IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

 Assigned on Briefs December 6, 2005

JOHNNY SHIELDS v. STATE OF TENNESSEE

 Direct appeal from the Madison County Circuit Court

No. C-03-166 Donald Allen, Judge

No. W2004-02625-CCA-R3-PC - Filed March 3, 2006

The Petitioner, JohnnyShields, appeals the post-conviction court’s dismissal of his petition for postconviction relief as time-barred. We affirm the judgment of the post-conviction court.

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

ROBERT W.WEDEMEYER,J., delivered the opinion of the court, in which THOMAS T.WOODALL and

ALAN E. GLENN, JJ., joined.

Johnny Shields, pro se, Whiteville, Tennessee.

Paul G. Summers, Attorney General and Reporter;Jennifer L. Bledsoe, Assistant Attorney General;

James G. (Jerry) Woodall, District Attorney General; and Alfred L. Earls, Assistant District Attorney

General, for the Appellee, State of Tennessee.

OPINION

I. Background

This case arises from the Petitioner’s filing of a petition for post-conviction relief in the

Madison County Circuit Court. On May 3, 2002, this Court issued an opinion affirming the

Petitioner’s conviction for aggravated sexual battery and modifying his sentences. State v. Johhny

Shields, No. W2001-01554-CCA-R3-CD, 2002 WL 927606, at *1 (Tenn. Crim. App., at Jackson,

May 3, 2002), no Tenn. R. App. P. 11 application filed. The case was not appealed to the Tennessee

Supreme Court. May 12, 2003, one year and nine days after this Court issued its judgment on the

Petitioner’s direct appeal, the Petitioner’s pro se petition for post-conviction relief was filed with the

Madison County Clerk’s Office. The record indicated that because the Petitioner was incarcerated,

the petition for post-conviction relief was delivered to the Madison County Clerk’s Office via the

Tennessee Department of Correction. The space where the Petitioner was supposed to mark the date

that his petition was handed over to the Department of Correction was left blank. 
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During the hearing, the Petitioner argued that because he was incarcerated he was not aware

of this Court’s judgment until several days after it had been issued. The Petitioner then contended

that because he was not immediately aware of this Court’s judgment, he should have been granted

extra time to file his petition for post-conviction relief, and, thus, his petition should be deemed

timely. Based on this evidence the post-conviction court found that the petition for post-conviction

relief was not timely filed, and the post-conviction court dismissed the petition with prejudice.

On appeal, the Petitioner filed a motion with this Court to supplement the record, which was

subsequently granted. The record on appeal was supplemented with the Petitioner’s “Motion to

Designate Additional Portions of the Record,” which was filed subsequent to the post-conviction

hearing. The “Motion to Designate Additional Portions of the Record” includes the Petitioner’s

affidavit stating that Kathy Watson, the mail room clerk at the Hardeman County Correctional

Facility, could support the proposition that the Petitioner had delivered his petition for postconviction relief to the Department of Correction on May 2, 2003.

 

II. Analysis 

On appeal, the Petitioner contends that his petition was in fact filed in a timely manner,

because it was delivered to the Tennessee Department of Correction on May 2, 2003, which was

within the one year statute of limitation. The State argues that evidence to support the Petitioner’s

contention was not presented at the hearing in the post-conviction court and that this Court is bound

by the post-conviction court’s factual findings unless the evidence in the record preponderates

against those findings.

Under the terms of the Post-Conviction Procedure Act, a petitioner bears the burden of

proving his allegations by clear and convincing evidence. Tenn. Code Ann. § 40-30-210 (f) (2003).

The credibility of the witnesses and the weight and value afforded to their testimony are

appropriately addressed in the trial court. Bates v. State, 973 S.W.2d 615, 631 (Tenn. Crim. App.

1997). On appeal, the burden is on the petitioner to establish that the evidence preponderated against

the findings of the trial judge. Clenny v. State, 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).

Otherwise, the findings of fact by the trial court are conclusive. Graves v. State, 512 S.W.2d 603,

604 (Tenn. Crim. App. 1973).

Under Tennessee Code Annotated section 40-30-102 (a) (2003), a petitioner “must petition

for post-conviction relief . . . within one (1) year of the date of the final action of the highest state

appellate court to which an appeal is taken . . . .” However, according to Tennessee Supreme Court

Rule 28, section 2 (G), and Tennessee Rules of Criminal Procedure 49 (c), if a petition is “prepared

by or on behalf of a pro se litigant incarcerated in a correctional facility and [is] not received by the

clerk of the court until after the time fixed for filing, filing shall be timely if the papers were

delivered to the appropriate individual at the correctional facility within the time fixed for filing.”

We begin our analysis by noting that information in the supplemental record, if true, appears

to support the Petitioner’s assertion that the petition for post-conviction relief was delivered to the
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Hardeman County Correctional Facility mail clerk on May 2, 2003, which was within the one year

statute of limitations. Because the Petitioner is currently in the custody of the Tennessee Department

of Correction, he is entitled to have the statute of limitations for his post-conviction petition

measured from the date of the final action of the highest state appellate court to which his appeal was

taken to the date that he delivered the petition to the appropriate individual at the correctional

facility. See Tenn. Sup. Ct. R. 28, § 2 (G); Tenn. R. Crim. P. 49 (c). In this case, the final action

of the highest state appellate court occurred on May 3, 2002, when this Court issued its opinion on

the Petitioner’s direct appeal, and according to the affidavit used to supplement the record, the date

that the petition was delivered to the appropriate individual at the correctional facility was May 2,

2003. 

Although the affidavit submitted to supplement the record does purport to present evidence

supporting the Petitioner’s assertion that his petition for post-conviction relief was filed in a timely

fashion, that evidence cannot properly be considered by this Court. The Petitioner’s motion to

supplement the record was granted under the assumption that the evidence that was to be presented

to supplement the record had been part of the record at the post-conviction proceeding, but for some

reason had not been certified to this Court as part of the official record on appeal. However, that was

not the case. The affidavit sent to this Court with the Petitioner’s appeal was not part of the record

considered by the post-conviction court, thus, we cannot consider it when determining whether the

facts of the case preponderate against the post-conviction court’s findings. In light of this, it is this

Court’s determination that the evidence presented at the post-conviction hearing does not

preponderate against the post-conviction court’s findings, and the Petitioner is not entitled to relief

on this issue. 

III. Conclusion

In accordance with the foregoing, we conclude that the post-conviction court committed no

reversible error. Therefore, the judgement of the post-conviction court is affirmed.

 _____________________________________

 ROBERT W. WEDEMEYER, JUDGE