# FILED

Au gust 19, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF CR IMINA L A PPEA LS OF TENN ESSEE AT JAC KSON AU GUST SESSION , 1997

MONROE E. DAVI S, ) ) No. 02C01-9608-CR-00291 Appellant ) ) SHELBY COUNTY vs. ) ) Hon. Arthur T. Bennett, Judge STA TE OF TENN ESSEE, ) ) (Post-Conviction) Ap pellee )
For the Appell ant : For the Appell ee : MICHAEL E. SCHOLL CHA RLES W. BUR SON 212 Adams Avenue Attorney Gen eral and Repor ter Memphis, TN 38103 KENNETH W.RUCKER Assistant Attorney Gener al Criminal J ustice Division 450 James Roberts on Parkway Nashvil le, TN 37243-0493
WILLIAM GIBBONS Distric t Attorney General RHEA CLIFT Asst. Dist rict Attorney General Criminal J ustice Complex Suite 301 201 Poplar Street Memphis, TN 38103

OPINION FILE D: AFFIRMED PURSUANT TO R ULE 20

David G . Hayes Judge1 Specif ical ly , t he appel lantcontends t hat t he tr ial court 's or der gran ti ng it s recusal prevent ed him from knowing i n which co urt an amendm ent t o his peti ti on shoul d be fi led. The app ellant filed his po st-c onv iction p etition on Apr il 4, 1995 . Sub stituted cou nse l was app ointed to represent

the appe ll ant i n thi s matter on Ja nuary10, 1996 . On January 12, 1996 , a moti on was filed req ues ting tha t the trial jud ge b e rec use d. O n M arc h 7, 1 996 , the m otion w as g rante d. Firs t, the a ppe llant's orig inal pe tition wa s filed o utside the thr ee yea r per iod. T he a ppe llant's m otion to recuse was fi led ap proxi matelynine months after his post-conviction petit ion was filed. Moreover, lack of k now ledg e do es n ot ex cus e late filings

. Sk inne r v. Sta te , No. 02C01-9403-CC-00039 (T enn . Crim . App . at Ja ck son , July 13 , 199 4), perm. to appe al den ied , ( Tenn. Oct. 10, 1994 ) (ci ti ng W illi s v. S tate , No. 01C0 1-9211-C R-003 59 (Te nn. Crim . App. at Nashville, Oct. 21, 1993), perm. to appe al den ied , (Te nn. M ar. 7, 1 994 )). Th is claim is witho ut m erit.

2 The appellant had until Novem ber 6, 1992, to fil e a petiti on for post-con victi on relief. 2 OPINION
The appellant, Monr

oe E. Davi s, appeals the Sh elby County Criminal Court's di smissal of his petition for post -convic tion relief. O n October 6, 1989, the appellant pl ed guilty to one count of second degree murder and one count of petit larceny. Pursuant to a plea agreemen t, the appellant was sentenced , as a range I offender, to twenty years for th e murder conv iction and to on e year for the petit larceny conv iction to be s erved concu rrently in the Depart ment of Correction . On April 4, 1995, he filed a pet ition for post- convicti on relief assertinga breach of his ne gotiated plea agreement in t hat he was den ied release by

the Board of Parol e after thirty percent of his s entence was served. The trial cour

t dismissed t he petition as b eing barre d by the three year statute of limitations. SeeTenn. Code Ann. § 40- 30-102(1990). In this appeal, the appellant contends th at, "due to the mot ion to recuse and [the] transf er of his petition to a new

court wi thout proper noti ce," the statute of l imitations sh ould not bar his petit ion. 1
The record suppor

ts the trialcourt's findi ng that the peti tion is time- barred. The limitations period on the appel lant's clai ms began to run on November 6, 1989. See Tenn. Code Ann. § 40- 30-102 (repeal ed 1995). Thus, the appellant had three year

s from this date i n which to file a cogni zable clai m for postconv ict ion rel ief. 2 Tenn. Code Ann. § 40-30 -102. The petition in the inst ant case was filed on April 4, 1995, well past the three year statute of li mitations; thus , the3

appellant is "b arred" from seeki ng post-conviction rel ief.
Notwithstanding the fact that the petition is time-barred, the appe llant fails to state a const itutionally cogniz able claim for r

elief under the Post-Convi ction Procedure Act. See Tenn. Code Ann. § 40-30 -105 (1990). The release eligibil ity date i s the earliest date an inmate convicted of a felony is eligi ble for parole and is dependant upon numerous factors. No constitutional right exi sts to be released at t he earliest r elease elig ibility

date. See Depew v . State , No. 03C01-9504-CR-00116 (Te nn. Crim. App. at Knoxville, Aug. 21, 1995).

Pursuant to Rul e 20, Rules of the C ourt of Crimina l Appeals, we affirm the judgment of the tr ial court.

____________________________________ DAVID G. HA YES, Judge

CONCUR:

______________________________ JERRY L. SMI TH, Jud ge

_____________________________ THOMAS T. W OODALL , Judge