FILED

September 09, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

AUGUST SESSION, 1997

JOHNNY LEE MUKES, )

) No. 02C01-9610-CR-00320

Appellant )

) SHELBY COUNTY

vs. )

) Hon. JOHN P. COLTON, JR., Judge

STATE OF TENNESSEE, )

) (Post-Conviction)

Appellee )

For the Appellant: For the Appellee:

JOHNNY LEE MUKES, PRO SE CHARLES W. BURSON

Reg. No. 12375-076 Attorney General and Reporter

F.C.I. Memphis

P. O. Box 34550 (Beale-A) MICHAEL J. FAHEY, II

Memphis, TN 38184-0550 Assistant Attorney General

Criminal Justice Division

450 James Robertson Parkway

Nashville, TN 37243-0493

WILLIAM GIBBONS

District Attorney General

ROBERT CARTER

Asst. District Attorney General

Criminal Justice Complex

Suite 301, 201 Poplar Street

Memphis, TN 38103

OPINION FILED: 

AFFIRMED

David G. Hayes

Judge
1Although the post-conviction petition included in the record before this court only attacks

the appellant's 1984 convictions for aggravated assault, the argum ent presented by both parties in

their respective briefs encompasses all prior felony convictions of the appellant, infra note 2, used

to enhance his sentences for his subsequent federal convictions. The trial court noted that each

of the appellant's prior state convictions were challenged in separate post-conviction petitions, but

were assigned the same docket number when filed. Accordingly, the court addressed the

appellant's collective challenges in its denial.

2

The federal presentence report included in the record indicates that the following prior

felony convictions of the appellant were used for federal sentencing enhancement purposes:

03/01/76 Robbery

04/24/80 Carrying a Pistol

07/24/84 Aggravated Assault

07/24/84 Aggravated Assault

03/05/87 Possession Controlled Substance w/ Intent

03/05/87 Possession Controlled Substance w/ Intent

03/05/87 Convicted Felon in Possession of Firearm

01/12/88 Possession Controlled Substance w/ Intent

3

In accordance with Federal Sentencing Guideline, the appellant received three criminal

history points for his 1976 conviction for robbery; two criminal history points for his 1980 conviction

for carrying a pistol; three criminal history points for his 1984 convictions for aggravated assault;

2

OPINION

The appellant, Johnny Lee Mukes, appeals the order of the Shelby

County Criminal Court dismissing his pro se petition for post-conviction relief. In

this appeal, the appellant raises numerous issues which can collectively be

summarized as challenging the trial court's ruling that the petition for postconviction relief is time barred.1

 

After a review of the record, we affirm the lower court's denial of postconviction relief. 

Between March 1, 1976, and January 12, 1988, the appellant entered

guilty pleas to and was convicted of numerous felonies in the State of

Tennessee.2 In 1990, the appellant was convicted in the federal district court for

the Western District of Tennessee of possession of a controlled substance with

intent to distribute, carrying a firearm in a drug trafficking offense, and being a

felon in possession of a firearm. His prior state convictions, the subject of this

appeal, were subsequently used to enhance the sentences imposed for these

federal convictions.3

 The appellant is currently incarcerated at the Federal
three criminal history points for his 1987 convictions for possession with intent to sell and being a

felon in possession of a firearm; and three criminal history points for his 1988 conviction for

possession with intent to sell. 28 U.S.C.A. § 994(a)(1) (W est 1993); Federal Sentencing

Guidelines §§ 4A1.2 (1995).

4

The appellant alleges that his guilty pleas failed to comply with the constitutional

mandates of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969), and State v. Mackey, 553

S.W.2d 337 (Tenn. 1977). Specifically, he contends that he was not informed that the resulting

convictions from these guilty pleas could be considered for subsequent sentencing enhancement. 

Even if the appellant's claim was not time barred, he would not have a cognizable claim for postconviction relief. Boykin requires the intentional relinquishm ent or abandonment of the accused's

right against self-incrimination, the right to confront one's accusers, and the right to a trial by jury. 

Id. The allegation made by the appellant, however, suggests a violation of the mandates of

Mackey, 553 S.W .2d at 341 and State v. McClintock, 732 S.W .2d 268, 273 (Tenn. 1987), not

Boykin. Failure to give advice not required by Boykin, i.e.,failure to inform the accused that the

resulting judgment of conviction could be used in the future to enhance punishment for

subsequent convictions, is not a proper ground for post-conviction relief because the omission

does not, by itself, rise to the level of constitutional error. See Hatmaker v. State, No. 03C01-

9506-CR-00169 (Tenn. Crim . App. at Knoxville, Oct. 18, 1996), perm. to appeal denied, (Apr. 14,

1997) (citing Tenn. Code Ann. § 40-30-105; State v. Prince, 781 S.W .2d 846. 853 (Tenn. 1989);

State v. Neal, 810 S.W .2d 131, 140 (Tenn. 1991)).

