        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                            Assigned on Briefs June 3, 2014

             MILBURN L. EDWARDS v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                   No. P-18666    Honorable Lee V. Coffee, Judge


                No. W2013-01886-CCA-R3-PC - Filed August 13, 2014


The Petitioner, Milburn L. Edwards, appeals the Shelby County Criminal Court’s summary
dismissal of his second pro se petition for post-conviction relief. After reviewing the record
in this case, we conclude that the summary dismissal of the petition was proper and that this
case meets the criteria for affirmance pursuant to Rule 20 of the Rules of the Court of
Criminal Appeals. Accordingly, we affirm the judgment of the post-conviction court.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

C AMILLE R. M CM ULLEN, J., delivered the opinion of the court, in which A LAN E. G LENN, J.,
and J EFFREY S. B IVINS, S.J., joined.

Milburn L. Edwards, Clifton, Tennessee, pro se.

Robert E. Cooper, Jr., Attorney General and Reporter; Sophia S. Lee, Assistant Attorney
General; Amy P. Weirich, District Attorney General; and Karen Cook, Assistant District
Attorney General, for the Appellee, State of Tennessee.

                              MEMORANDUM OPINION

       On February 3, 1982, the Petitioner, Milburn L. Edwards, entered a guilty plea in
Shelby County Criminal Court to two counts of rape, three counts of robbery, one count of
robbery with a deadly weapon, four counts of burglary, one count of attempted burglary, one
count of first degree criminal sexual conduct, one count of assault with intent to commit
criminal sexual conduct, and one count of a crime against nature, and he received an
effective sentence of ten years. Milburn L. Edwards v. State, No. 2000-00043-CCA-R3-PC,
2001 WL 293008, at *1 (Tenn. Crim. App. Mar. 27, 2001), perm. app. denied (Tenn. Sept.
17, 2001). In 1987, the Petitioner was paroled on this sentence. Milburn L. Edwards v.
State, No. M2002-02124-CCA-R3-PC, 2003 WL 23014683, at *16 (Tenn. Crim. App. Dec.
15, 2003).

        In 1991, the Petitioner was convicted by a Davidson County Criminal Court jury of
twenty-one counts of rape, two counts of first-degree burglary, two counts of aggravated
burglary, one count each of second-degree burglary, aggravated rape, assault with intent to
commit rape, and robbery, and the trial court sentenced him to an effective sentence of life
plus 415 years. State v. Edwards, 868 S.W.2d 682, 685 (Tenn. Crim. App. 1993). In
sentencing the Petitioner for his 1991 convictions, the trial court considered the Petitioner’s
1982 convictions to establish his offender classification, and therefore, his sentencing range.
Id. at 701. On direct appeal, this court affirmed the Petitioner’s convictions but modified his
sentence to life plus 195 years. Id. at 705.

       On June 23, 1997, the Petitioner filed a pro se post-conviction petition challenging his
1982 convictions. Milburn L. Edwards, 2001 WL 293008, at *1 [I, 38-39]. The Petitioner
argued that his petition was not untimely because due process considerations tolled the
statute of limitations pursuant to Burford v. State, 845 S.W.2d 204 (Tenn. 1992). The
Petitioner, in addition to raising other issues, alleged that his guilty plea was unknowing and
involuntary and that the trial court failed to inform him of the privilege against self-
incrimination. Milburn L. Edwards, 2001 WL 293008, at *4. The Petitioner was appointed
counsel. The post-conviction court, after conducting an evidentiary hearing to determine
whether the post-conviction petition was barred by the statute of limitations, filed a written
order denying relief. Id. In its conclusions of law, the court held that the Petitioner’s June
23, 1997 post-conviction petition was time-barred:

               In regard to the first step [in Burford], determining when the statute of
       limitations would normally have begun to run, at the time of Petitioner’s guilty
       pleas in 1982 there was no statute of limitations on when a Petition for Post-
       Conviction Relief could be brought. On July 1, 1986, the Tennessee
       Legislature enacted T.C.A. [§] 40-30-102, the Post-Conviction Petition Act,
       [which] established a three[-]year statute of limitations on post-conviction
       petitions. Any claim arising from a conviction prior to July 1, 1983, the statute
       of limitations was deemed to have begun to run on July 1, 1986, so that the
       statute of limitation[s] would have expired by July 1, 1989.

              In regard to the second step [in Burford], as to whether the grounds for
       relief actually arose after the limitations period would normally have
       commenced, the grounds for relief arose at the time Petitioner entered his
       guilty plea on February 3, 1982. Therefore, in the instant case, the grounds



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       were not “later arising” and there is no need to address the third step to
       determine whether the Petition comes under the Burford exception.

The post-conviction court found that because the statute of limitations began to run on July
1, 1986, and expired three years later on July 1, 1989, the Petitioner’s June 23, 1997 post-
conviction petition was untimely. Id. at *2. On appeal, this court affirmed the judgment of
the post-conviction court. Id. at *4.

        On June 7, 2013, the Petitioner filed his second pro-se post-conviction petition, again
challenging his 1982 convictions. In it, he alleged that his guilty pleas were involuntary and
unknowing because the trial court and his attorney failed to advise him of his right against
self-incrimination. The Petitioner argued that due process considerations tolled the statute
of limitations because his claim did not arise until the Davidson County Criminal Court used
his 1982 convictions to determine his offender classification for his 1991 convictions [I, 29].
He also argued that his claim was not waived or previously determined because appointed
counsel who represented him on his first post-conviction petition failed to present this due
process argument at the trial court level or on appeal. On June 20, 2013, the post-conviction
court summarily dismissed the petition on the grounds that this claim had been previously
determined and that due process considerations did not toll the statute of limitations. The
Petitioner filed a timely notice of appeal.

