         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT JACKSON
                            Assigned on Briefs October 7, 2008

            GERALD WAYNE CARTER v. STATE OF TENNESSEE

                  Direct Appeal from the Circuit Court for Madison County
                        Nos. C-07-394, C-08-24    Roy Morgan, Judge



                  No. W2008-00652-CCA-R3-PC - Filed November 13, 2008


In this consolidated appeal, the petitioner, Gerald Wayne Carter, challenges the circuit court’s
summary dismissal of his petitions for both post-conviction relief and writ of error coram nobis. The
circuit court dismissed the petitions, finding that the petitioner had filed outside the statute of
limitations period. After review, we affirm the judgments of the court.

      Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Circuit Court Affirmed

J.C. MCLIN , J., delivered the opinion of the court, in which DAVID H. WELLES and THOMAS T.
WOODALL , JJ., joined.

Gerald Wayne Carter, Pro Se, Forrest City FCC-Med, Forrest City, Arkansas.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;
James G. Woodall, District Attorney General; and Alfred Lynn Earls, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                            OPINION

                                      I. Procedural History

       This case involves the summary dismissal of the petitioner’s separate petitions for
post-conviction relief and writ of error coram nobis. The petitioner did not include the judgment of
convictions or other documentation in the record on appeal. However, according to the petitioner’s
pleadings, he pled guilty to robbery in 1989 in exchange for a five-year sentence in case number 89-
856. In 1993, the petitioner pled guilty to possession of crack cocaine with the intent to distribute
and received a ten-year sentence in case number 96-166.

       On December 14, 2007, the petitioner filed a pro se petition, captioned “Post-Conviction
Relief/Writ of Error Coram Nobis.” The petitioner challenged the voluntariness of his guilty plea
for robbery in 1989 because he was never advised that his robbery conviction could be used to
enhance “any subsequent felony convictions.” In making this argument, the petitioner asserted that
other omissions occurred during the plea hearing and he did not understand the “full consequences
and effect” of his plea until he was subsequently “convicted in Federal Court.” On January 18, 2008,
the petitioner filed a separate petition challenging the voluntariness of his 1993 guilty plea for felony
drug possession on the same basis. The circuit court dismissed both petitions without an evidentiary
hearing. The court found that the petitioner’s petitions were barred by the statute of limitations and
the petitioner failed to state a cognizable claim for tolling the limitations period. In particular, the
court noted that the petitioner’s claim of ignorance of the law did not toll the statute of limitations.
The petitioner appealed.

                                              II. Analysis

        On appeal, the petitioner acknowledges that he filed his petitions beyond the statute of
limitations for post-conviction relief and writ of error coram nobis. However, he contends that the
limitations period should be “equitably” tolled because he was not aware of the fact that his guilty
pleas were unknowing and involuntary, and therefore, the pleas were obtained in violation of his
constitutional rights.

        A statute of limitation period applies to both post-conviction petitions and petitions for writ
of error coram nobis. A petition for post-conviction relief must be filed within one year of the final
action of the highest state appellate court to which an appeal is taken, or, if no appeal is taken, within
one year of the date on which the judgment became final, or consideration of the petition is barred.
Tenn. Code Ann. § 40-30-102(a). “The statute of limitations shall not be tolled for any reason,
including any tolling or saving provision otherwise available at law or equity.” Id. A court does not
have jurisdiction to consider a post-conviction petition filed outside the one-year statute of
limitations unless: (1) the claim is based on a final appellate court ruling establishing a constitutional
right not recognized at the time of trial but given retroactive effect by the appellate court; (2) the
claim is based upon new scientific evidence establishing the petitioner is actually innocent; or (3)
the claim is based upon sentences that were enhanced because of a previous conviction and the
previous conviction was subsequently found to be illegal. See id. § 40-30-102(b). Similarly, a
petition for writ of error coram nobis relief must be filed within one year of the time judgment
becomes final in the trial court. See id. § 27-7-103.

