1 Although an additi onal convict ion was li sted i n the plea agre em ent, only s ix j udgments were incl uded in t he techn ical rec ord

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### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON Assigned on

Briefs F ebruary 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, pleade d guilty to six counts of aggravated robbery. The trial cour t sentenced the Petitioner to eighteen years incarcera tion for each count, to be served concur rently with each other and with a 1993 fed era l 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 h

im credit for the ti me he ser

ved in state custody. The post-conviction court denied relief based on the statute of limitations. The Petitioner now appeals, arguing tha t the po st-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

R OBERT W. W EDEMEYER , J. , delivered the opinion of the court, in which D AVID H. W ELLES , J., joined. D AVID G. H AYES , J., filed a dissenting opinion.

Andre W ilson, Pro Se , Memphis, Tenness ee, the A ppellant

. Paul G. Summers, Attorney General and Reporter; Kim R. Helper, Assistant Attorney Gen eral; William L. Gibbons , District Attorney General; and James A. Wax, Jr., Assistant District Attorney General for the Appellee, State of Tenne ssee.
OPINION

On Novembe

r 27, 1995 , the Petiti oner, An dre Wilso n, pursua nt to a negotiated

agreem ent, pleaded guilty as a

Range II , multiple o ffende r to six co unts 1 of aggra vated robbery, a Class B felony. As part of the negotiated plea agreement, the Petitioner w as sent enced to eighteen years2 The Peti ti oner was c onvict ed on June 25, 1993 in t he Unit ed Sta tes Dist

ric t Court

for t he East ern Dis tri ct of Arkansas for a rmed bank robber y, a vi olat ion of 18 U.S. C. § 2113(d) . The Pet it ioner was sent

enced t o a te rm of

137 months inca rcer ati on. The f ederal judgment a nd commitment order were si lent as t o the rel ati onship to any f orthc oming action by th e State of T enn essee
. -2- incarceration

for each count in the Tennessee Depa rtment of Correction, to be served

concurr ently witheach oth

er and w ith his federal sentence. 2 On January 26, 1999, the Petitioner was released on parole from the Tennessee Department of Corre ction and taken into federal custody for the service of his federal sentence.

On July 19, 2001, the Petitioner filed a petition for post-convict ion reli ef and/or writ of
coram nobis based on the decision of federal authorities not to award him cr edit for t he 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 agreeme nt that his eighteen-year sentence would be serve d concur

rently with his federal sentence; however, the fe deral authorities refuse d to award him credit for the time he served in state custody. According to the Petitioner, his federal sentence was co m puted for the first time in March 1999, and that

is when he learned that

he had not received any credit on his fede ral sentence for the time he served in the Tennessee Depar tment of Correction. In his petition, the Petitioner stated that he delayed

filing a petition for post-conviction relief because he “be lieved that [the] Federal Bureau of Prisons wa s the cau se of his n ot rece iving cre dit on his Federal sentence for the time he serve d 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-con

viction c ourt den ied relief based on the statute of limitations. In its order denying post-conviction relief, the post-conviction court noted t hat be cause the Petitioner did not appeal his guilty plea, “it plainly appears that the petition [was] not filed within t he statu te 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 c hose to pursue federal remedies but did not cho ose to pur sue those availab le 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. Sta te , 903 S .W.2d 297 (Tenn. 1995), which wou

ld toll the statute due to “a later-arising claim,” more than one yea r has passed between the time of this alleged discovery, March of 1999, and the filing of the instan t petition [ on] July

19, 2001. Therefore, Buford and Sands cannot revive this late-filed petition.

The Petitioner

now appe als, arg uing that th e post-c onviction

court er red in de nying himpostconviction relief. In or

der to obt ain post- convicti on reli ef, a pet itioner must show that his or her conviction or sentence is void or voidable because of the a bridgment of

a constitu

tional rig ht. Tenn.-3-

Code Ann. § 40-30-203. However, a petition must be filed within one y ear of the date of the final action of the hig

hest state appella te court to which an appeal i s taken or , if no app eal is tak en, within
one year of

the date on which the judgment became final. Id. § 40-30-202. In this case, the trial
cour t's judgment of conviction was entered on November 27, 1995. The Petitioner never filed a n appeal from his guilty plea, and the Pe titioner d id not file a petition for post- convicti on relie f until July 19, 2001. Thus, the petition was untimely.

Alt hough the Petitioner filed his petition outside the one-year limit, he argues that he i s neverth eless entitled to relief because he did not learn of the claim until more than one year after the final jud gment. A “later-arising” claim may toll the statute of limitations. See Seals v. Sta te , 23 S.W.3d 272, 278 (Tenn. 2000); Sands v. Sta te , 903 S.W.2d 297, 301 (Tenn. 1995). The following framework should be considered in determining if the statute should be tolled: (1) de termine when the limitations period would normally have begun to run; (2) determine whether

the groun ds for re

lief act u ally aro se after the limitations period would normally have commenced; and (3) if the grounds are “later-arising,” determine if, under the facts of the case, a strict application o

f the limitations period w ould eff ectively deny the petitioner a reasonable opportunity to present the claim. Sands , 903 S.W.2d at 301. “To determine whethe r a petiti oner wa s denied a reasona ble oppor tunity to present a claim, a court mus t balanc e the libe rty inter est in coll aterall

y attacking the constitutional violations occurr

ing during

the convi ction pro cess aga inst the Sta

te’s legi timate 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 Marc h 1999 that he had not received credit on his federa l sentenc e for the

time he se

rved in the Tennessee Department of Correc tion; however, he did not file

a petition for post- convicti on relie f until July 19, 20 01. Even i f the stat ute were tolled until the claim was discovered, the Petitioner’s petition was not timely. The Petitioner had a “reaso nable opp ortunity” 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 ha d not rec eived cr

edit on his federal sentence for the time he ser ved in the Tennessee Department of Correc tion.

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

___________________________________ ROBERT W. WEDEMEYER, JUDGE