        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                             Assigned on Briefs July 9, 2013

                   JERRY A. BELL v. STATE OF TENNESSEE

                    Appeal from the Criminal Court for Shelby County
                   No. 01-11772-01-11795    James Lammey, Jr., Judge



                 No. W2013-00176-CCA-R3-PC - Filed September 4, 2013


Petitioner, Jerry A. Bell, was convicted in three separate trials of multiple felonies which
resulted in three separate appeals. See State v. Jerry Bell, No. W2003-02870-CCA-R3-CD,
2005 WL 1105158 (Tenn. Crim. App., at Jackson, May 10, 2005); State v. Jerry Bell,
No.W2004-01355-CCA-R3-CD, 2005 WL 2205849 (Tenn. Crim. App., at Jackson, Sept. 12,
2005); State v. Jerry Bell, No. W2005-02812-CCA-R3-CD, 2006 WL 2872472 (Tenn. Crim.
App., at Jackson, Oct. 9, 2006). Petitioner filed a pro se petition for post-conviction relief
jointly attacking these convictions and arguing that the statute of limitations should be tolled
because the cases of Apprendi v. New Jersey, 530 U.S. 466 (2000); Blakely v. Washington,
542 U.S. 296 (2004); Cunningham v. California, 549 U.S. 270 (2007); and State v. Gomez,
239 S.W.3d 733 (Tenn. 2007) (“Gomez II”); established a new constitutional right requiring
the tolling of the statute of limitations or in the alternative that his due process rights were
violated such that the tolling of the statute of limitations is required. The post-conviction
court summarily dismissed the petition. Petitioner appeals this dismissal. We have reviewed
the record on appeal and conclude that there is no basis upon which to toll the statute of
limitations. Therefore, we affirm the post-conviction court’s summary dismissal of the
petition.

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

J ERRY L. S MITH, J., delivered the opinion of the court, in which J OSEPH M. T IPTON, P.J., and
A LAN E. G LENN, J., joined.

Jerry A. Bell, Pro Se, Henning, Tennessee.

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney
General; Amy P. Weirich, District Attorney General, and Lora Fowler, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                             OPINION

                                        Factual Background

       Petitioner was convicted by a jury of two counts of aggravated robbery, one count of
aggravated burglary, one count of aggravated assault, and one count of possession of a
deadly weapon with the intent to employ it in the commission of aggravated robbery. Jerry
Bell, 2006 WL 2872472, at *2. He was sentenced to an effective sentence of twenty-three
years. Id. In a separate trial, Petitioner was convicted by a jury of one count of aggravated
burglary and two counts of aggravated robbery. Jerry Bell, 2005 WL 2205849, at *2. He
was sentenced to an effective sentence of twenty years. Id. In a third trial, Petitioner was
convicted of one count of aggravated burglary, two counts of kidnapping, and two counts of
rape. Jerry Bell, 2005 WL 1105158, at *3. He was sentenced to an effective sentence of
fourteen years, eleven months and twenty-nine days. Id. Petitioner appealed these
convictions in three separate proceedings.

        Petitioner filed a single petition for post-conviction relief on July 12, 2012.1 In this
petition, he sought relief from the convictions that were the result of all three of his trials.
The petition was filed after the one-year statute of limitations expired. Among his
arguments, he claimed that the statute of limitations should be tolled for due process reasons.
The post-conviction court summarily dismissed the petition for failure to comply with the
statute of limitations.

                                            ANALYSIS

       Petitioner argues that the post-conviction court erred in summarily dismissing his
petition. The State argues that the post-conviction court properly dismissed the petition
because there was no reason to toll the statute of limitations.

        Under the Post-conviction Procedure Act, a petition for post-conviction relief must
be filed within one year of the date 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. T.C.A. § 40-30-102(a). Unless one of the enumerated exceptions
applies, a court does not have jurisdiction to consider an untimely petition. See T.C.A. § 40-
30-102(b). Tennessee Code Annotated section 40-30-102(b) lists the exceptions to the
statute of limitations as situations where: (1) “[t]he claim in the petition is based upon a final
ruling of an appellate court establishing a constitutional right that was not recognized as

       1
           The Post-conviction Procedure Act states that a petitioner must file separate petitions for a
collateral attack on judgments stemming from separate trials. T.C.A. § 40-30-104(c).

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existing at the time of trial, if retrospective application of that right is required;” (2) “[t]he
claim in the petition is based upon new scientific evidence establishing that the petitioner is
actually innocent of the offense or offenses for which the petitioner was convicted;” or (3)


       The claim asserted in the petition seeks relief from a sentence that was
       enhanced because of a previous conviction and the conviction in the case in
       which the claim is asserted was not a guilty plea with an agreed sentence, and
       the previous conviction has subsequently been held to be invalid.