         A court may consider an untimely petition if applying the statute of limitations would deny
the petitioner due process. See Workman v. State, 41 S.W.3d 100, 103 (Tenn. 2001); Burford v.
State, 845 S.W.2d 204, 209-10 (Tenn. 1992). To determine if due process requires the tolling of the
statute of limitations, a court must weigh the petitioner’s interest in having an opportunity to present
his claims in a meaningful time and manner against the state’s interest in preventing the litigation
of stale and fraudulent claims. Burford, 845 S.W.2d at 208. More specifically, a court should utilize
the following analysis:

        (1) determine when the limitations period would 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.

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Sands v. State, 903 S.W.2d 297, 301 (Tenn. 1995).

        In this case, the record reflects that the petitioner filed his petitions well after the statute of
limitations period had expired.1 Moreover, the petitioner has not provided any facts which raise a
due process concern. See, e.g., Williams v. State, 44 S.W.3d 464 (Tenn. 2001) (holding that strict
application of the statute of limitations to cases in which a petitioner has been unilaterally deprived
of the opportunity to seek second-tier review of his convictions through misrepresentations of his
attorney may violate due process); Seals v. State, 23 S.W.3d 272, 279 (Tenn. 2000) (holding that the
statute of limitations should be tolled during time that petitioner was mentally impaired). The
petitioner’s assertion that the statute of limitations should be “equitably tolled” because he was
unaware of the consequences of his guilty pleas does not hold merit. The petitioner was afforded
a reasonable opportunity to present his claim regarding the voluntariness of his guilty pleas and his
claim of ignorance does not create a due process avenue of relief. We have previously held that the
post-conviction statute of limitations does not include a discovery exception which would toll its
one-year limit. James Marvin Martin v. State, No. E2004-00740-CCA-R3-PC, 2004 WL 2280425,
at *3 (Tenn. Crim. App., at Knoxville, Oct. 11, 2004), perm. app. denied (Tenn. Feb 28, 2005).
Further, we have previously determined that mere lack of knowledge that a claim exists does not toll
the statute of limitations. See, e.g., Jason Earl Hill v. State, No. E2005-00968-CCA-R3-PC, 2006
WL 389667 (Tenn. Crim. App. at Knoxville, Feb. 16, 2006), perm. app. denied (Tenn. Sept. 5, 2006)
(concluding that petitioner’s lack of knowledge does not toll the statute of limitations when
petitioner argued that he did not discover his claim for relief until the conviction was used to enhance
a subsequent federal sentence); Guillermo Matiaz Juan v. State, No. 03C01-9708-CR-00318, 1999
WL 76453 (Tenn. Crim. App. Feb. 18, 1999), perm. app. denied (Tenn. July 12, 1999) (determining
that ignorance of the law did not bar application of the post-conviction statute of limitations).
Accordingly, the application of the statute of limitations in this case does not violate due process and
the circuit court did not err by summarily dismissing the petitions.

                                                  III. Conclusion

       The circumstances of the petitioner’s case do not indicate that he was denied a reasonable
opportunity to assert his post-conviction claims in a meaningful time and manner. The petition is
time barred, and the circuit court was correct to rule accordingly. The judgments of the court are
affirmed.


                                                                 ___________________________________


         1
             We note that at the time the petitioner was sentenced for his convictions, the statute of limitations for the
filing of a petition for post-conviction relief was three years. However, on May 10, 1995, the General Assembly for
the State of Tennessee modified the statute of limitations from three years to one year. See Tenn. Pub. Acts 207 § 3.
The Post Conviction Procedure Act of 1995 does not provide petitioners for whom the statute of limitations had already
expired any additional time in which to file a petition for post-conviction relief. See Carter v. State, 952 S.W.2d 417,
420 (Tenn. 1997). From his pleadings, it appears that the petitioner waited over a decade to file his petitions for post-
conviction relief.

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      J.C. McLIN, JUDGE




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