### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Assigned on

Briefs A ugust 20, 2002
SHAUN LAMON T HEREFORD v. S TATE OF TENNES SEE
Appeal from the Criminal Court for Hamilton County No. 239059 Douglas A. Meyer, Judge

No. E2 002-0 1222- CCA-R3 -PC November 13, 2002

The petitioner, Shaun Lamont Hereford, a ppeals the Hamilton County Criminal Court’s dismissal of his petition for post-conviction relief, in which he alleged void convictions, misrepre sentation by his trial attorney, a

nd that he was entitledto DNA analysis of phy sical evidence. Discerning no error in the tria l court’sdismissal o f the pet ition without an evid

entiary hearing , we aff

irm. Tenn. R. App.P. 3; Judg ment of t he Crim inal Court

is Affirme

d.

J AMES C URWOOD W ITT , J R ., J., delivered the opinion of the court, in whi ch G ARY R. W ADE , P.J., and R OBER T W. W EDEMEYER , J., joined. Shaun Hereford, Appellant, Pro Se.

Paul G. Summers , Attorne y General & Repor ter; Kat hy D . Asl inger, As sistant Att orney Genera l; William H. Cox, I

II , Distric t Attorne

y General ; and Rodne

y Str ong, Ass istant Dis trict Atto rney General, for the Appellee, State of Tenne ssee.
OPINION

The record

on appea

l contain s little more t han the post-conviction petition as supplemented, the court’s order dismissing the petition, and the petitioner’s notice of appeal. From the petition, we glean that the petitioner is challenging his 1994 convictions in numerous indictme nts for ag gr av at ed bu rg la ry a nd th ef t. He wa s c on vi ct ed by a ju ry o n some counts and pleade d guilty to the remai ning counts. Apparently the judgments on the guilty -pleaded counts, if not the judgments in all counts, were entered on June 21, 1994. No appeal wa s taken.

On January 7, 2002, the petitioner filed a p etition fo

r post-c onviction

relief. In thi s petition as ame nd ed or supplemented, he alleged that his trial counsel re presented to him that he would receive an effective De

partment of

Correct ion sente nce of 42 ye ars for all of his June 21, 19941 In 197 8 the D epa rtm e nt of Correcti on implement ed the Off ender Based Computer Inf ormation Sy stem (OB CIS). In 1992 the department convert ed from OB CIS to the current sy stem, the Tennessee Offender Management Inf ormat ion System

. See Jero me Streete r v. Ten nesse e D epa rtme nt of C o rrec ti on , No. M1999-022 67-COA- R3-CV (Tenn. Ct. App., Nashville, Aug. 31, 2000).
-2- convicti ons. The petit

ioner cl aimed tha

t a Departm ent of Cor rection “TOMI S” 1 letter dated October 6, 2001 advised him for the first time that his effective sentence wa s 52 years. He also claimed that his counsel hadtold him that, as a career offender, he would be released upon serving 60 percent of his sentence but that

the TOMIS letter informed him that he would only be e ligiblefor rele aseafter serving 60 perce

nt of his se

ntence. Further , the petitioner c laimed in h is petitio n that th e TO MIS letter revealed that thepetitioner was serving sentences in case s in which he rece ived no convictions

. Fi na ll y, the pe titi oner m oved t he cou rt for an ord er dir ectin g d isc overy of the sta te’s tria l exhibits of physical evidenc e so as to allow him to discern the proper exhibits to be the subject of DNA analysis, which he a

lleged would exonerate him from the crimes of which he stands c onvicted.

The petitioner

alleged in his petition that his 2002 petition for post-conviction relief
was not barred by

the one-ye ar statute of limitations because principles of due process compel that he be allowed to avoid t he statute

of li mitations so a s to present his claims of attorney misrepresentation. The petition recites that the DNA analy sis claim is unfettered by any applica ble statute of limitations.

The post-con

viction c ourt held

that the Post-Conviction DNA Analysis Act of 2001, Tenn. Code Ann. §§ 40-30-401 to -413 (Supp. 2001), provides that a petitioner wh o challenges burglary or theft c onviction s pursuan t to the Ac t may

obtain no relief unless the same is “directed” by the trial court. The lower court declined to direct any discove

ry or DNA analy sis on the grounds that many of the petitioner’ s convictions were the result of guilty pleas which were presented to the court upon agreed factua

l bases and in which the defendant admitted guilt.

