition, are fundamental rights

entitled to hei ghtened protect ion. Id. at 209.

In Sands v. Stat e , 903 S.W .2d 297 (Tenn.19 95), our supreme court further defined how

to apply th e Burford test. A cour t must: (1) determine when the limitations period would normally have begun t o run; (2) determine wh ether the gr ounds for relief actually arose afte r the limitations period would normally have commenced; and (3) if the grounds are "later aris ing," determi ne if, under the facts of the case, a strict application of the limitat ions period would effectively deny the petit ioner a reason able opportunity to present the claim. In making this final determinati on, courts should carefully weigh the petitioner's liberty interest in "collaterall y attacki ng constitut ional vi olations occur ring during the conviction process," against the State 's interest in preventing the litig ation of "stale and fraudulent claims ."1 Th e thre e-yea r statu te of lim itations was pas sed in 198 6. 8 Sands , 903 S. W .2d at 3 01 (citat ions om itted) (qu oting Burford , 845 S.W.2d at 207, 208).
By the use of thes e guidelines , we have first determi ned that the statute of limitat ions for this p etitioner's convicti ons expired in the year s between 1989 1 and 1993. The pet itioner's argument fails at the seco nd step. He argues his pleas were involuntar

y. The rig ht to the vol untariness of a g uilty pl ea was established well before petiti oner's judg ments were e ntered. See , e.g. , Boyki n v. Alabama , 395 U.S. 238 ( 1969). Thus, he has not establish ed that a new constitutional right ar

ose after his con victions became final or after

his statute of limitations expired. To the extent the pe titioner argues his pleas are invalid because he was not adv ised that the co nviction could be used to e nhance a subsequ ent punishment, that por

tion of the advi ce litany is not consti tutionally

required. Our supreme court has

ruled that the "advice [that the convic

tion may be us ed to enhance a future sentenc e] ... is not based upon any constitutional provisi on, federal or state... [an d] such omissi ons have no v alidity on the ... post- convicti on proceeding." State v. Prince , 781 S.W .2d 846, 853 (Tenn . 1989).9 We therefore affirm the judgment of the tri al court. PER CURIAM Joe B. Jones, Pr

esiding Ju dge Gary R. W ade, Ju dge John H. P eay, Judge