1

Although an additional conviction was listed in the plea agreement, only six judgments were included in the

technical record. 

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs February 5, 2002

ANDRE WILSON v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-25387 Chris Craft, Judge

No. W2001-02442-CCA-R3-PC - Filed April 17, 2002

On November 27, 1995, the Petitioner, pursuant to a negotiated plea agreement, pleaded guilty to

six counts of aggravated robbery. The trial court sentenced the Petitioner to eighteen years

incarceration for each count, to be served concurrently with each other and with a 1993 federal

sentence of 137 months for armed bank robbery. On July 19, 2001, the Petitioner filed a petition for

post-conviction relief and/or a writ of coram nobis based on the decision of federal authorities not

to award him credit for the time he served in state custody. The post-conviction court denied relief

based on the statute of limitations. The Petitioner now appeals, arguing that the post-conviction

court erred in denying him post-conviction relief. Finding no error, we affirm the judgment of the

post-conviction court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which DAVID H. WELLES, J.,

joined. DAVID G. HAYES, J., filed a dissenting opinion.

Andre Wilson, Pro Se, Memphis, Tennessee, the Appellant.

Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney General;

William L. Gibbons, District Attorney General; and James A. Wax, Jr., Assistant District Attorney

General for the Appellee, State of Tennessee.

OPINION

On November 27, 1995, the Petitioner, Andre Wilson, pursuant to a negotiated agreement,

pleaded guilty as a Range II, multiple offender to six counts1 of aggravated robbery, a Class B

felony. As part of the negotiated plea agreement, the Petitioner was sentenced to eighteen years
2

The Petitioner was convicted on June 25, 1993 in the United States District Court for the Eastern District of

Arkansas for armed bank robbery, a violation of 18 U.S.C. § 2113(d). The Petitioner was sentenced to a term of 137

months incarceration. The federal judgment and commitment order were silent as to the relationship to any forthcoming

action by the State of Tennessee. 

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incarceration for each count in the Tennessee Department of Correction, to be served concurrently

with each other and with his federal sentence.2 On January 26, 1999, the Petitioner was released on

parole from the Tennessee Department of Correction and taken into federal custody for the service

of his federal sentence. 

On July 19, 2001, the Petitioner filed a petition for post-conviction relief and/or writ of

coram nobis based on the decision of federal authorities not to award him credit for the time he

served in state custody. In his petition, the Petitioner argued that he was denied due process of law

as his original plea of guilty was not entered voluntarily, knowingly and intelligently. Specifically,

the Petitioner argues that he pleaded guilty based on the agreement that his eighteen-year sentence

would be served concurrently with his federal sentence; however, the federal authorities refused to

award him credit for the time he served in state custody. 

According to the Petitioner, his federal sentence was computed for the first time in March

1999, and that is when he learned that he had not received any credit on his federal sentence for the

time he served in the Tennessee Department of Correction. In his petition, the Petitioner stated that

he delayed filing a petition for post-conviction relief because he “believed that [the] Federal Bureau

of Prisons was the cause of his not receiving credit on his Federal sentence for the time he served

in the State of Tennessee.” The Petitioner stated that he exhausted his grievance remedies through

the Federal Bureau of Prisons and was denied relief. 

The post-conviction court denied relief based on the statute of limitations. In its order

denying post-conviction relief, the post-conviction court noted that because the Petitioner did not

appeal his guilty plea, “it plainly appears that the petition [was] not filed within the statute of

limitations of one year.” The post-conviction court also stated,

It is clear from the facts alleged in the petition that when [the] Petitioner discovered

he was not receiving credit for his Tennessee time, he chose to pursue federal

remedies but did not choose to pursue those available in state court. Assuming the

allegations in his petition to be true, and assuming the applicability of Buford v.

State, 845 S.W.2d 204 (Tenn. 1995), and Sands v. State, 903 S.W.2d 297 (Tenn.

1995), which would toll the statute due to “a later-arising claim,” more than one year

has passed between the time of this alleged discovery, March of 1999, and the filing

of the instant petition [on] July 19, 2001. Therefore, Buford and Sands cannot revive

this late-filed petition.

The Petitioner now appeals, arguing that the post-conviction court erred in denying him postconviction relief. In order to obtain post-conviction relief, a petitioner must show that his or her

conviction or sentence is void or voidable because of the abridgment of a constitutional right. Tenn.
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Code Ann. § 40-30-203. However, a petition must be filed within one year of the date of the final

action of the highest state appellate court to which an appeal is taken or, if no appeal is taken, within

one year of the date on which the judgment became final. Id. § 40-30-202. In this case, the trial

court's judgment of conviction was entered on November 27, 1995. The Petitioner never filed an

appeal from his guilty plea, and the Petitioner did not file a petition for post-conviction relief until

July 19, 2001. Thus, the petition was untimely. 

Although the Petitioner filed his petition outside the one-year limit, he argues that he is

nevertheless entitled to relief because he did not learn of the claim until more than one year after the

final judgment. A “later-arising” claim may toll the statute of limitations. See Seals v. State, 23

S.W.3d 272, 278 (Tenn. 2000); Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995). The following

framework should be considered in determining if the statute should be tolled:

(1)determine when the limitations period would normally have begun to run; (2)

determine whether the grounds for relief actually arose after the limitations period

wouldnormallyhavecommenced;and(3)ifthegroundsare“later-arising,”determineif,underthefactsofthecase,astrictapplicationof

the limitations period would effectively deny the petitioner a reasonable opportunity to present the

claim. 

Sands, 903 S.W.2d at 301. “To determine whether a petitioner was denied a reasonable opportunity

to present a claim, a court must balance the liberty interest in collaterally attacking the constitutional

violations occurring during the conviction process against the State’s legitimate interest in

preventing the litigation of stale and fraudulent claims.” Wright v. State, 987 S.W.2d 26, 28 (Tenn.

1999). 

In this case, the Petitioner was made aware in March 1999 that he had not received credit on

his federal sentence for the time he served in the Tennessee Department of Correction; however, he

did not file a petition for post-conviction relief until July 19, 2001. Even if the statute were tolled

until the claim was discovered, the Petitioner’s petition was not timely. The Petitioner had a

“reasonable opportunity” to present his claim. Id. However, the Petitioner failed to file a petition

for post-conviction relief until more than two years after the discovery that he had not received credit

on his federal sentence for the time he served in the Tennessee Department of Correction.

Accordingly, the judgment of the post-conviction court is AFFIRMED.

___________________________________ 

ROBERT W. WEDEMEYER, JUDGE