The post-conviction court then opined that, to the extent thatthe petiti oner soug ht to attack the Depa rtment of Correct ion’s ca lculation of his sen

tences, the claim

was not c ognizabl e in
a post -conv icti on pro ceedin g. Finally , the lowe r court held that th

e claims of misrepresentation of counsel were barred by

the post-conviction statute of limitations and that “due process does not require tolling of the limi tations period or even an evidentiary hearing [because] any

claim of misrepresentation on the part of counse

l rega rding th e petitioner’s re

lease eligibility [did not arise] after commencement of the limitations period.”

The cou rt’ s or der rec it ed i n a f oot not e th at t he T OMIS letter do es not include any charges from the June 21, 1994 proceedings that were not descr ibed in the guilty plea

petition. The post-conviction court

concluded that trial counsel did not misrepresent the release e ligibility date or the length of

the effectivesentence because the actual leng th of the June 21, 1994 effective sentence was in fa ct 42 y ears.-3- Indeed, we note from the TOMIS letter and the guil ty p lea petit

ion affixe d to the pos tconviction petition that the additional ten yea rs was apparently

derived from 1988 and 1990 convictions for larceny

and burglary . For these convictions, the defendant rec eived an effective incarcerative

sentenc e of te n years, a nd the 1994 sentences were appare ntly imposed to run consecutively to these

earlier sentences, as provided in the g uilty plea submission petition.

Post-conv iction re lief is onl y a vailable when “the convic tion or se ntence i s void or voidable because of

the abridgment” of

a constitutional right. Tenn. Code Ann. § 40-30-203 (1997). The post -conv icti on pet itio ner bea rs the burde n of pr ovin g his o r her al lega tions by clea r and convincing evidence, id. § 40-30-210(f) (1997); however, if prior to the evide ntiary hear

ing the trial court reviews the post-conviction record and determines“that the petitione r is entitled to no relief, the court shall dismiss the petition,” id. § 40-30-209(a) (1997); Tenn. R. Sup. Ct. 28 § 6(B)(4)(a) (court may dismiss post-conviction petition that states no colorable claim).

Unless the

post-con viction pe tition is fil ed within

one yea r “of the date of the

final action of the hig

hest state ap pellate court to w

hich an a ppeal is ta ken or, if no appea l is taken, within
one (1) y ear of t he date on which t

he judg ment bec ame fina

l,” the po st-convi ction cla ims are barred. Tenn. Code Ann. § 40-30-2 02(a) ( 1997); see also Willia ms v. State , 44 S.W.3d 464 , 468 (Tenn

. 2001) (post-conviction claimant whose conviction was finalized between May 10, 1992 and May

10, 1995 has until May 10, 1996 to file a post-conviction petition).

First, we addr

ess the pe

titioner’ s claim tha

t he is ille gally

and unco nstitu tiona lly serving sentenc es in the D epartme nt of Corr ection th at are n ot based u pon any imposed c onviction s. He claims that some of the convictions listed in the TOMIS report are not included in his June 21, 1994 plea petition. He argues that his claim is not barr ed by

the statut

e of limita

tions bec ause principles of due pr

ocess en title him to p

resent a post-con viction c laim which he has been denied
a “reasonable opportunity

to assert . . . in a meaningful time and manner.” See Williams , 44 S.W.3d at 468.

We disagree and ho ld that the claim is barred by the statute of limitations. The petition makes no case that the p etitioner was deni ed a rea sonable o pportunit y to assert his postconviction claim of i llegal sentenc es; it mer

ely ass erts that the petitioner “discovered on or about 10/10/92 that he had been convicted and sen

tenced f or offe nses he ha

d not plea ded gui lty to.” This alle gation is insuffi cient to in voke due processconsider

ations to to ll the runn

ing of the postconviction statute

of limitations. See Brown v. State , 928 S.W.2d 453, 457 (Tenn. Crim. App. 1996) (“[T]he petitioner’s claimed lack of knowledge doe s not toll the statute [of l imita tions ] for postconviction purposes.”)

