FILED

August 19, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

AUGUST SESSION, 1997

MONROE E. DAVIS, )

) No. 02C01-9608-CR-00291

Appellant )

) SHELBY COUNTY

vs. )

) Hon. Arthur T. Bennett, Judge

STATE OF TENNESSEE, )

) (Post-Conviction)

Appellee )

For the Appellant: For the Appellee:

MICHAEL E. SCHOLL CHARLES W. BURSON

212 Adams Avenue Attorney General and Reporter

Memphis, TN 38103

KENNETH W. RUCKER

Assistant Attorney General

Criminal Justice Division

450 James Robertson Parkway

Nashville, TN 37243-0493

WILLIAM GIBBONS

District Attorney General

RHEA CLIFT

Asst. District Attorney General

Criminal Justice Complex

Suite 301

201 Poplar Street

Memphis, TN 38103

OPINION FILED: 

AFFIRMED PURSUANT TO RULE 20

David G. Hayes

Judge
1Specifically, the appellant contends that the trial court's order granting its recusal

prevented him from knowing in which court an amendm ent to his petition should be filed. The

appellant filed his post-conviction petition on April 4, 1995. Substituted counsel was appointed to

represent the appellant in this matter on January 10, 1996. On January 12, 1996, a motion was

filed requesting that the trial judge be recused. On March 7, 1996, the m otion was granted. First,

the appellant's original petition was filed outside the three year period. The appellant's motion to

recuse was filed approximately nine months after his post-conviction petition was filed. Moreover,

lack of knowledge does not excuse late filings. Skinner v. State, No. 02C01-9403-CC-00039

(Tenn. Crim . App. at Jackson, July 13, 1994), perm. to appeal denied, (Tenn. Oct. 10, 1994)

(citing W illis v. State, No. 01C01-9211-CR-00359 (Tenn. Crim. App. at Nashville, Oct. 21, 1993),

perm. to appeal denied, (Tenn. Mar. 7, 1994)). This claim is without merit. 

2

The appellant had until Novem ber 6, 1992, to file a petition for post-conviction relief.

2

OPINION

The appellant, Monroe E. Davis, appeals the Shelby County Criminal

Court's dismissal of his petition for post-conviction relief. On October 6, 1989,

the appellant pled guilty to one count of second degree murder and one count of

petit larceny. Pursuant to a plea agreement, the appellant was sentenced, as a

range I offender, to twenty years for the murder conviction and to one year for

the petit larceny conviction to be served concurrently in the Department of

Correction. On April 4, 1995, he filed a petition for post-conviction relief

asserting a breach of his negotiated plea agreement in that he was denied

release by the Board of Parole after thirty percent of his sentence was served. 

The trial court dismissed the petition as being barred by the three year statute of

limitations. See Tenn. Code Ann. § 40-30-102(1990). In this appeal, the

appellant contends that, "due to the motion to recuse and [the] transfer of his

petition to a new court without proper notice," the statute of limitations should not

bar his petition.1

The record supports the trial court's finding that the petition is time-barred.

The limitations period on the appellant's claims began to run on November 6,

1989. See Tenn. Code Ann. § 40-30-102 (repealed 1995). Thus, the appellant

had three years from this date in which to file a cognizable claim for postconviction relief.2

 Tenn. Code Ann. § 40-30-102. The petition in the instant case

was filed on April 4, 1995, well past the three year statute of limitations; thus, the
3

appellant is "barred" from seeking post-conviction relief. 

Notwithstanding the fact that the petition is time-barred, the appellant fails

to state a constitutionally cognizable claim for relief under the Post-Conviction

Procedure Act. See Tenn. Code Ann. § 40-30-105 (1990). The release

eligibility date is the earliest date an inmate convicted of a felony is eligible for

parole and is dependant upon numerous factors. No constitutional right exists to

be released at the earliest release eligibility date. See Depew v. State, No.

03C01-9504-CR-00116 (Tenn. Crim. App. at Knoxville, Aug. 21, 1995).

Pursuant to Rule 20, Rules of the Court of Criminal Appeals, we affirm the

judgment of the trial court.

____________________________________

DAVID G. HAYES, Judge

CONCUR:

______________________________

JERRY L. SMITH, Judge

_____________________________

THOMAS T. WOODALL, Judge