# FILED
May 20, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1998 SESS ION

THOMAS L. WALKER, ) ) C.C.A. NO. 03C 01-9612-CR-00482 Appellant, ) ) KNOX COUNTY VS. ) ) HON. RAY L. JENKINS, STATE OF TENN ESSEE, ) JUDGE ) Appellee. ) (Post-Conviction)

FOR THE APPE LLANT: FOR THE APPELLEE:
ROBERT R. CA RL, II JOHN KNOX WALKUP Vowell & Carl Attorney General & Repor ter 6312 Kingston Pike, Suite 111 Knoxville, TN 37919 SANDY C. PATRICK (On Appeal) Asst. Attorney General John Sevier Bldg. KEI TH LE IBE RMAN 425 Fifth Ave., North 400 E. Caldwell Ave. Nashville, TN 37243-0493 Knoxville, TN 37917 (At Trial) RANDALL E. NICHOLS District Attorney General ZANE M. SCARLETT Asst. District Attor

ney General City-County Bldg. Knoxville, TN 37902

OPINION FILED:____________________

AFFIRMED JOHN H. PEAY, Judge2 

### O P I N I O N

In June 1985, the petitioner pled guilty to several burglar

y charges in Knox Cou nty. He did not seek direct review of his sentence. Six years later, in Septembe r 1991, he filed a pro se petition for post-conviction rel ief, alleging that his g uilty pleas to the burglary charg es were not voluntarily, int

elligently, and know

ingly entered. Ov

er the next few years, a series of different attorneys, includi ng the Knox County Publi c Defen der, were appointed to the petitioner’s case, but none filed any pleadin gs exce p t motions to withdraw. Eventually, in Nov ember 1994, the trial court di smissed the petition forpost-con viction re lief witho ut an evid entiary h ea ring. Two years later, the petitioner filed a motion with this Cour t see king delayed appeal of the dismissal of his peti tion, which we granted. How ever, upon revie

w of t he record, we affirm the trial court’s dismiss al of his petiti on for pos

t-conv iction relief.

The petitioner pled guilty in 1985, prior to the July 1, 1986, effective date

of T.C.A. § 40-30-102 (repealed and repl aced by § 40-30-202 in 1995). As such, the petition er had until July 1, 1989, to

file a pe tition for post

-convi ction r

elief. Abston v. State , 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988). In this case, the petitioner filed hi s petition for postconvicti on reli ef in September 1991, well after the statute of limitations had run. Thus, his petition was barred by the s tatute of limitations and therefore w as properly dismissed.

On appe al, the petitioner urges that the statute of limitations shoul d be tolled in his case because he was denied a reasonable opportunity to present his petition f or post-conviction rel ief. See Burford v. State , 845 S.W.2d 204 (Tenn. 1992) . A s support for this argument, the peti tioner c ontends that he first sought post -conviction reliefin August 1985, but the Distr ict Attorney General’ s office “forced” him to withd raw this petition two years

later by improperly

threatening to prosecute him as a habitual criminal and seek an enhanced sentence. We reject this ar gument bec ause none o f3

these factual allegations find s upport in the instant recor d.

The only allegations

contained in theSeptember 1991 petition, whi ch is the onlypetition at issue in this appe al, conce rn wh e ther the petition er volunta rily, intellige ntly, and knowingly enter ed his guilty pleas in 1985. The p etitioner h as never a lleged on the record in this cas e any entitlement to post-co nviction relief on the ba si s that the District Attorney General’s office “forced” him to withdraw a 1985

petition for

postconviction relief or that the District Attorney G eneral’s office otherwise acted imp roperly. Moreover, nothing in the record suggests that the p etit ioner should be afforded an exception to the statute of limitati ons under the standard enunciated in Burford . Even
assum i ng that the District Attor ney General “forced” the petitioner to withdraw a prior petition, nothing explains why th e petitioner chose to wait several y

ears---after the statute of limitations had already run---to file another petition. S ee Passarel la v. State , 891 S.W.2d 619, 626 (Tenn. Crim. App. 1994)(stating that “ Burford cannot b e invoked by a petitioner

who hassimply slept on his r ight to seek post-conv

iction relief”) . Accordin gly,
on the basis of the record before us, we find that the petitioner untimely filed his petition forpost-conviction rel ief, and as such, his petition was properly dis missed. The dismissal of the petition is affirmed.

______________ __________________

_ JOHN H. PEAY, Judge

CONCUR:

______________________________ PAUL G. SUMMERS, Ju dge

______________________________ CORNELIA A. CLARK , Special Judge