# FILED
May 26, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE MARCH 1999 SESS ION

CHARLES BOB O, * C.C.A. 03C01-9802-CR-000 64 Appellant, * WASHINGTON COUN TY
vs. * Hon. R. Jerry Beck, Ju dge STATE OF TENN ESSEE, * (Post-Conviction) Appellee. *
For Appellant : For Appellee : Deborah Black Huskins John Knox Walkup Office of District Public De fender Attorney General and Repor ter 142 East Market Street 425 Fifth Avenue North Johnson City, TN 37601 Nashville, TN 37243-0493 Charles Bobo, #129349 Ellen H. Pollack P.O. Box 5000 Assistant Attorney Gener al Mountain City, TN 37683 Criminal Justice Div ision 425 Fifth Avenue North John E. Herbison Nashville, TN 37243-0493 2016 Eighth Avenue South Nashville, TN 37204

OPINION FILED:

AFFIRMED

NORMA MCGEE OGLE, JUD GE2 OPINION The petitioner, Charles Bobo, appeals the Washington County Criminal Court’s dis missal of his petition for post-conviction relief. On ap peal, the petitioner essentially

raises the following

issues for our considerati on: 1. Whether the applicable statute of limitations bars the petitioner’s claims that the jury instructions in his cas

e violated the holdings of the United St ates Supreme Court in Sandstrom v. Montana , 442 U.S. 510, 99 S.Ct. 2450 (1979), and Cage v. Louisiana , 498 U.S. 39, 111 S.Ct. 328 (1990); and 2. Whether the Tenn essee Supreme Court’s decision in State v. B rown , 836 S.W.2d 530 (Tenn. 1992), should be applied retroactively to the petitioner’s case. Following a rev

iew of the record and the par ties’ briefs, we affirm the j udgment of the trial court.
I. Factual Background

On June 16, 1980, the petitioner w as convicted in the Cr

iminal Court of Washington County of premeditated first degr ee murder. This court affirmed the appellant’s conviction

and sentence on direct appeal. State v. Bobo , No. 150 (Tenn. Crim. App. at Knoxvi lle), perm. to appeal denied , (Tenn. 1981). On May 10, 1996, the petitioner filed pro se a pe tition for post-conviction relief in the Criminal Court of Washington County. The post-con viction court appointed the District Public Defender to represent the petiti oner. The Public Defender filed an amended petition on December 12, 1996. On January 7, 1998, the post-convicti on court denied the petitioner relief with out affording him an evidentiar y hearing. The court c oncluded that the petitioner’s clai ms pursuant to Sandstrom , 442 U.S. at 510, 99 S.Ct. at 2450, and Cage , 498 U.S. at 39, 111 S.Ct. at 328, were barred by the applicable statute of limitations. With respect to the petitioner’s claim pursuant to Brown , 8363 S.W.2d at 530, the court concluded that, although the issue was not time-bar red, Brown could not be applied retroactively to the petiti oner’s case and did not implicate the petitioner’s constitutional rights.

On appeal, the petitioner w as represented by an attorn ey serving pursuant to a contract wi th the District Public

Defenders’ Conference. The petitioner’s attorney submitted a brief pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396 (1967), and si multaneously submitted a Moti on to Withdraw due to the frivolous nature of the appea l. This court granted the Motion to Withdraw and accorded the petitioner time w ithin which to file additional arguments. The petitione r submitted pro se an amendment to the Anders brief. The District Publi c Defender for Washington County filed an additional amendment to the Anders brief. This court’s statement of the petitioner ’s issues on appeal encompasses the arguments raised in all t hree bri efs submitted on h is behal f.
II. Analy

sis The petitioner’s conviction became final on December 31, 1981. Effective July 1, 1986, the legislature amended the Post-Conviction Proce dure Act of 1967 by enacting a three y ear statute of limitations appli cable prospectively to petitions for post-convi ction relief. Tenn. Code. Ann. § 40- 30-102 (1986). Prior to that date, petitions for post-co nviction relief wer e not subject to any statute of limitations. Carter v. State , 952 S.W.2d 417, 418 (Tenn. 1997); Watt v. State , 894 S.W.2d 307, 308 (Tenn. Crim. App. 1994). Thus, any petitioner whose judg ment became final on or before July 1, 1986, had until July 1, 1989, to file a petition for post-conviction reli ef. Carter , 952 S.W.2d at 418; State v. Masucci , 754 S.W.2d 90, 91 (Tenn. Code. Ann. 1988); Abston v. State , 749 S.W.2d 487, 488 (Tenn. Crim. App. 1988). Effective May 10,1995, the legislature enac ted the Post-Conviction1

The petitioner as serts that this cour t should neverthel

ess address the pe

titioner’s claims,

because the supreme cour

t incorrectly inte

rpreted the Post-

Conviction Procedu

re Act of 1995. Suf

fice it to say that this court is bound by the decision of our supreme court. Thompson v. State, 958 S.W.2d 156, 173 (Tenn. Crim. App.), perm. to appeal denied , (Tenn. 1997). 4 Procedure Act of 1995. The 1995 Act pr ovided a one year statute of limitations for post-conviction petitions. Tenn. Code. Ann. § 4-30-202(a) (1997 ). However, in Carter v. State , 952 S.W.2d 417, 418 (Tenn. 1997), our supreme court he ld that “petitioners for whom the s tatute of limitations expir ed prior to the effective date of the new Act, i.e., May 10, 1995, do not have an additional year in which to file petitions for post-convi ction relief.” 1 Accordingly, in the petitioner’s case, the applicable three year s tatute of limitations expir ed on July 1, 1989.

