# FILED
December 11, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE NOVEMBER 1998 SESSION

JOHN HERBERT TA

LLEY, )

) Appellant, ) C.C.A. No. 03C01-9709-CR- 0 038 0 ) vs. ) Hamilton County ) STATE OF TENN ESSEE, ) Hon. Rebecca J. Stern, Judg e ) Appellee. ) (Post-Conviction)

FOR THE APPE LLANT: FOR THE APPELLEE: JOHN HERBERT TA

LLEY JOHN KNOX WALKUP Pro Se Attorney General & Repor ter U.S.P. Leavenworth P.O. Box 1000 TODD R. KELLEY Leavenworth, KS 66048 Assistant Attorney Gener al 425 Fifth Ave. N., 2d Floor Nashville, TN 37243-0493 WILLIAM H. COX, III District Attorney General 600 Market St., Ste. 310 Chattanooga, TN 37402

OPINION FILED:________________ AFFIRMED JAMES CURWOOD

WITT, JR., JUDGE1 In his petition, Talley c hallenges only his c

onviction of felonious possession of marijuana as char ged in Hamilton County indictment 157625. In his appellate brief, he also r elates his challenge to hi s convictions for sale of cocaine as charged in Hami lton County indictments 159 257, 159258, 164952, 164593 and 164955. He alleges he ha s filed other post-convi ction actions attacking these convic

tions. We consider only the challeng e based upon indictment 157625. 2 OPINION The appellant, John Herbert Tall ey , appeals the Hamilton County Criminal Court's denial of his petition for post-conviction relief. Talley is presently serving a life sentence in federal pris on for convictions he rec ei ved in 1995. His federal sentence was enhanced based in part u pon a state conviction he rec eived in 1985. 1 In 1997, Talley fileda post-conviction petition alleging his g uilty plea was not knowing and voluntary and was the result of ineffectiv e assistance of trial counsel. He specifically pleaded that the statute of limitations shou ld not be applied to him under

the authority

of Burford v. State , 845 S.W.2d 204 (Tenn. 1995), and Sands v. State , 903 S.W.2d 297 (Te nn. 1995). The court below dism isse d the petition, finding it was barred by the one-year statute of limitations. In this appeal, Talley alleges the trial court erred (1) in findi ng his petition barred by the statute of limitationsand (2) by failing to make specific findings of fact in i ts order dismissing the petition. Following a rev iew of the record and the briefs of the parties, we affirm the judgment of the trial court

.

I

Talley essentially concedes t hat his pos t- conviction action w as filed manyyears past the expiration of the st atute of limitations. See Tenn. Code Ann. § 40-30-102 (1990) (repealed 1995) (three year statut e of limitations for actions fil ed afterJu ly 1, 1986 ); Tenn. Code Ann. § 40-30-202(a) (1997) (one year statut e of limitationsfor actions filed after May 10 , 1995); see also Carter v. State , 952 S.W.2d 417 (Tenn. 1997) (petitioners for whom three-year st atute of limitations expir ed prior3

to enactment of one year statute of limi tations do not have rig ht to bring postconviction claim within one y ear of enactment). He claims, however, that his claim should n ot be tim e-barr ed under the auth ority

of Burford and Sands

.

Under the current

post-conviction statut

e, consideration of a petition not filed within the statute of limitations is proper only if the claim (1) is based upon a newly established c

onstitutional right not recognized at the time of trial, (2) is based upon new scientific evidence establishing actual innocence of the petitioner,
or ( 3) the claim is ba

sed upon the en hancement of sentence not res ulting from a guilty plea with an agreed s

entenc e where the enhancing sentence subsequently has been held to be invalid. Tenn. Code Ann. § 40-30-202 (b) (1997).

