1



### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON
MARIO GATES, P RO 

### S E 

### v. STATE OF TEN NESSEE Appeal from the Criminal Court for Shelby County No. P-17138 James C. Beasley, Jr., Judge

No. W2002-02873-CCA-R3-PC - F iled December 31, 2003

This matter is before the Court upon the State’s motion to affirm the judgment of the trial court by order pursuant to Rule 20, Rules of the Court of Criminal Appeals. The Petitioner appeals the trial court’s denial of his motion to reopen his petition for post-conviction relief. The Petitioner fails to assert a cognizable ground for re opening his petition. Accordingly , the State's motion is granted and the judgment of the trial court is affirmed.

Tenn. R. App. P. 3; Judgment of the Trial Court Affirmed
D AV ID G. H AYES , J., delivered the opinion of the cour t, in which J OE G. R ILEY and J OHN E VERE TT W ILLI AMS , joined. Mario Gates, pro se. Paul G. Summers, Attorney Gene ral & Reporter; Je nni fer L. Bledsoe , Assistan t Attorne y General , for the appellee, State of Tennessee.

MEMORAN

DUM OP

INION

On August 30, 1994, Petitioner entered a guilty plea to one count

of aggravated a ssault, seven counts of aggravated robbe

ry, four c ounts of criminal attempt to commit murder in the first degree, one count of especially

aggravated robbe

ry, one count of

especially a

ggravated kidnapping , andone count of theft of property

over $10,000. For these offenses, the trial cour t imposed an e ffective sentence of fifty

years in the D epartment of Correction. No direct appeal wa s taken. On July 2, 1996, Petitioner filed, pro se , a petition for post-conviction relief, alleging2

inter alia the inef

fective ness of tr ial couns el. The trial court, on July 11, 1996, summarily dismissed the petition as time-barred. See gen erally Tenn. Code Ann. § 40-30-202(a)(1995). Su bs eq ue nt ly, on November 1, 2002, Petitioner filed, with the assistant of a writ writer, a document captioned as a motion to reopen his post-conviction petition. As grounds suppor ting the m otion to reopen, Petitioner al le ge s t ha t t ri al co un se l w as in ef fe ct iv e. Ad di ti on al ly, Petitioner avers that his sentence is illega l and subject to bein g vaca te d. Petitioner alleges that the statute of limitations should not bar his petition as he depended on state appointed representation to reserve a c ertified question of law for appeal. He, theref ore, ar gues tha t a state agent impeded his ability to seek post-conviction relief. On November

5, 2002, the trial court summarily dismissed the motion to reopen, finding that the petition was time-barred and that Pet itioner failed to assert a viable ground for w aiving the statute of limitations

.
In 1995, the legislature reduced the statutory period for

filing post-conviction petitions from three years to one

year. Tenn.Code Ann. § 40-30-202(a) ( 1995 Supp.) . As a re sult, the new PostConviction Procedure Act governed the original petition. Because the previous three-y ear statute of limitations had not expi

red at the time the

new Act w ent into effect, the Petitio ner’s r ight topetition for post-conviction relief survived. See Carter v . State , 95 2 S.W.2d 417, 420 (Tenn. 1997). Therefore, the Petitio ner had u ntil May 10, 1996, one y

ear from the effective date of the new Act, to file for post-conviction relief. Compiler's Notes, Tenn. C ode Ann. § 40-30-201 (1996 Supp.). Petitioner filed his first petition on July 2, 1996, two months after the statute had run.

A subsequent p etition, the petition presently before this Court, was filed on November 1, 2002. We fir st ack nowle dge that only one petition for post-conviction relief may be filed under the 1995 Post-Conviction Procedure Act. See Tenn. Code Ann. § 40-30-202(c) ( renumbered at Tenn. Code Ann. § 40-30-102(c) (2003)). Thus, the petition may be summarily

dismissed on this ground. Id. Notwithstanding, the Post-Conviction Procedure Act does con template the filing of a motion

to reopena first pe

tit io n under limited circumstances. See Tenn. Code Ann. § 40-30-217(a) ( renumbered at

Tenn. Code Ann. § 40-30-117(a)(2003)).

A motion to reope n a petition for post-conviction relief may be filed only under

limited circumst ances. The first exception for retrospective application of a constitutional right is not raised in the petitioner's latest filing. See Tenn. Code Ann. § 40-30-217(a)(1). The sec ond e xception for new scientif

ic evidence es t ablishing actual innocence is not implicated. Id. § 40-30- 217(a)(2). Sentence enhancement, which is the third exception , is not an issue. Id. § 40-30-217(a)(3). The fourth exception deals with "facts underly ing the claim [which], if true, would establish by c lear and convincing evidence that the petitioner is entitled t o have the conviction set aside or the sentence reduced." Id. § 40-30-217(a)(4). Thus , none of the exceptions or limited circumstances for reopening applies in this instanc e. Absen t an appli cable e xception f

or reope ning his first postconviction petition, the Petitioner is not entitled to consideration of the most recent petition.3

Next, even if Petitioner properly claimed a cognizable ground for r eopening his petition under § 40-30-217(a), this Court would be without jurisdiction to entertain such a n appeal. An appeal of the tri al court ’s denia l of a motio n to reopen must be filed within ten days of the lower cour t's ruling , an application in the Court of Criminal A

ppeals seeking permissio n to appea

l. See Tenn. Code Ann. § 40-30-217(c)(1997) (emphasis added); Te nn. Sup. Ct. R. 28 § 10(b). T he application shall be a ccompani ed by copies of all the documents filed by both parties in the trial court and the order denying the motion. Tenn. Cod e Ann. § 40 -30-217( c)(emphasis add ed); s ee also Tenn. Sup. Ct. R. 28 § 10(b). In the present case , Petitioner has failed to comply with the statutory require ments for seeking appellate review . Specifically, Petitioner fa iled to time ly f

ile his applica tio n, Petition er failed to file his application in this Court, and Petitioner failed to attach document s filed by the

parties in the trial court

and the order of the trial court deny ing the motion. The failure of

a petitioner to comply with statutory requirements governing re view of a denial of a motion to reopen deprives this Court of jurisdiction to entertain such matter. John Harold Williams, Jr. v. State

, No. W1999-01731-CCA-R3-PC (Tenn. Crim. App. at Jackson, Mar. 23, 2000), perm. to appeal denied, (Tenn. Oct. 16, 2000). Neither the Post-Conviction Procedure Act nor the Rules of the Supreme Court permit this Courtto suspend the statutory require ments. Id. Accord

ingly , this Court is without jurisdiction to entertain this matter.

Accord ingly , it is ORDERED that the State’s motion is GRANTED. The judgment of the trial court is AFFIRMED in ac cordance with Rule 20, Rules of the Court of Criminal Appeals.



### _________________

_________________

__ DAVID G. HAYES, JUDGE