FILED

October 10, 1997

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

JUNE, 1997 SESSION

JAMES R. MILLER, )

) No. 03C01-9608-CR-00288

Appellant, )

)

vs. ) Hamilton County

)

STATE OF TENNESSEE, ) Honorable Douglas A. Meyer, Judge 

)

Appellee. ) (Post -Conviction)

)

FOR THE APPELLANT: FOR THE APPELLEE:

JAMES R. MILLER, #135058 JOHN KNOX WALKUP

South Central Correctional Facility Attorney General & Reporter

Annex XF-134 

P.O. Box 279 KENNETH W. RUCKER

Clifton, TN 38425-0279 Assistant Attorney General

Criminal Justice Division

450 James Robertson Parkway

Nashville, TN 37243-0493

OPINION FILED: ____________________

AFFIRMED

CURWOOD WITT 

JUDGE
1

 Miller did not file a petition for permission to appeal with our

supreme court. 

2

OPINION

The petitioner, James R. Miller, appeals pursuant to Rule 3 of the

Tennessee Rules of Appellate Procedure from the trial court’s denial of his “Petition

for Breach of Bargaining Agreement.” On March 7, 1996, Miller filed his pro-se

petition in which he alleged that the state had breached his plea agreement by

failing to release him from confinement when he had served the mandatory thirty

percent as a Range I offender. The issue presented for review is whether the trial

court correctly dismissed the petition without an evidentiary hearing because it was

barred by the statute of limitations and because the petitioner requested relief which

the trial court had no authority to grant. We affirm the judgment of the trial court.

The petitioner pled guilty to the aggravated rape of his minor daughter,

incest, and assault and battery before the Honorable Russell C. Hinson on

November 21, 1989. He was sentenced to an effective Range I sentence of

eighteen years on March 11, 1990. This court affirmed his sentence in State v.

James Robert Miller, No. 1185 (Tenn. Crim. App., Knoxville, June 18, 1991).1 On

January 14, 1995, the petitioner filed a petition for writ of habeas corpus in the

Circuit Court for Wayne County in which he alleged that he was being illegally and

unconstitutionally restrained because the parole board had denied him parole, that

his guilty pleas were entered in violation of his constitutional rights, and that his

counsel had been ineffective. The trial court dismissed the petition because it failed

to state a valid claim for habeas corpus relief and for lack of subject matter

jurisdiction to treat the petition as one for post-conviction relief. This court affirmed
3

the trial court’s judgment. James R. Miller v. State, No. 01CO1-9505-CC-00152

(Tenn. Crim. App., Nashville, March 22, 1992). 

The petitioner, acting on his own behalf, filed a document entitled

“Petition for Breach of Plea Bargaining Agreement” on March 7, 1996 with the

Hamilton County Criminal Court. In this petition, he alleged that the parole board

had violated his constitutional rights and breached the plea agreement when it

denied him parole after he had reached his release eligibility date. He also alleged

that he had received ineffective assistance of counsel. On March 18, 1996, Judge

Douglas E. Meyer treated the petition as one for post-conviction relief and

dismissed it without appointment of counsel or a hearing. In his order, the trial

judge found that the petition was time barred, that it covered matters previously

determined, and that the petitioner had requested relief which the court had no

authority to grant. We need not address the latter findings because it is obvious

that the statute of limitations bars this petition.

The new Post-Conviction Procedure Act governs this petition. See

Tenn. Code Ann. § 40-30-201 et seq. (Supp. 1996). Effective May 10, 1995, new

legislation replaced the prior act in its entirety. See 1995 Tenn. Pub. Act 207, §§

1 and 3. Because this petition was filed in March of 1996, the most recent

legislation replaced the former three-year limitation period with a one-year limitation:

(a) . . . [A] person in custody under a sentence of a

court of this state must petition for post-conviction relief

under this part within one (1) 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 (1)

year of the date on which the judgment became final, or

consideration of such petition shall be barred. The

statute of limitation shall not be tolled for any reason. .

.

(b) No court shall have jurisdiction to consider a petition

filed after such time unless:
4

 (1) The claim in the petition is based upon a final

ruling of an appellate court establishing a constitutional

right that was not recognized as existing at the time of

trial, if retrospective application of that right is required.

Such petition must be filed within one (1) year of the

ruling of the highest state appellate court or the United

States Supreme Court establishing a constitutional right

that was not recognized as existing at time of trial;

 (2) The claim in the petition is based upon new

scientific evidence establishing that such petitioner is

actually innocent of the offense or offenses for which

the petitioner was convicted; or

 (3) The claim asserted in the petition seeks relief

from a sentence that was enhanced because of a

previous conviction and such conviction in the case in

which the claim is asserted was not a guilty plea with an

agreed sentence, and the previous conviction has

subsequently been held to be invalid, in which case the

petition must be filed within one (1) year of the finality of

the ruling holding the previous conviction to be invalid.

Tenn. Code Ann. § 40-30-202 (Supp. 1996).

Because the conviction in this case became final on June 18, 1991,

it was barred by the former three-year statute, see Acts 1986, ch. 634 §1, Tenn.

Code Ann. § 40-30-102 (1990) (repealed May 10, 1995), as well as by the current

one-year statute. 

Our supreme court recently held that the Post-Conviction Procedure

Act of 1995 did not revive previously expired post-conviction claims. Arnold Carter

v. State, --- S.W.2d ---, No. 03-S-01-9612-CR-00117 (Tenn., Knoxville, Sept. 8,

1997). Moreover, the petitioner before us has presented no claim which would

entitle him to untimely relief. See Tenn. Code Ann. § 40-30-206(g) (Supp. 1996);

Burford v. State, 8445 S.W.2d 204 (Tenn. 1992). His claims are barred. The trial

court did not err in dismissing his petition. Tenn. Code Ann. § 40-30-206(b) (Supp.
2 We also note that petitioner’s claim that his plea bargain has been

breached by the state’s failure to grant him parole as of his release eligibility date

is without merit. Parole is a privilege and not a right. Tenn. Code Ann. §§ 40-28-

117(a) and 40-35-503(b). Release eligibility for a felon establishes only eligibility

for release and is not an absolute right. Carl Ed Leming v. State, No. 03C01-

9603-CC-00119 slip op. at 3. (Tenn. Crim. App., Knoxville, April 22, 1997). 

Moreover, parole board decisions are reviewable only by a petition for writ of

certiorari which must be filed within sixty days, Thandiwe v. Traughber, 902

S.W.2d 802,804 (Tenn. Crim. App. 1994), and the action of the parole board in

granting or denying parole is not reviewable if done according to law. Tenn.

Code Ann. § 40-28-115(c)(1990). Brigham v. Lack, 755 S.W.2d 469, 471 (Tenn.

Crim. App. 1988). 

5

1996). As a result, we find no error of law requiring reversal. The lower court’s

judgment is affirmed.2

For the reasons set forth above, we conclude that the trial court

properly dismissed the petition at issue in this appeal. We affirm the judgment of

the trial court.

__________________________

CURWOOD WITT, Judge

CONCUR:

___________________________

JOHN H. PEAY, Judge

___________________________

JOSEPH M. TIPTON, Judge