As the court below corr

ectly found, the petitioner' s claims donot fit into any of the statutory categorie s for untimely considerati on. Instead, his allegati ons pertain to ineffective assistance of counsel and an unknowing and inv oluntary guilty plea.
Furthermore, we are unpe rsuaded that Talley's claims

are controlled by Burford or Sands

. Those cases arose under the previous version of the PostConviction Procedure Act, which provided that post-conv iction petitions

had to be filed within (a) three y ears of the date of the final action of the hi ghest stat e appellate court to which an appeal was taken, or ( b) three years from July 1, 1986, t he effect ive date of the statute. See Tenn. Code Ann. § 40-30-102 (1990) (repealed 1995); State v. Mullins , 767 S.W.2d 668, 66 9 (T enn. Crim. App. 1988). An exception applied, however, to preserve the right

of a post-conviction petit ioner to mount an otherwise untimely challenge where str ict application of the statute of limitationswould deprive the peti tioner of due process of law. Burford , 845 S.W.2d at 209-10.2 The Sands petitioner had filed two earlier post-conviction actions. 4 Burford was a unique case in which the petitione r was caught in a procedural trap in which he first had to challenge successfully his convictions in a post-conviction proceeding in one county in order to have a j us ticiable claim for reliefin post-conviction proceedings in another county. Burford , 845 S.W.2d at 208. He was caught in a quandary because the bar of the statute of limitation s applicable to the latter claim was looming prior to a determinat ion of the former claim. Burford , 845 S.W.2d at 208. The su preme court found the application of the statute of limitationsto the latter claim vi olated due process in that limited circumstance and allowed the Burford petitioner to maintain his cl aim notwit hstanding the statute of limitations. See Burfo r d , 845 S.W.2d at 209-10. Burford did not, h owever, give post-conviction petitioners the right to wage collateral attack on stal e convictions themselvesoutside the statute of limitations. Unlike Talley, the petitioner i n Burford filed his attack on his enhancing convictions wit hin the time then allowed under the Act. See generally Burford , 845 S.W.2d 204. Contrary to Burford , Talley seeks to challenge n ot his enh anced federal sentence, over w hich this court has no jurisdiction, but his enhancing Tennessee conv ictions. In this situation, the Burford exception is inapplica ble.

In Sands , the petitione r alleged that the jury instructions used in his 1977 trial were found unconstitutional by the United States Supreme Court in 1979. Sands , 903 S.W.2d at 298. The Sands petitioner initiated his post-conviction claim in 1990, 2 well outside the three year statuteof limitations. See Sands , 903 S.W.2d at 298. In passing on the claim, the supreme court c oncluded that the basic rule of Burford was that "dueprocess prohibits the st rict application of the post-conviction statute of limitations to bar a petitioner's claim w

hen the grounds for

relief, whether legal or factual, arise . . . after the point at which the lim itations period would5

normally have begun to run." San ds , 9 03S. W. 2d at 301. The Sands court established a th ree-st ep analysis for applyi ng the Burford rule to specific factual situations. Under this t est, the court should: (1) determine when the limitations pe riod w ould norm ally have begun to run; (2) determine whether the grounds for r elief actually arose aft er the limitations period w ould normally have commenc ed; and (3) if the grounds are "later arising," deter mine if, under the facts of the case, a strict applicat ion of the limitations period would effectively deny the petitioner a rea s onable opportunity to present the claim . . . carefully w eigh[ing] the

petitioner's liberty interest in "collaterally at tacking constitutional violati o ns occurrin g duri ng the conviction process" against the State's interest in preventing the li tigation of "stale and fraudulent claims." Sands , 903 S.W .2d 301 (quotin g Burford , 845 S.W.2d at 207-08 ).

In the case at bar, there is no allegation which would qualify as a "later arising" claim. Accordingly , the trial court proper ly dismissed the petiti on. See Tenn. Code Ann. § 40-30-206(f) (1997) ("If the facts alleged, taken as tr ue, fail to show that the petitioner is entitled to relief . . . the petition shall be dismissed. ")

Talley is not entitled to

relief from the statute of limitati ons .

II Talley also c laims t he trial court erred by failing to make factual findings under the three-step Sands analysis.

Because the petitioner failed to allege facts under whi ch Burford and Sands mightapply to his case, the tr ial court did not

err by not making the findings. Furthe rmore, the trial court entered a well-reasoned and thoughtful order which complies with the requirement that orders dismissing post-conviction actions shall6

contain specific findings of fact and conclusi ons of law. See R. Sup. Ct. 28, § 6(B)(4)(c).

Fin din g no error in the trial c ourt's di smissal o f Talley' s petitio n, we affirm its judgment.

________________________________ JAMES CURWOOD WITT, JR., JUDGE CONCUR:

_______________________________ DAVID H. WELLES, JUDGE

_______________________________ L.T. LAFFERTY, SPECIAL JUD GE