### IN THE COURT OF CRIMI NAL AP PEALS OF TENNES SEE AT JAC KSON A ssi gne d on Br ie fs D ec em be r 6, 200 5

JOHNN Y S HIELD S v. STA TE OF TEN NES SEE

Direc t appeal f

romthe Madison Coun ty Circ uit Court No. C-03- 166 Donald All en, Judge

No. W2004-02625-C CA-R 3-P C - F iled March 3, 2006

Th e Pe tit ion e r, John ny Shi e lds , a pp e a ls the po st- c on vic tio n c ou rt ’s dis mis sa l of his pe tit ion fo r p os tc on vic tio n r e lie f a s ti me -b arr e d. We a ff ir m th e jud g me nt o f the po st- c on vic tio n c ou rt

. Tenn. R. App . 3 Appeal as of Right; Judgme nt of th e Circ uit Court Aff irm ed

R OB E R T W. W EDEMEYER , J ., delivere d the opinion of the court, in which T H O M A S T. W O O D A LL and A L AN E. G L EN N , J J ., joined.

J ohnny Shields, pro se, Whit eville, Tenne ssee.

Pa ul G . Su mme rs , At torne y Ge ne ra l a nd Re po rt e r; Jenn if e r L

. B le ds oe , As sis ta nt A tto rn e y Ge ne ra l; J ames G. ( J err

y ) Woodall, District Attorney Gene ral; and A lfred L . Earls, Assistant District Attorney Gene ral, for

the Appellee , State of Tenne ssee.

OP IN ION I. Bac kgr ound

This case arises f

rom the Petitioner’s filing of a pe tition for post -conviction relief in the Madison CountyCircuit Court. On May 3, 2002, thi s C ourt issued an opinion aff irming the Petitioner’s conviction for ag g ravated s exual battery and modi fy ing his sentenc es. S tate v. Johhny Shields, No. W 2001-01554-CCA-R3-CD, 2002 WL 927606, at *1 (Te nn. Crim. App., at J ackson, May 3, 2002), no Tenn. R. App. P. 11 application filed

. The c ase w as not appe aled to the Te nnessee Supreme Court. May

12, 2003, one y ear

and nine da y s after

this Court issued its judgme nt on the Petitioner’s direc t appea l, the Petitioner’s pro se pe tition for post-conviction relief was filed with the Madison CountyClerk’s Offic e. The rec ord indicated that be cause the Petitioner was inca rce rate d, the petition for post-convic tion relief wa s delivere d to the Madison CountyClerk’s Of fice via the Te nn e sse e De pa

rt me nt o f C or

re c tio n. Th e sp a c e wh e re the Pe tit ion e r w a s su pp os e d to mark the da te that his petition was handed ove r to the De partment of Corr ection wa s left blank.-2-

During the hea

ring , the Petitioner arg ued that beca use he wa s incarc erated he wa s not awar e of this Court’s judgment until sever al day s afte r it ha d been issued. T he Petitioner then c ontended that beca use he w as not immediately awa re of this Court’s judgment, he should have been g rante d extra time to file his petiti on for post-c onvicti o n re l i ef , and, thus, his petition shoul d be dee med timely

. Ba sed on this evidence the post-conviction court found that the petition for post-c onviction relief was not timely

filed, and the post-conviction court dismi ssed the petition with prejudice

. On appe al, the Petitioner filed a motion with this Court to supplement the re cord, w hich was

su bs e quent ly grante d. Th e re c or d o n a pp e a l w a s su pp le me nte d w ith thePe tit ion e r’ s “ Mo tio n to Desig nate Additional Portions of the Record,” which was filed subsequent to th e p o st-conviction heari n g . The “ Motion to Designate Additional Portions of the Record” includes the Petitioner’s aff idavit stating t h at Ka thy

Watson, the mail room clerk at the Har deman County Correc tional F a c ili ty , c ou ld s up po rt th e pro po sition that th e Pe tition e r h a d d e liv e re d h is p e tit ion fo r p os tconviction re lief to the De partment of Corr ection on May 2, 2003.

II. Ana lys is
On appe al, the Petitioner conte nds that his petition was in f ac t fi l ed in a timely

manner , beca use it was d el i v er ed to the Te nnessee Depa rtment of Corre ction on May 2, 2003, which wa s within the one y ear statute of limit ation. The State arg ues that evidenc e to support the Petitioner’s contention was not prese nted at the hearing in the post-conviction court and that this Court is bound by the post-conviction court’s fac tual finding s unless the evidenc e in t he re cord pr eponder ates

a g a ins t th os e fi nd ing s.

