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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

ANWAR PROBY v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. 98-02267 John T. Fowlkes, Judge

No. W2008-00700-CCA-R3-PC - Filed October 27, 2008

The petitioner, Anwar Proby, appeals the Shelby County Criminal Court’s dismissal of his petition

for post-conviction relief as time-barred. On appeal, the petitioner characterizes his petition as a

motion to reopen and argues that it was timely filed because it was filed within one year of our

supreme court’s holding in State v. Gomez, 239 S.W.3d 733 (Tenn. 2007) (“Gomez II), which the

petitioner claims announced a new rule of law that is entitled to retroactive application. The State

has filed a motion requesting that this court affirm the post-conviction court’s dismissal pursuant to

Rule 20 of the Rules of the Court of Criminal Appeals. Review of the record indicates that the

petition in this case was not a motion to reopen but, rather, the first petition for post-conviction relief

filed in this case. Because the petitioner has failed to establish that the petition was timely filed or

that a recognized exception to the rule applies, we grant the State’s motion and affirm the judgment

of the Shelby County Criminal Court. 

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed Pursuant to Rule 20, Rules of

the Court of Criminal Appeals

JOHN EVERETT WILLIAMS,J., delivered the opinion of the court, in which ALAN E. GLENN and J.C.

MCLIN, JJ. joined.

Anwar Proby, Whiteville, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General & Reporter, and Matthew Bryant Haskell, Assistant

Attorney General, for the appellee, the State of Tennessee.

MEMORANDUM OPINION

While the underlying facts supporting the convictions in the petitioner’s three cases are not

evident from the record before us, it is established that the petitioner was convicted on July 11, 2001,
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of three Class A felonies, one count of facilitation to commit first degree murder and two counts of

especially aggravated kidnapping. He was subsequently sentenced to an effective fifteen-year

sentence, to be served as a violent offender. Almost seven years later, on February 18, 2008, the

petitioner filed a pro se “Petition for Post-Conviction Relief,” in which he alleged that he was denied

his right to the effective assistance of counsel, that he was convicted while incompetent, and that his

sentence was not consistent with the Tennessee Supreme Court’s decision in Gomez II. 

According to the petition, the petitioner did not file a direct appeal, and the petition was the

first post-conviction petition filed in the case. However, in his Memorandum of Law in Support of

Motion for Post-Conviction, the petitioner referred to his petition as a “Motion to Reopen PostConviction Petition” and stated he was entitled to relief pursuant to Tennessee Code Annotated

section 40-30-117(a)(1). The petitioner based this contention on his assertion that Gomez II

announced a new rule of constitutional law not recognized at the time of his convictions. The postconviction court dismissed the petition as untimely on February 22, 2008. 

On appeal, the petitioner asserts that the post-conviction court erred in dismissing his petition

as time-barred. Specifically, he contends that the petition was timely, as it was actually a “Petition

to Reopen Post-Conviction” filed pursuant to Tennessee Code Annotated section 40-30-117(a)(1),

which provided a statute of limitations of one year from the date the new constitutional rule of law

was announced. Gomez II, which the petitioner relies upon, was filed October 9, 2007, and he filed

the instant petition within one year from that date. 

However, the petitioner’s assertion that the instant petition be treated as a motion to reopen

is misplaced. Tennessee Code Annotated section 40-30-117 provides that:

(a) A petitioner may file a motion in the trial court to reopen the first post-conviction

petition only if the following applies:

(1) The claim in the motion is based upon a final ruling of an appellate

court establishing a constitutional right that was not recognized as

existing at the time of trial, if retroactive application of that right is

required. . . . 

T.C.A. § 40-30-117(a)(1) (2006). Application of this statute, however, presupposes the filing of a

prior timely petition for post-conviction relief. The record does not establish that a prior petition was

ever filed in this case. The petitioner himself acknowledges that the instant petition was the first

petition filed seeking post-conviction relief, and we find nothing in the record of the case or the

records of this court which indicates that a prior petition was filed. Thus, the petition filed must be

treated as a petition seeking post-conviction relief. 

Pursuant to Tennessee Code Annotated section 40-30-102, a petition for post-conviction

relief must be filed within one year of the final action of the highest state appellate court to which

an appeal is taken, or, if no appeal is taken, within one year of the date on which the judgment

became final or consideration of the petition is barred. T.C.A. § 40-30-102(a) (2006). A post-
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conviction court does not have jurisdiction to consider a petition filed outside the one-year statute

of limitations unless: (1) the claim is based on a final appellate court ruling establishing a

constitutional right not recognized at the time of trial but given retroactive effect by the appellate

court; (2) the claim is based upon new scientific evidence establishing that the petitioner is actually

innocent; or (3) the claim is based upon sentences that were enhanced because of a previous

conviction and the previous conviction was subsequently found to be illegal. Id. at (b)(1)-(3). 

In this case, as no direct appeal was filed, the judgments of conviction became final thirty

days after they were entered on July 11, 2001. Thus, the petitioner had until August 10, 2002, to file

a petition for post-conviction relief, unless one of the recognized exceptions is established. As an

aside, we note that, even if the petitioner were able to establish the existence of a recognized

exception to the statute of limitations, only the issue giving rise to the exception, here the sentencing

issue discussed in Gomez II, would have been reviewable. The remaining substantive issues raised

bythe petitioner,such as ineffective assistance of counsel, would have remained barred bythe statute

of limitations.

 

The only exception which is potentially applicable in this case is the new rule of

constitutional law, which the petitioner does allege pursuant to section 40-30-117. However,

contrary to the petitioner’s contention, the rule in Gomez II is not a new rule but rather a clarification

of the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000). See Gomez

v. State, 163 S.W.3d 632, 648-51 (Tenn. 2005) (“Gomez I”). Because the constitutional right in

question in this case was recognized at the time of the petitioner’s convictions in 2001, he is not

entitled to tolling under subsection (b)(1). Having concluded that the petition was not timely filed

and that no recognized exception applies, the petition was properly dismissed as time-barred. 

CONCLUSION

Based upon the foregoing, we affirm the decision of the Shelby County Criminal Court. 

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JOHN EVERETT WILLIAMS, JUDGE