       In the present case, the post-conviction court properly determined that the petition was
filed more than one year after the date of the final action by the highest court to which an
appeal was taken and thus well outside the statute of limitations. Appellant did not appeal
his convictions to our supreme court for any of his three appeals. See Jerry Bell, 2005 WL
1105158 at *1; Jerry Bell, 2005 WL 2205849 at *1; Jerry Bell, 2006 WL 2872472, at *1.
Therefore, the date of final action is the date that the opinions of this Court were filed: May
10, 2005; September 12, 2005; and October 9, 2006. Clearly, Petitioner’s July 12, 2012
Petition for Post-conviction relief was outside the statute of limitations.

                                    Apprendi and Blakely

       Petitioner argues that the holdings in Apprendi and Blakely, authored by the United
States Supreme Court, established a new constitutional right that should be applied
retroactively and would meet the first exception set out in Tennessee Code Annotated section
40-30-102(b)(1).

       This Court has previously determined that Apprendi does not apply retroactively so
as to warrant collateral relief. This Court has held:


       A “case announces a new rule when it breaks new ground or imposes a new
       obligation on the States or the Federal Government [or] . . . if the result was
       not dictated by precedent existing at the time the defendant’s conviction
       became final.” Teague v. Lane, 489 U.S. 288, 301 (1989) (citations omitted);
       see also Van Tran v. State, 66 S.W.3d 790, 810-11 (Tenn. 2001). Courts
       addressing whether Apprendi sets forth a new rule have held that, in Apprendi,
       “the Supreme Court announced a new constitutional rule of criminal procedure
       by holding that ‘other than the fact of a prior conviction, any fact that increases
       the penalty for a crime beyond the prescribed statutory maximum must be

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      submitted to the jury, and proved beyond a reasonable doubt.”’ In re
      Clemmons, 259 F.3d 489, 491 (6th Cir. 2001) (quoting Apprendi, 530 U.S. at
      491); see also United States v. Sanders, 247 F.3d 139, 147 (4th Cir. 2001)
      (holding that “Apprendi is certainly a new rule of criminal procedure”); United
      States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001)(holding that “Apprendi is
      obviously a ‘new rule”’). Because Apprendi sets forth a new constitutional
      rule of criminal procedure, the fundamental question becomes whether
      Apprendi applies retroactively to the petitioner’s case.

              New rules of constitutional criminal procedure are generally not applied
      retroactively on collateral review. Teague, 489 U.S. at 310. However, this
      general rule is subject to two exceptions. Id. “First, a new rule should be
      applied retroactively if it places ‘certain kinds of primary, private individual
      conduct beyond the power of the criminal law-making authority to proscribe.’”
      Id. at 307. Second, a new rule should be applied retroactively if it is a
      “watershed rule of criminal procedure, . . . which implicates both the accuracy
      and fundamental fairness of criminal proceedings.” Moss, 252 F.3d at 998
      (citing Teague, 489 U.S. at 312). Clearly, the first exception is not applicable
      to the petitioner’s claim, because the rule set forth in Apprendi “did not
      decriminalize any class of conduct or prohibit a certain category of punishment
      for a class of defendants.” McCoy v. United States, 266 F.3d 1245, 1256 (11th
      Cir. 2001). Furthermore, the great weight of authority holds that Apprendi is
      not the type of watershed rule of criminal procedure that qualifies for
      retroactive application under the second exception. Dukes v. United States,
      255 F.3d 912, 913 (8th Cir. 2001) (holding that “Apprendi presents a new rule
      of constitutional law that is not of ‘watershed’ magnitude and, consequently,
      petitioners may not raise Apprendi claims on collateral review”); Sanders, 247
      F.3d at 151 (holding that “the new rule announced in Apprendi does not rise
      to the level of a watershed rule of criminal procedure which ‘alters our
      understanding of the bedrock elements essential to the fairness of a
      proceeding”’); McCoy, 266 F.3d at 1257 (agreeing with the other circuits that
      “Apprendi is not sufficiently fundamental to fall within Teague’s second
      exception”). Accordingly, we conclude that the new constitutional rule of
      criminal procedure announced in Apprendi does not apply retroactively on
      collateral review.

William Steve Greenup v. State, No. W2001-01764-CCA-R3-PC, 2002 WL 31246136, at *2-
3 (Tenn. Crim. App., at Jackson, Oct. 2, 2002).




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       In addition, our courts have repeatedly held that Apprendi, Blakely, Cunningham and
Gomez II, did not establish a new rule of constitutional law which was entitled to retroactive
application on collateral review. Travis J. Woods v. State, No. E2007-02379-CCA-R3-PC,
2009 WL 723522 at *14-15 (Tenn. Crim. App., at Knoxville, Mar. 18, 2009), perm. app.
denied, (Tenn. Aug. 17, 2009); Ira Ishamael Muhammad v. State, No. E2007-00748-CCA-
R3-PC, 2009 WL 400633, at *5 (Tenn. Crim. App., at Knoxville, Feb. 18, 2009), perm. app.
denied, (Tenn. Aug. 17, 2009); Ortega Wiltz v. State, No. M2006-02740-CCA-R3-PC, 2008
WL 1850796, at *9 (Tenn. Crim. App., at Nashville, Apr. 25, 2008), perm. app. denied,
(Tenn. Oct. 27, 2008); Timothy R. Bowles v. State, No. M2006-01685-CCA-R3-HC, 2007
WL 1266594, at *3 (Tenn. Crim. App., at Nashville, May 1, 2007).

