1 In var ious porti ons of t he recor d, the petition er’s last n am e has been spelled “M atthew s.” Ho we ver, in his pos t-con viction petition , the pe titioner spells h is last nam e “M athew s.” 

### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON Assigned on

Briefs J une 13, 2001 MARV IN ANT HONY MATHEWS 1 

### v. STATE OF TEN NESSEE Appeal as of Right from the Criminal Court for Shelby County

No. P-21117 L. T. Lafferty, Judge

No. W2000-01893-CCA-R3-PC - Filed February 8, 2002

The petitione

r, Marvin Anthony M athews, is currently serving a lifesentence as an habitual criminal as a result of a larceny conviction. He filed for post-conviction relief, which petition the postcon viction court dismissed because of its untimeliness. The petitioner now appeals this ruling, arguing that the post-conviction court erred in finding the petition to be time-barred because the petitioner is serving an illegal sentence. Upon review of the record and the parties’ briefs, we

affirm the judgment of the post-conviction court. Tenn. R. App.P. 3 Appeal as of Right ; Judgment

of the Cr

iminal Cour

t is Affir med.
N ORMA M C G EE O GLE , J., delivered the op i nion of the court, in which J OE G. R ILEY , J., and C ORNELI A C LARK , S P
. J., joined.
Alicia A. Howard, Memphis, Tennesse e, for th e appell ant, Mar

vin Anthon

y Mathew s. Michael E. Moore, Solicitor General; Jennifer L. Smith, Assistant Attorney General; William L. Gibbons, District A

ttorney G eneral ; and Scott

D. Gordon, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Factua

l Background The petitione

r is curr ently bef ore this c ourt, yet

again, to

complain

about his conviction of and sentence for grand larceny as an habitual criminal. See Marvin Anthony Matthews v. State , No. 16, 1990 Tenn. Crim. App. LEXIS 31, at **1-4 (Jackson, January 17, 1990) (detailing the facts underlying

the petiti oner’s c onviction ). To aid in our ana lysis of the

is sue before us, we will highlight a

few of th

e more imp ortant da

tes in the protracted history of the petitioner’s conviction.-2- On August 14, 1987, the petitioner was arrested for grand lar ceny. Id. at *2. A jury convictedthe pet itioner o f grand larceny and further found him to be a n habitual criminal on December

13, 1988. Marvin Matthews v. State , No. W1999-00833-CCA-R3-PC, 2001 Tenn. Crim. App. LEXIS 287, at *1 (Jackson, April 17, 2001). On direct appeal, on January 17, 1990, this court affirmed the trial court’s judgment, and, on May 14, 1990, our supreme court denied the petitioner’s application for permission to appeal. Id. at *2. Subs equently , the petitioner fi led numerous postconviction petitions. In appellate proceedings relating to one of these pe titions, this court issued an opinion, on February 24, 1993, reversing eight of the thirteen prior fe lony convictions used by the State to prove the petitioner’s habitual criminal status. Marvin A. Matthews v. State , No. 02C01- 9204-CR-00091, 1993 Tenn. Crim. App. LEXIS 115, at *4 (Jacks on, February 24, 1993). Our supreme court

denied th e petitioner’s ap

plication for per mission to a

ppeal thi s decision on June 3, 1993. Matthews , No. W1999-00833-CCA-R3-PC, 2001 Tenn. Crim. App. LEXIS 287, at *2.

The petitioner filed his current petition for post-conviction relief on March 22, 1999, nearly nine years after

the supreme court denied the petitioner’s application for permission to appeal in the petitioner’s direct appeal. The post-conviction court dismissed the petition, finding that, whil e “[t]he Post-Conviction Procedure Act provides several limited exceptions to the one year sta tute of limitations , . . . none of them are applicable to the present ca se. . . . The petition in this case was filed well beyond the applicable statute of limitations, and . . . , therefore, is untimely.” The petitioner now appeals this ruling. II. Analysis

We begin by

recognizing that post-conviction r elief “sha ll be granted when the conviction or sentenceis void or voidable because of the abridgment of a ny right g uaranteed by

the Constitution of Tennessee or the Constitution of the United States.” Tenn. Code Ann. § 40-30-203 (1997). However, we further note that a one -year statute of limitations generally applies to the right to file a petition for post-conviction relief. See Tenn. Code Ann. § 40-30-202(a) (1997); se e also Williams v. State , 44 S.W.3d 464, 468 ( Tenn. 200 1). Bec ause the final action in

the petiti oner’s c ase occurred prior to Ma

y 10 , 1995, the

petitione r had one ye ar from t

hat date to file a petition for postconviction relief. See Williams , 44 S.W.3d at 468 (stating “post-conviction claims [must] be filed within one year fr

om the dat

e of the final action or

within one

ye ar from t

he enactment of [the PostConviction Procedure Act]”).