However, in Burford v. State , 845 S.W.2d 204, 208 (Tenn. 1992), the supreme court held that, in certain circumstances, due process proh ibited strict application of the three year statute of limitations. In Sands v. State , 903 S.W.2d 297, 301 (Tenn. 1995), the supreme cour t explained that, in ev

aluating a Burford claim, courts are required to utilize a three-step process:

1. Determine when the limita tions period would normally hav

e begun to run. 2. Determine whether the g rounds for relief actually arose after the l imitations period would normally hav

e commenced. 3. If the gr

ounds ar e later -arisi ng, dete rmine i f, under the facts of the case, a strict application of the limitations period would effectively deny the petitioner a reasonable opportunity

to present t he claim. In any case, if a court’s decision announced a new g round for relief, a petitioner w as required to file his cl aim within three year s of the court’s decision. O’Donne ll v. State , 905 S.W.2d 951, 953 (Tenn. Crim. App. 1993). Simil arly, under the current statute, a court may consi der a petition for post-conv iction relief outside the st atute of limitations if the claim is filed within one year

of a court’s ruling est

ablishing a new5 constitutional right no

t recognized at the ti me of trial. Tenn. Code. Ann. § 40-30- 202(b) (1997). See generally Black v. State , N o. 03 C0 1- 97 10 -C C- 00 46 6, 19 98 WL 379977, at **1-3 (Tenn. Crim. App.at Knoxville), perm. to appeal denied , (Tenn. 1998).

In Sands , 903 S.W.2d at 302, our supreme court concluded that a claim pursuant to Sandstrom , 442 U.S. at 510; 99 S.Ct. at 2450, was not a laterarising ground for Burford purposes. We conclude that the petitioner i n this case, as in Sands , was required to assert his Sandstrom claim prior to June 1, 1989. Because he did not do so, his cl aim is time-barred. See also Morris v. State , No. 03C01-9708-CR-00351, 1998 W L 389023, at *3 (Tenn. Crim. App. at Knoxville, July 14, 1998), perm. to appeal denied , (Tenn. 1999); Pomeroy v. State , No. 01C01- 9610-CR-00424, 1998 WL 4723, at *2 (Tenn. Crim. App.at Nashville), perm. to appeal denied , (Tenn. 1998).

With respect to the petitioner’s claim pursuant to Cage v. Louisiana , 498 U.S. at 39, 111 S.Ct. at 328, he has failed to include in the r ecord on appeal the challenged jury ins

truction. In any case, this court has previous ly questioned whether the Supreme Court’ s decision in Cage established a new consti tutional rule. Smith v. State , No. 03C01-9312-CR-00 393, 1994 WL 330132, at *1 (Tenn. Cr

im. App. at Knoxville, J uly 1, 1994)(“[i]t i s doubtful that Cage v. Louisiana ... created a ‘new’ rule of law” under Burford and Sands ). See also Culp v. State , 02C01-9608- CC-00268, 1997 WL 414397, at *3 (Tenn. Crim. App. at Jackson, July 24, 1997)(“[w]e ... do not bel ieve that the Cage and Victor line of cases establishes a new constitutional rul e for purposes” of the Post-Conv iction Procedure Act of 1995). In any event, the petiti oner filed the present petition approximately six years after the decision in Cage v. Louisiana . Thus, e ven if Cage created a new rule of2 The Office of the District Public Defender quoted the challenged instruction in its brief

on behalf of the petitioner, citing a portion of the trial transcript not included in the record currently befor

e this court. 6 constitutional law, th e petitioner has failed to rai se the issue in a timely manner. See, e.g., Boyd v. State , No. 02C01-9512-CR-00392, 1997 WL 686262, at *4 (Tenn. Crim. App. at Jackson, Nov ember 5, 1997), perm. to appeal denied , (Tenn. 1998); State v. Johnson , No. 01C01-9610-CR-00 442, 1997 WL 738586, at *8 (Tenn. Cr

im. App. at Nashville, Nov

ember 25, 1997), perm. to appeal denied , (Tenn. 1998).
Finally, with respect to the petitioner’s claim under State v. B rown , 836 S.W.2d at 530, the pe titioner has again failed to include the challenged instruction in the record before this court. 2 In any case, this cour t has repeatedly held that Brown did not announce a new constit utional principle and retr oactive application is

not permissible. Thompson , 958 S.W.2d at 173; Loften v. State , 898 S.W.2d 246, 249 (Tenn. Crim. App. 1994); Dyer v. State , N o. 03 C0 1- 96 01 -C R- 00 02 1, 19 97 WL 33623, at **3-4 (Tenn. Crim. App.at Knoxville, Januar y 28, 1997); Rines v. State , No. 03C01-9606-CC-00210, 1997 WL 33654, at *3 (Tenn. Crim. App. at Knoxvi lle, January 28, 1997); Drew v. State , No. 02C01-9507-CC-00180, 1996 WL 39367, at **1-2 (Tenn. Crim. App. at Jac kson, January 31, 1996); Spight v. State , No. 02C01- 9502-CR-00034, 1995 WL 686118, at *7 (Tenn. Crim. Ap p. at Jackson, November 15, 1995). Moreover, i n Drew , No. 02C01-9507-CC-00180, 1996 WL 39367, at *2, the court explicitly

rejected the petitioner’s contention that retroactiv e application of Brown should be considered on a case by case basis. “The doctrine of stare de cisis requires that this [c]ourt follow the unwavering prior precedent.” Spight , No. 02C01- 9502-CR-00034, 1995 WL 686118, at *7.

For the foregoing reasons , we affirm the judgment of the tri al court.7 Norma McGee Ogle, Judge Gary R. Wad e, Presiding Judge

Cornelia A. Clark, Special Judge