Thus, post-conviction relief on this issue

is barred by

the post-conviction statute of limitations

. That said, we are aware that the pe titioner claims entitlement to atta ck an illegal
sen tence “at any time.” See, e.g., State v. Mahler , 735 S.W.2d 2 26, 228 (Tenn. 1987 ); State v
. Burkhart, 566 S.W.2d 871 (Tenn. 1978). This court has previously explained that the phrase “illegal sent ence” is synony

mous with the habeas corpus concept of a void sentence and is, ther efore ,2 We note that t he TO MIS letter references a f ew convictions that

emanated from judgment dates other than June 21, 19 94. W e also no te that on ly the od d-num bere d pa ges fro m the T OM IS letter w ere ex hibited to the p etitioner ’s supplement al petit

ion and were incl uded in t he appel lat e recor d. The TOM IS l ett er re fl ects 22 convi cti ons on June 21, 199 4 for burglary o r theft, and the plea petition reflects 32 such conv ictions, not counting misd emean ors. -4- cogniza ble in a habeas corpus proceeding. Cox v. Sta te , 53 S.W.3d 28 9, 292 (Te nn. Cr im. App. 2001). However, the petitioner in the pre se nt case has failed to comply with the procedural require ments for filing and prosecuting a petition for writ of habeas corpus
. See Tenn. Code Ann. § 29- 21-107 (2000) (requiring verified pe tition, to which is appended a copy of the legal proces s up o n which the restraint is based, and requiring that the pe tition state the specific facts of the petitioner’s restraint and aff irm th at the claim of illegality of the restraint has not previously been brought and that the application is a first application for the writ, or if not, that a copy of any previous petition a

nd proceedings b e prese

nted); see also Cox , 53 S.W.3d at 292 . Thus , even thou gh
our Code sets forth no statute of limitations for quests to obtain a writ of habeas corpus , treating the petitioner’s proceeding as one in habeas corpus is not beneficial to him.

As an aside, we note that we have consider ed w hether Code section 29-21-104 compelledthe trial court to consider habeas corpus relief, desp ite the petitioner’s noncompliance withthe requirements for habeas c orpus proceedings. Section 29-21-104 provides that when a court withpowers to

issue the writ “ha s evidenc e, from a judicial proceeding, that any person within the jurisdiction of such c ourt . . . is illegally imprisoned or re strained of his liberty, it is the duty

of such court . . . to issue . . . the writ . . ., although no application has been made theref or.” Tenn. C ode Ann. § 29-21-104 (2000). However, in the present case, the record before us belies the petitioner’s contention that his Jun e 21, 1994 plea petition did not include charges that became the bases for convictions and sentences listed in the TOMIS letter. We have reviewed and compared the

TOM IS list with the June 21, 1994 plea petition and find that no sentences are being e xecuted upon June 21, 1994, convicti ons that a

re not co ntained in the June 21 , 1994 ple a petit io n. 2 Thus, the petitioner alleged no basis for the issuance of a w rit of habeas c orpus.
We now address the claim of misrepresentation by tria l counsel and concludethat it is barred by

the post- conviction statute of limitations. The petitioner claims that counsel misrepresented

the length of the aggr

egate sentence resulting

from the charges that were disposed of on June 21, 199 4 and misrep resented the nature of the 60 perce nt release eligibility

date. He argues that, in Williams , our supreme court es tablished

a rule that attor ney misrepre sentation

tolls the post-conviction statute of limitations.

We point ou t that the Williams court wa s reviewing atto rney “misrepr esentat ion in failing to properly withdraw from representation [following this court’s affirmance on appeal] and in failing to notify the pe titioner that no app licat ion for permission to appeal would be filed.” Williams , 44 S.W.3d at 468 n.7. In the present case , the petitioner alleges no actions by trial counsel that hampered the petitioner fr om prese nting hisclaims or tak ing a n appeal. Moreover, the petitioner’s June 21, 1994 plea petition recites that the effective 42-y ear sentence imposed on t h e June 21, 1994 convictions would run co nsecutiv ely to at leas t the seve

n-y ear ef fective sente nce ,3 Th e 19 90 e ffective se ntence resulted from a t least elev en co nviction s for bu rglary o r larcen y. -5- which was imposed in 1990 to run consecutively to the 1988 three- year e

ffective sentence. 3 The effectivesentence y

ielded by the

three sets of convictions is 52 years, the amount calculated by

the Department of Correction.

