# FILED
October 10, 1997 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF CR IMINAL A PPEALS OF TENN ESSEE AT KNOXVILLE JUNE, 1997 SESSION
JAMES R. MILLER, ) ) No. 03C01-9608-CR-00288 Appellant, )

) vs. ) Hamilton County ) STATE OF TENN ESSEE , ) Honorable Douglas A. Me yer, Judge ) Appellee. ) (Post -Conviction)

)

FOR THE APPE LLANT: FOR THE APPELLEE: JAMES R. MILLER, #135058 JOHN KNOX WALKUP South Central Correction al Facility Attorney General & Repor ter Annex XF-134 P.O. Box 279 KENNETH W. RUCKER Clifton, TN 38425-0279 Assistant Attorney Gener al Criminal Justice Div

ision 450 James Robertson Parkwa y Nashville, TN 37243-0493

OPINION FILED: ____________________
AFFIRMED
CURWOOD WITT JUDGE1 Miller did not file a petition for permission to appeal with our

supreme court. 2 OPINION

The petitione r, James R. Miller, appeal s pursuant to Rule 3 of the Tennessee Rules of Appellate Procedure from the trial court’s denial of his “Petition forBreach of Bargaining Agreement.” On March 7, 1996, Miller filed his pro -se p etition in which he alleged that the state had breached his pl ea a greement b y failing to release hi m from confinement when he had served the mandatory thirty percentas a Range I offender. The issue presented for review is whether the trial court correctlydismissed the petition without an evidentiary hearing because it w as barred by the statute

of limitations and because the petitioner requested relief which the trial court had no author ity to grant. We affirm the judgment of the tr ial court.

The petitioner

pled guilty

to the aggravated rape of his minor daughter, ince st, and assault and battery before the Honorable Russell C.Hinson on November

21, 1989. He was sentenced to an effectiv e Range I sentence of eighteen years on March 11, 1990. This cou rt affirmed his sentence in State v. James Robert Miller , No. 1185 (Te nn. Crim. App., Knoxville, Ju ne 18, 1991). 1 On January 14, 1995 , the pet itioner fi led a peti tion for writ of habeas corpu s in the Circuit Court for Wayne County in which he alleged that he was beingillegally and unconstitutionally restrained because the parole board had denied him parol e, that hi s guilty pleas w

ere entered in violati on of his constitutional rig hts, and t hat hi s counsel had been ineffective. The trial court dismiss ed the petition because it failed to state a valid claim for habeas cor pus relief and for lack of subject matte r jurisdiction to treat the petition as one for post-convictionrelief. This court affirmed3

the trial cour t’s judgment. James R. Miller v.State , No. 01CO1-9505-CC-00152 (Tenn. Crim. App., Nashvi lle, March 22, 1992).

Th e pet itioner, acting on his own behalf, filed a document entitl ed “Petition for Breach of Plea Bargaining Agreement” on March 7, 1996 with t he Hamilton County

Criminal Court. In this petition, he alleged that the parole board had violated his c onstitution al 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 receivedineffe ctive assistance of counsel. On March 18, 1996, Judge DouglasE. Meyer treated the peti tion as one for post-convic tion relief and dismissed it without appointment of counsel or a hearing. In his o rder, the trial judge found that the peti tion wa s time barred, that it covered matters previously determined, and that the petitioner had requested relie f whic h the court had no authority to gran t. We nee d not address the latter findings because it is obvious that the statute of limitations bar s this petition.

T he new Post-Convicti on Procedure Act gover ns this petition. Se e Tenn. Code Ann. § 40-30-201 et seq . (Supp. 1996). Effective May 10, 1995, new legislation replaced the prior ac t in i ts entirety. See 1995 Tenn. Pub. Act 207, §§ 1 and 3. Because th is petition wa s fi led in Ma rch of 1996, the most recent legislation repla ced t he former three-year limitation period with a one- year limitation: (a) . . . [A] person in cus tody under a senten ce of a court of this state must petition for post-conviction rel ief under this part within one (1)

year of the date of the final action of the highest state appellate c ourt to w hich 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 barre d. The statute of limitation shall not be tol led for any reason. .

. (b) No court shall have jurisdi ction to consider a petiti on filed after such time unless:4 (1) The claim in the petition is based upon a final ruling of an appellate court establish ing a constitutional right that was not recogniz

ed as existing at

the time of trial, if retrospective appli cation ofthat right is requir ed. Such petition must b e 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 pet iti on is based upon new scientific evidence establ ishi ng that such petitioner is actuallyinnocent of the offense or of fenses for which the petitioner was conv icted; or (3) The c laim as serted in the petition seeks relief from a sentence that was enhanced b ecause o

f a p reviousconviction and such conv iction in the cas e i n which the claim is asserted was not a guilty plea with an agreed sentence, and the previous convi ction 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 inv

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

Because the convicti on in this c ase became

final on June 18, 1991, it was barred by the former three-year stat ute, 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 pr eviously expir

ed post-conviction clai ms. Arnold Carter
v. State , --- S.W.2d ---, No. 03-S-01-9612-CR-00117 (Tenn., Knoxvi lle, Sept. 8, 1997). Moreove r, th e petitioner before us has presented no claim which would entitle him to untimely r elief. See Tenn. Code Ann. § 40-30-20 6(g) (Supp. 1996); Burford v. State , 8445 S.W.2d 204 (Tenn. 1992). His claims are barred. The trial court did not err in dismissi ng his petition. Tenn. Code Ann. § 40-30-206(b) (Supp.2 We also note that petitioner’s claim that hi s plea bargain has been

breached by the state’s fail ure to grant him parole as of his release eligibi lity date is without merit. Par

ole is a privileg e and not a right. Tenn. Code Ann.§§ 40-28- 117(a) and 40-35-503(b). R elease eligibility

for a felon establishes only eligibility for release and is not an absolut e right. Carl Ed Leming v. Stat e , No. 03C01- 9603-CC-00119 slip op. at 3.(Tenn. Crim. App., Knoxv ille, April 22, 1997). Moreover, parole board decisions are review able only by a petiti on for writ of certiorari which must be filed within six ty days, Thandiwe v. Traughber, 902 S.W.2d 802,804 (Tenn. Crim. App. 1994), and the action of the p arole board in granting or denyin g parole is not revi ewable 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 W ITT, Judge
CONCUR:

___________________________ JOHN H. PEAY, Judge

___________________________ JOSEPH M. TIPT ON, Judge