       Post-conviction relief is only warranted when a petitioner establishes that his or her
conviction is void or voidable because of an abridgement of a constitutional right. T.C.A.
§ 40-30-103. The post-conviction court may summarily dismiss a petition for post-
conviction relief, without a hearing and without appointing counsel, if a petition is not filed
within the statute of limitations:

       If it plainly appears from the face of the petition, any annexed exhibits or the
       prior proceedings in the case that the petition was not filed in the court of
       conviction or within the time set forth in the statute of limitations, or that a
       prior petition was filed attacking the conviction and was resolved on the
       merits, the judge shall enter an order dismissing the petition. . . .

Id. § 40-30-106(b).

        Although the Petitioner acknowledges that he filed his second petition outside the
statute of limitations, he asserts that due process considerations require tolling the statute of
limitations. A court may consider an untimely petition for post-conviction relief if a
Petitioner would be denied due process by applying the statute of limitations. Burford, 845



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S.W.2d at 210. In Seals v. State, the Tennessee Supreme Court explained the rationale for
due process tolling:

        [B]efore a state may terminate a claim for failure to comply with procedural
        requirements such as statutes of limitations, due process requires that a
        potential litigant be provided an opportunity for the “presentation of claims at
        a meaningful time and in a meaningful manner.” The test is “whether the time
        period provides an applicant a reasonable opportunity to have the claimed
        issue heard and determined.”

23 S.W.3d 272, 277-78 (Tenn. 2000) (quoting Burford, 845 S.W.2d at 207) (internal citations
omitted).

        In determining whether due process requires tolling the statute of limitations, a court
must:

        (1) determine when the limitations period would have normally have begun to
        run;

        (2) determine whether the grounds for relief actually arose 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 of the limitations period would effectively deny the
        petitioner a reasonable opportunity to present the claim.

Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995). For the last requirement, a court must
weigh the petitioner’s interest in collaterally attacking constitutional violations against the
state’s interest in preventing the litigation of fraudulent or stale claims. Id. Ignorance of or
late discovery of a claim does not create a “later-arising” claim. Brown v. State, 928 S.W.2d
453, 456 (Tenn. Crim. App. 1996); Antonio Angel Onate v. State, No. M2013-00531-CCA-
R3-PC, 2013 WL 4677697, at *3 (Tenn. Crim. App. Aug. 28, 2013); Clayton Bezuidenhout
v. State, No. M2012-01114-CCA-R3-PC, 2013 WL 1965992, at *2 (Tenn. Crim. App. May
13, 2013).

        In this case, the Petitioner argues that the statute of limitations should be tolled
because his claim did not come to light until his 1982 convictions were used to determine his
offender classification for his 1991 convictions. Applying the first factor in Sands, we note
that the Petitioner entered his guilty plea on February 3, 1982, and pursuant to Tennessee
Code Annotated section 40-30-102 (1986) (repealed 1995), the statute of limitations began

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to run on July 1, 1986, and expired on July 1, 1989. The Petitioner filed his instant petition
on June 7, 2013, more than twenty-three years after the statute of limitations expired.
Applying the second factor in Sands, we conclude that the Petitioner’s claim about not being
informed of his right against self-incrimination existed at the time of his guilty plea, and
there was no evidence that the Petitioner was prevented from filing a petition within the
statute of limitations period. While the Petitioner may not have been aware that his 1982
convictions could affect his offender classification for later convictions, namely his 1991
convictions, he does not claim that the law regarding offender classification did not exist at
the time he entered his guilty plea in 1982. See T.C.A. §§ 40-35-106, -107, -109(c) (1982).
Consequently, we conclude that the Petitioner has failed to establish a “later-arising” claim
that justifies tolling the statue of limitations on due process grounds. See Jason Earl Hill v.
State, No. E2005-00968-CCA-R3-PC, 2006 WL 389667, at *3 (Tenn. Crim. App. Feb. 16,
2005) (concluding petitioner’s claim, that he did not know that his convictions could be used
to enhance a subsequent sentence until the convictions were used to enhance his federal
sentence, did not toll the statute of limitations because the petitioner’s ground for relief
existed at the time of his guilty plea); George Todd v. State, No. M1999-00976-CCA-R3-PC,
2000 WL 1130363, at *1 (Tenn. Crim. App. July 28, 2000) (affirming dismissal of the post-
conviction petition as time-barred when the petitioner stated that he believed he would be
automatically paroled after serving thirty-five percent of his sentence and was not aware that
parole was discretionary until the parole board denied him parole after the expiration of the
statute of limitations); Howard Templeton v. State, No. 01C01-9406-CC-00220, 1995 WL
2995, at *1 (Tenn. Crim. App., at Nashville, Jan. 3, 1995) (“The petitioner’s lack of
knowledge that he had grounds for a petition for post-conviction relief until after the statute
of limitations had run cannot defeat the application of the statute of limitations.”). Because
we have determined that the Petitioner’s claim is not “later-arising,” we need not address the
third factor in Sands. The Petitioner has failed to show that the statute of limitations should
be tolled for due process considerations; therefore, the judgment of the post-conviction court
is affirmed.

        When an opinion would have no precedential value, the Court of Criminal Appeals
may affirm the judgment or action of the trial court by memorandum opinion when the
judgment is rendered or the action taken in a proceeding without a jury and such judgment
or action is not a determination of guilt, and the evidence does not preponderate against the
finding of the trial judge. See Tenn. Ct. Crim. App. R. 20. We conclude that this case meets
the criteria outlined in Rule 20. The judgment of the post-conviction court is affirmed.


                                                    ___________________________________
                                                    CAMILLE R. McMULLEN, JUDGE



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