Furthermore, in the face of a due process claim, see Burfo rd v. State , 845 S.W.2d 204 (Tenn. 1992), this court has held that a “petitioner’s lack of knowledg e that he had grounds for a pe t ition for post-conviction relief until after the statute of limitations had run cannot defe at the application of the statute of limitations.” Howard Templeton v. State , No. 01C01-9406-CC-00220, slip op. at 3 (Tenn. Crim. App., Nashville, Jan. 3, 1995). Petitioner Templeton claimed in that ca se that his trial c ounsel misin formed him tha t his 35 percent release eligibility date meant that he “would be rele ased” up on serving 35 per cent of h is sentence and th at he did not le ar n of the misstatementuntil his parole was denied following the release eligibility

date. Id. Neverth

eless, th is court held that the post-conviction p etition f iled beyond the statute of limitations was barr ed and said, “To hold otherwise would defeat the purpose of the statute of limitations in protecting the St ate’s intere st in preventing the litigation of stale and fraudulent cla ims and in ensuring administrative efficiency

and economy.” Id. In lik e manner , we hold t

hat the in stant peti

tio n er’s claim of counsel misrepresentation is barred by the statute of limitations.

We now turn to t he petitioner ’s issue that he should have been allowed to proceed withhis claim pursuant

to the Post-Conviction DNA Analysis Act of 2001. See Tenn. Code Ann. §§ 40-30-401 through -413 (Supp. 2001). At the outs et, we note that the Act conta

ins no explic it statute of limitations. Cf. id. § 40-30-202(a) (1997) (establishing one- ye ar post- convicti on statute of limitations that governs petitions pursuant to Part 2 of Title 40, Chapter 30 (Post-Conviction Procedure Act)); id. § 40-30-401 (Supp. 200 1) (Post- Conviction DNA Ana

lys is Act of 2 001 set fo

rth in Part 4). Persons convicted of certain crimes may petition the t rial courtand request “for ensic DNA analysis of any

evidence that is in the possession or con t rol of the prosecution, law enforc ement, laboratory, or court, and that

is related to the investigation or prosecution that resulted in the judg ment of co nviction and that may contain biological evidence”; even so, petitioners convictedof burglary

or theft may only

file the petition “at the direction of the trialjudge.” Id. § 40- 30-403 (S upp. 2001) . A trial c ourt shall order th e DNA an aly sis if it finds that:
(1) A reaso nable pr

obability exists that th

e petition er would nothave be en prosecuted or convicted if exculpatory results had bee n obtained through DNA ana

lys is; (2) The evidence is still in existence andin such a condition that DNA analy sis may be conducte d;
(3) Th e evi dence was never previously subjected to DNA analy sis or was not subjected to the analy sis that is now reques te d which could resolve an issue not resolved by previous analysis; and-6- (4) The application for analy sis is made for the purpose of demonstrating innocence and not to unreasonably

delay the e

xecution of sentence or administration of justice.

Id. § 40-30-404 (Supp. 2001). When a petition is filed, the court “may in its discretion make such other orders as may

be appropriate.” Id. § 40-30-411 (Supp. 2001).

In our view, the post-conviction judge did no t ab use his dis cretion in declin ing to “direc t” the advancement of the petitioner’s DNA ana lysis re que st. In his petition, the petitioner sought analy sis of “[some] items in state possession which were used as ‘[prosecution exhibit s]’ to convict Petitioner . . . [and] can prove his innocencethrough DNA analy sis. The test results would show the identity of the rea l perpetrator of said crimes.” The petition then reque sted discovery “ from the state in order to fully ide ntify the items . . . which are best suited for DNA analy sis.”

Thes e allegations utterly

fail to demonstrate bases upon which the post-conv ictio n court could make t he fin dings required by Code sec tion 40-30 -404, and accor dingly , they

fail tostate a claim pursua nt to the A ct. We hold that the tr

ial cour t did not er

r in summar

ily d ismissing this claim. Having now reviewed all of the issues raised by the petitioner on appeal, we affirm the judgment of the trial court.

___________________________________ JAMES CURWOOD WITT, JR., JUDGE