# FILED August 19, 1999 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF T ENNESSEE AT NA SHVILLE CALVIN OLIVER, ) ) C.C.A. NO. 01C01-9902-CR-0 0049 Appellant, ) (No. 13773 Be low) ) MARSHALL C OUNTY VS. ) ) The Hon. William Charles Lee STATE OF TENNESSEE, ) ) (Dismissal of P ost-Conv iction Petiti on) Appellee. ) ) AFFIRMED PURSUANT TO RULE 20 O R D E R
This matter is before the Court upon the state’ s motion requesting that the judgment in the above-styled cause be affirmed pu rsuant to Rule 20, Tennessee Cour t of Criminal Appeals Rules.

It appears from the petit ioner’s post-convictio n petition that he pled guilty to theft, auto burglary, and d elivery o f a schedule II c

ontrolled su bstance on August 7, 1996. It does not appear that an ap peal was taken. Subsequently, on January 5, 1999, the petitioner filed a pro se pet ition for pos t-convicti on relief. I n his petiti on, he claimed that the statute of l imitationsshould be wai ved because his I .Q. is less than 85. On January 8, 199 9, the tria l cou rt di smi sse d t he p eti

ti on a s ou tsi de t he s

tat ute of l imi tat io ns. We af

fi rm. Pursuant to T.C.A. § 40-30-206(a), a petitioner must petition for post-convicti on relief within one year of the date of the final action of the hi ghest state appel late court to which an appeal was taken. Under T.C.A. § 40-30-202(b), a court does not have juri sdiction to consider a petit ion for p ost-conv ictionrelief if i t was filed outsi de the one-year statute of limitations

unless (1) the claim in the peti tion is based upon a final ruling of an appellate court establishi ng a constitutional right that w as not reco gnized as exist ing at the tim e of trial, if retrospective applicati on of that righ t is requir ed; (2) the cl aim in the petit ion is based upon new scienti fi c eviden ce establishi ng that such petitioner is ac tually i nnocent of the offense or offenses for which the

petitioner

was convicted; or (3) the claim in the peti

tion seeks rel ief from a sentence t hat was e nhanced bec ause of a

previo us convictio n and such convic tion in the case in which t he claim is asserted was not a gui lty plea with an agreed sentence, and the previous conv iction has subsequently been held to be invalid.

In the present case, the petiti oner file d his petiti on for post-convi ction reli ef

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outside the statute of l imitations set forth in T.C.A. § 40-30-202(a), a nd he does not submit that any of his claims fall within one of the exception s set forth in T.C.A. § 40-30-202( b). Instead, the petitioner

contends that th e statute of li mitations should b e tolled becau se hi s I.Q. is below 85. The record does not r eflect that the petitioner is menta lly incompeten t, and the statute clearly stat

es that the one-

year limitati ons period shall n ot be t o lled for any r eason, including any tolling

or saving provisi on otherwise avai lable at la w or equity.T.C.A. § 40-3 0- 202(a). Nor do we find that application of the statute o f limitatio ns i n this insta nce does not violate due process principles. See Burford v. State , 845 S.W.2d 204, 208 (Tenn. 1992).

IT IS, THEREFORE, ORDERED that the state’s motion to a ffirm the judgment of the trial court

under Rule 20, Tenn essee Court of Criminal Appeals Rul es, is granted, and the judgm ent of the tria l court is affirmed. It appearing that the petiti oner is indi gent, costs of these proceeding s are taxed to the state.

_______________________ ______ JERRY L . SMIT H, JUDGE CONCUR:

_______________________ ______ JOHN H. PEAY, J UDGE

_______________________ ______ DAVID H. WELLES, JU DGE