Neverth eless, the petitioner

argues that, because he

is serving an illeg al sente

nce, this court ma y r eview a nd correct such se

ntence. Specific ally , the petitioner c ontends th at [t]he habitu al offe

nder enha ncem ent w as in e

rror beca use th e sta tu[t]e required at least three prior

convictions. [ See Tenn. Code Ann. § 39- 1-801 (1988 Repl.)]. The State, at trial, relied on fi ve Division 8 convictions to obtain the habitual offender enhancement. However, three of the five convictions were set aside by the

Court of Criminal Appeals , leaving only

two convictions to be considered for enhancing purposes
.-3- We note that

there is nothing in the record to indicate that the State relied on only five of the petitioner’s prior felonies in seekin g the en hanceme nt of the p etitioner ’s sente nce due to his habitual offender status. Notably , in our opinion regardingthe pe titioner’ s direct a ppeal of his conviction, this court repeatedly commented that the State presented evidence at trial “tha t the [petitioner] had thirteen prior felony convictions which unque stionably established his status as an habitual criminal.” Matthews , No. 16, 1990 Tenn. Crim. App. LEXI S 31, at *3. Moreove r, in Matthews , No. 02C01-9204-CR-00091, 1993 Tenn. Crim. App. LEXIS 115, at ** 2-4, this court concluded that eight of

the thirteen convictions used to establish the petitioner’s habitual criminal status must be se

t aside; ho wever, we obser ved that t he petitio ner conc eded th e five remaining convictions were valid. We further observed, in a later opinion, that “a post-conviction petitioner i s not entitle d to relief from habitual criminality if three or more qualify

ing convictions remain. Here, the petitioner has five such predicate offenses.” Matthews , No. W199 9-00833- CCA-R3-PC, 2001 Tenn. Crim. App. LEXIS 287, at *7 (citations omitted). We now conclude that the issue before this court has bee n previously d etermined by this court and by the petitioner’s concession to the validity of the five remaining convictions. See id. at *6. “A matter previously determined is not a proper subject for post-conviction relief.” Forrest v. State , 53 5 S.W.2d 16 6, 167 (Te nn. Crim. App. 1976). M oreov er, because we conclude that the pe titioner is not suffering under an illegal sentence and bec ause his c laims do not fall within any exceptions to the statute of limitations, we agree that the post-conviction court correctly determined that the petitioner’s instant claim forpostconviction relief is untimely.

The petitioner further claims, in conclusory statements, that the elements proven at trial do not support the charge of larceny , the tr ial court failed to instruct the juryas to lesserincluded offenses, and a lif e sentence is excessive for a conviction for a prope rty crime. Ini ti al ly, we admonish that, because these allegations are unsupported by arg ument, citation to the record, or citation to authority, these issues are deemed waived. See Tenn. R. A pp. P. 27(a

)(7); Wilcoxson v. State , 22 S.W.3d 289 , 317 (Te nn. Crim . App. 1999). Moreover, such issues should have been addressed on direc t appeal , and may not be raise d now in this post-conviction claim. See Tenn. Code Ann. § 40-30-210(f) (1997) (“There is a rebuttable presumption that a g round for relief

not raised before a court of competent jurisdiction in which the ground could have been pre sented is waived.”); see also Randy

Hicks v. St

ate , No. 03C01-9608-CR-00296, 1998 Tenn. Crim. App. LEXI S 253, at **9-10 (Knoxville, March 3, 1998).
III. Conclusion

Finding no reversible error, we affirm the judgment of the post-conviction court.

___________________________________ NORMA McGEE OGLE, JUDGE