5

The appellant had until July 1, 1989; April 5, 1990; and January 13, 1991, respectively, to

file an appropriate petition for post-conviction relief.

3

Correctional Institution in Memphis, Tennessee. On July 9, 1996, the appellant

filed a pro se petition for post-conviction relief alleging that his guilty pleas

entered for his respective state convictions were not knowingly and voluntarily

entered.4 On July 30, 1996, the trial court, without an evidentiary hearing,

dismissed the petition as being barred by the statute of limitations. 

The record supports the trial court's finding that the petition is time-barred.

The limitations period on the appellant's claims began to run on July 1, 1986, for

convictions entered prior to this date, on April 5, 1987, for his convictions for

possession of a controlled substance with intent and felon in possession of a

firearm, and on February 12, 1988, for his conviction for possession of a

controlled substance with intent. See Tenn. Code Ann. § 40-30-102 (repealed

1995); see also Passarella v. State, 891 S.W.2d 619, 624 (Tenn. Crim. App.),

perm. to appeal denied, (Tenn. 1994). Thus, the appellant had three years from

these respective dates in which to file a cognizable claim for post-conviction

relief.5

 Tenn. Code Ann. § 40-30-102. The petition in the instant case was filed

on July 9, 1996, well past the three year statute of limitations; thus, the appellant

is "barred" from seeking post-conviction relief. 
4

Nonetheless, the appellant makes several arguments in support of his

position that his petition is not time-barred. First, the appellant contends that he

was not "in custody" at the time of filing, and, therefore, the three year statute of

limitations does not apply to him. A person confined to a federal penitentiary is

considered "in custody" within the meaning of Tenn. Code Ann. § 40-30-102 if

the possibility exists that a state conviction has placed a restraint on his liberty. 

See Passarella, 891 S.W.2d at 622. The appellant's Tennessee convictions

were subsequently used to enhance his current federal sentence, and, thus,

placed a "restraint" upon his liberty. This issue is without merit. 

Next, the appellant contends that, due to his confinement in the federal

correction facility, he was "without access to the Tennessee Code Annotated,"

therefore, he was unaware of the three year limitation period. Lack of knowledge

does not excuse late filings. Skinner v. State, No. 02C01-9403-CC-00039 (Tenn.

Crim. App. at Jackson, July 13, 1994), perm. to appeal denied, (Tenn. Oct. 10,

1994) (citing Willis v. State, No. 01C01-9211-CR-00359 (Tenn. Crim. App. at

Nashville, Oct. 21, 1993), perm. to appeal denied, (Tenn. Mar. 7, 1994)). This

contention is also without merit.

We also reject the appellant's argument that the new Post-Conviction

Procedure Act, effective May 10, 1995, grants an additional one year period, until

May 10, 1996, to file a post-conviction petition. A consensus of this court agrees

that the new act does not revive previously time-barred post-conviction relief

claims. See, e.g., Wolfenbarger v. State, No. 03C01-9603-CC-00124 (Tenn.

Crim. App. at Knoxville, Apr. 1, 1997); Carter v. State, No. 01C01-9511-CC00398 (Tenn. Crim. App. at Nashville, Feb. 13, 1997); Pendleton v. State, No.

01C01-9604-CR-00158 (Tenn. Crim. App. at Nashville, Feb. 13, 1997); Blake v.

State, No. 03C01-9603-CR-00110 (Tenn. Crim. App. at Knoxville, Feb. 12,

1997); Koprowski v. State, No. 03C01-9511-CC-00365 (Tenn. Crim. App. at
5

Knoxville, Jan. 28, 1997). But see Carter v. State, No. 03C01-9509-CC-00270

(Tenn. Crim. App. at Knoxville, July 11, 1996), perm. to appeal granted, (Tenn.

Dec. 2, 1996). Even though the instant petition was filed after the effective date

of the new Act, the applicable three year statute of limitations barred the

appellant post-conviction relief prior to May 10, 1995. The 1995 Act will not

revive a claim which is already time-barred.

Finally, we summarily reject the appellant's contentions that (1) application

of the three year statute of limitations to his pre-1986 convictions is

unconstitutional, see State v. Masucci, 754 S.W.2d 90 (Tenn. Crim. App. 1988);

and (2) the three year statute of limitations procedurally denied him his

constitutional rights because he was unaware of his ground for post-conviction

relief, see Brown v. State, 928 S.W.2d 453, 457 (Tenn. Crim. App.), perm. to

appeal denied, (Tenn. 1996).

Accordingly, we affirm the judgment of the trial court and hold that the

appellant's petition for post-conviction relief is time-barred by the applicable three

year statute of limitations.

____________________________________

DAVID G. HAYES, Judge

CONCUR:

_______________________________

JERRY L. SMITH, Judge

______________________________
6

THOMAS T. WOODALL, Judge