        Therefore, Petitioner’s argument with regard to an exception to the statute of
limitations based upon the decisions in Apprendi, Blakely, Cunningham and Gomez II must
fail.

                                          Due Process

       Petitioner also argues that “ application of the Statute of Limitations to bar his Petition
for Post-Conviction Relief would deprive him of liberty without Due Process because he will
have to serve an excessive sentence despite the fact that this court has ruled that the
Sentencing Reform Act of 1989[ ] violated his right to Due Process.”

       In addition to the exceptions set out above in Tennessee Code Annotated section 40-
30-102(b), the courts in this State have found that due process concerns can toll the statute
of limitations in certain factual situations. See Williams v. State, 44 S.W.3d 464 (Tenn.
2001); Sands v. State, 903 S.W.2d 297 (Tenn. 1995); Burford v. State, 845 S.W.2d 204
(Tenn. 1992).

        In Williams v. State, 44 S.W.3d 464 (Tenn. 2001), one in a line of cases including
Burford v. State, 845 S.W.2d 204 (Tenn. 1992), and Sands v. State, 903 S.W.2d 297 (Tenn.
1995), the Tennessee Supreme Court analyzed a situation where due process limitations toll
the statute of limitations. In Burford, the petitioner’s sentence was enhanced by previous
convictions that had subsequently been declared invalid, but not invalidated in time for him
to meet the statute of limitations for filing his post-conviction petition. Burford, 845 S.W.2d
at 208. Our supreme court stated that because the petitioner was in a procedural trap, the
petitioner’s due process rights would be violated by not allowing a tolling of the statute of
limitations and the filing of a post-conviction petition. Burford, 845 S.W.2d at 208-09.

      In Sands, our supreme court analyzed Burford and set out the basic rule derived from
Burford and how to go about applying this rule in future cases. The supreme court stated:

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       [I]t will be helpful to summarize the basic rule to be derived from Burford:
       that, in certain circumstances, due process prohibits the strict application of the
       post-conviction statute of limitations to bar a petitioner’s claim when the
       grounds for relief, whether legal or factual, arise after the “final action of the
       highest state appellate court to which an appeal is taken” – or, in other words,
       when the grounds arise after the point at which the limitations period would
       normally have begun to run. In applying the Burford rule to specific factual
       situations, courts should utilize a three-step process: (1) determine when the
       limitations period would normally have begun to run; (2) determine whether
       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.
       In making this final determination, courts should carefully weigh the
       petitioner's liberty interest in “collaterally attacking constitutional violations
       occurring during the conviction process,” Burford, 845 S.W.2d at 207, against
       the State’s interest in preventing the litigation of “stale and fraudulent claims.”
       Id. at 208.


Sands, 903 S.W.2d at 301 (footnote omitted). However, after going through this analysis,
the supreme court concluded that the statute of limitations had not been tolled in the Sands
situation.

       In Williams, the supreme court again held that the statute of limitations was tolled by
the factual and legal situation of the petitioner. In Williams, there was some dispute over
whether the petitioner’s trial counsel continued to represent him and how much the petitioner
actually knew about the progress of his appeals. The supreme court stated that the question
was whether the petitioner had been “misled to believe that [his trial] counsel was continuing
the appeals process . . . .” Id. at 471. The supreme court remanded the case to the trial court
for it to determine whether the statute must be tolled due to possible attorney
misrepresentation. Id. In other words, Williams “appears to limit claims of attorney
misrepresentation tolling the statute of limitations to times when counsel has made
misrepresentations directly related to filing a defendant’s appeal.” Crawford v. State, 151
S.W.3d 179, 184 (Tenn. Crim. App. 2004).

      Petitioner does not describe in what way his due process rights have been violated.
In addition, we can find no support for his contention that “this court has ruled that the

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Sentencing Reform Act of 1989, violated his right to Due Process.” Upon appeal to this
Court for all three of his direct appeals his sentences were affirmed. See Jerry Bell, 2005
WL 1105158 at *1; Jerry Bell, 2005 WL 2205849 at *1; Jerry Bell, 2006 WL 2872472, at
*1. Petitioner cites Burford to support his argument. However, Petitioner is not in a situation
analogous to Burford.

        Because we can discern no argument as to how his due process rights were violated
that require the tolling of the statute of limitations, Petitioner is not entitled to relief on this
issue.

                                          Other Issues

        Petitioner also argues that he was afforded ineffective assistance of counsel and that
the trial court erred in imposing consecutive sentences. Because we have already determined
that the petition was filed outside the statute of limitations and there is no reason for tolling
the statute, we decline to address Petitioner’s remaining issues.

                                        CONCLUSION

       For the foregoing reasons, we affirm the post-conviction court’s summary dismissal
of the petition.




                                              ___________________________________
                                              JERRY L. SMITH, JUDGE




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