Unde r th e te r ms o f

th e Po s t- Co n v ic ti o n Pr o c e d u r e A c t, a p e ti ti o n e r

b e ar s th e b u r d e n of proving his alleg ations by clea r and c onvincing evidenc e. Tenn. Code Ann. § 40-30-210 (f) (2003)

. Th e cr ed i b i l i t y

of the witnesse s and the we ight a nd value a ffor ded to their testimony are appropriately addre ssed in the trial court. Bates v. State, 973 S.W .2d 615, 631 (Tenn. Crim. App. 19 97 ). On app e a l, the bu rd e n is on the pe tit ion e r t o e sta bli sh that th e e vid e nc e pr e po nd e rate d a g a ins t the finding s of the trial judg e. Clenny v. State, 576 S.W .2d 12, 1 4 (T en n

. C ri m

. App. 1978). Otherw ise, the finding s of fa ct by the trial court are conclusive. Gra ves v. State, 512 S.W .2d 603, 604 (Tenn. Crim. App. 1973)

.
Under Tenne ssee Code Annotated section 40-30-102 (a) (2003), a petitioner “must petition fo r po st- c on vic tio n re lie f

. . . wi thi n o ne (1 ) y e ar o f the date of the fi na l a c tio n o f the hig he st s ta te appellate court to which a n appeal is take n

. . . .” Howe ver, a ccor ding to Te nnessee Supreme Court Rule 28, section 2 (G) , and Te nnessee Rules of Criminal Procedure 49 (c) , if a pe tition i s “pre pare d by or on beha lf of a pr o se litiga nt incarc erated in a cor rec tional fac ilityand [is] not rec eived by the cler k of the c ourt until after the ti m e fi x ed for filing, f iling shall be timely

if the pape rs wer e delivere d to the appropriate individual at the cor rec tional fac ilitywithin the time fix ed for filing.”

We be g in our analy sis by noting that information in the supplemental re cord, if tr ue, appe ars to support the Petitioner’s assertion that the pe tition for post-conviction relief was de livered to the-3-

Har deman County

Correc tional Fac ility mail clerk on Ma y 2, 2003, which wa s within the one y ear statute of limitations. Be cause the Petitioner is curre ntly in the custody

of the Te nnessee Depa

rtment of Corre ction, he is entitled to have the statute of limitations for his pos t -c o n v i ction petition

measure d from the date of the f inal action of the hi g hest state appe llate court to which his appea l was take n t o the date that he deliver ed the pe tition t o the appr opriate individual at the c orre ctional fac ility . See Te nn. Sup. Ct . R. 28, § 2 (G); Tenn. R. Crim. P. 49 (c). In this case, the final a ction of the hig hest state appe llate court occur red on May

3, 2002, when this Court issued its opini on on the Pe tit ion e r’ s dir e c t app e a l, an d ac c or din g to the a ff ida vit us e d to su pp le me nt the re c or d, the da te that the petition was delivered to the appr opriate individual at the c orre ctional fa cility was May 2, 2003.
Although the aff

idavit submitted to supple ment the rec ord does purport to present evide nce
su pp ortin g the Pe tit ion e r’ s ass e rt ion that his pe tit ion fo r pos t- c on vic tio n r e lie f w a s f ile d in a tim e ly fa sh ion , th a t e vid e nc e c a nn ot p ro pe rl y be c on sid e re d b y

thi s Co urt. T he P e tit ion e r’ s mo tio n to supplement the record was gra nted under the assumption that the evidenc e that wa s to be prese nted to s up ple me nt the re c or d h a d b e e n p art of the re c or d a t the po st- c on vic tio n p ro c e e din g , b ut f or so me
rea son had not been certified to this Court as part of the off icial re cord on a

ppeal. How ever , that was not the case. The affidavit sent to this Court with the P etitioner’s appeal wa s not part of the r ecor d considere d by

the post-conviction court, thus, we ca nnot consider it when determining whether the fa c ts of the c a se pr e po nd e rate a g a ins t the po st- c on vic tio n c ou rt ’s fi nd ing s. I n lig ht of thi s, it i s th is Court’ s d et ermination t hat the evide nce pr esente d at the post-convic tion hearing does not preponde rate ag ainst the post-conviction court’s finding s, and the Petitioner is not entitled to relief on this iss ue.

III. Conclusi on

I n acc ordanc e with the foreg oing, we conclude that the post-c onviction court committed no

reve rsible er

ror. The ref

ore, the judge ment of the post-c onviction court is aff irmed.

_________________

_ _ _ _ _ _ _ _ _ _ _ _ ________ ROBERT W. WEDEMEYER, J UDGE