        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                           Assigned On Briefs July 20, 2011

            DIMARKO B. WILLIAMS v. STATE OF TENNESSEE

                   Appeal from the Circuit Court for Maury County
                        No. 9190     Jim T. Hamilton, Judge


               No. M2010-02180-CCA-R3-PC - Filed October 19, 2011


The Petitioner, Dimarko B. Williams, appeals as of right from the Maury County Circuit
Court's dismissal of his petition for post-conviction relief as untimely. The Petitioner
contends that the United States Supreme Court's decision in Blakely v. Washington, 542 U.S.
296 (2004), created a new constitutional right, tolling the limitations period. Following our
review of the record and the relevant case law, we affirm the judgment of the post-conviction
court.

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

D. K ELLY T HOMAS, J R., J., delivered the opinion of the Court, in which J AMES C URWOOD
W ITT and J OHN E VERETT W ILLIAMS, JJ., joined.

Robert C. Richardson, Jr., Columbia, Tennessee, for the appellant, Dimarko B. Williams.

Robert E. Cooper, Jr., Attorney General and Reporter; Nicholas W. Spangler, Assistant
Attorney General; T. Michel Bottoms, District Attorney General; and Daniel J. Runde,
Assistant District Attorney General, for the appellee, State of Tennessee.

                                        OPINION

                            PROCEDURAL BACKGROUND

       The Petitioner was charged with the first-degree murder of Harold Shawn Woodward
in 1995. On April 16, 1996, the Petitioner was convicted by a jury of second-degree murder,
a Class A felony. The trial court sentenced the Petitioner as a Range I, standard offender to
25 years. In 1998, this court reduced the Petitioner’s sentence to 22 years, after concluding
that the trial judge misapplied three of the four enhancement factors used to increase the
Petitioner's sentence beyond the presumptive 20-year minimum. State v. Williams, No.
01C01-9701-CC-00030, 1998 Tenn. Crim. App. LEXIS 1332 (Tenn. Crim. App., at
Nashville, Dec. 31, 1998). On February 20, 2001, the Tennessee Supreme Court affirmed
this court’s modified sentence. State v. Williams, 38 S.W.3d 532, 534 (Tenn. 2001).

        On May 26, 2005, the Petitioner filed a pro se petition for post-conviction relief. The
Petitioner argued that Blakely created a new constitutional right that excused the untimeliness
of his petition. Subsequently, a post-conviction hearing was held to address whether (1)
Blakely created a new constitutional rule of law; (2) if that “new” rule of law required
retroactive applicability; and (3) whether the Petitioner properly preserved this issue for
appeal. The post-conviction court concluded that Blakely did not create a new constitutional
right requiring retroactive application in the instant case. Accordingly, the post-conviction
court dismissed the petition as untimely. The Petitioner filed a timely notice of appeal to this
court.

                                         ANALYSIS

        The Petitioner contends that the post-conviction court erred in dismissing his
petition for post-conviction relief. The Petitioner argues that his sentence was improperly
enhanced by the trial court and that he is entitled to a new sentencing hearing. The
Petitioner further contends that his petition was not untimely filed because Blakely
created a new constitutional right and requires retroactive application. The State responds
that the petition for post-conviction relief was untimely and was properly dismissed by the
trial court.

        The burden in a post-conviction proceeding is on the petitioner to prove his
allegations of fact supporting his grounds for relief by clear and convincing evidence.
Tenn. Code Ann. § 40-30-110(f); see Dellinger v. State, 279 S.W.3d 282, 293-94 (Tenn.
2009). On appeal, we are bound by the post-conviction court’s findings of fact unless we
conclude that the evidence in the record preponderates against those findings. Fields v.
State, 40 S.W.3d 450, 456 (Tenn. 2001).

       Tennessee’s Post-Conviction Procedure Act provides that a claim for post-
conviction relief must be filed “within one (1) year of the date of the final action of the
highest state appellate court to which 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.” Tenn. Code Ann. § 40-30-102(a) (2006). A trial court must dismiss any
petition not filed within the limitations period. Tenn. Code Ann. § 40-30-106(b). It is not
disputed that the petition for post-conviction relief was untimely. The petition was filed in
2005, approximately four years after the Tennessee Supreme Court affirmed the decision
of the Court of Criminal Appeals in 2001.

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        The Post-Conviction Procedure Act provides that a petition may be filed beyond
the expiration of the one-year limitations period if the claim (1) is based on a
constitutional right not existing at the time of trial; (2) is based on new scientific evidence
that establishes innocence; or (3) seeks relief from a sentence that was enhanced because
of a previous conviction that was later held to be invalid. Tenn. Code Ann. § 40-30-
102(b)(1)-(3). The Petitioner asserts that Blakely created a new constitutional right that is
entitled to retroactive application.

        This court has repeatedly held that Blakely did not announce a new rule of law that
is entitled to retroactive application in a post-conviction proceeding. See Jeffrey Owen
Walters v. State, No. M2008-01806-CCA-R#-PC, 2009 WL 3400687, at *6 (Tenn. Crim.
App. Oct. 20, 2009), perm. appeal denied, Tenn. April 14, 2010); Glen Cook v. State, No.
W2006-01514-CCA-R3-PC, 2008 WL 821532, at *10 (Tenn. Crim. App. Mar. 27, 2008),
perm. appeal denied, (Tenn. Sept. 29, 2008); Carl Johnson v. State, No. W2003-02760-
CCA-R3-PC, 2005 WL 181699. at *4 (Tenn. Crim. App. Jan. 25, 2005); Donald Branch
v. State, No. W2003-03042-CCA-R3-PC 2004 WL 2996894, at 9-10 (Tenn. Crim. App.
Dec. 21, 2004), perm. app. denied (Tenn. May 23, 2005). Accordingly, we conclude that
the post-conviction court did not err in denying the petition for post-conviction relief
because it was untimely filed.
                                        CONCLUSION

       Upon consideration of the foregoing and the record as a whole, the judgment of the
post-conviction court is affirmed.

                                                    _____________________________
                                                    D. KELLY THOMAS, JR., JUDGE




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