        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT KNOXVILLE
                          Assigned on Briefs January 25, 2011

              JAMES L. CRAWFORD v. STATE OF TENNESSEE

                   Appeal from the Criminal Court for Knox County
                         No. 93444    Bob R. McGee, Judge


                   No. E2010-00425-CCA-R3-PC - Filed May 9, 2011


The Petitioner, James L. Crawford, filed a petition for post-conviction relief alleging that his
guilty pleas to various felonies were not knowingly and voluntarily entered. The trial court
summarily dismissed the petition as barred by the statute of limitations. The Petitioner
appeals the dismissal, and we affirm the judgment of the trial court.

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

J OSEPH M. T IPTON, P.J., delivered the opinion of the Court, in which J AMES C URWOOD W ITT,
J R., and N ORMA M CG EE O GLE, JJ., joined.

James L. Crawford, Mountain City, Tennessee, Pro Se.

Robert E. Cooper, Jr., Attorney General and Reporter; Clark B. Thornton, Assistant Attorney
General; Randall Nichols, District Attorney General; and Leon Franks, Assistant District
Attorney General, for the appellee, State of Tennessee.

                                          OPINION

        On July 7, 2005, the Petitioner pled guilty pursuant to a plea agreement as a Range I
offender to aggravated robbery, a Class B felony, for which he received an eight-year
sentence; aggravated burglary, a Class C felony, for which he received a three-year sentence
to be served consecutively to the aggravated robbery sentence; and two counts of aggravated
assault, a Class C felony, for which he received three-year sentences to be served
concurrently to the aggravated robbery sentence. The effective sentence was eleven years,
and the judgments stated that the aggravated robbery sentence was to be served concurrently
with a federal sentence the Petitioner was serving in Virginia. The guilty plea documents
signed by the Petitioner, the assistant district attorney, and the Petitioner’s attorney also
reflect that the agreement called for the aggravated burglary sentence to be served
concurrently with the federal sentence. The transcript of the hearing reflects that the
Petitioner’s counsel requested on behalf of the Petitioner that the jail notify federal
authorities that the Petitioner was ready to go into custody. The court responded, “Okay. We
will do that.”

        The Petitioner filed his post-conviction petition on December 30, 2009. He alleged
that the State falsely represented to him that if he entered into a plea agreement, his sentence
would run concurrently with his federal sentence previously imposed by the United States
District Court, Southeastern Division, Virginia District in case number 2:03CR10084-003.
He claimed, “Similar false representations were made from time to time thereafter and I,
relying on same, did not make an effort to verify whether my sentence was in fact running
concurrent with my federal sentence.” He stated that he had no reason to doubt the validity
of the agreement until he learned in Summer 2009 that his federal sentence was “on hold”
pending his release from the Tennessee sentences. He said he also learned the state courts
had no authority to render a defendant into federal custody or to order concurrent service of
state and federal sentences. He asserted that these facts supported tolling of the statute of
limitations for filing a post-conviction petition because his guilty pleas were not knowing and
voluntary. On January 19, 2010, the trial court dismissed the petition as untimely. The
Petitioner filed this appeal on February 18, 2010.

        The Petitioner argues that the trial court erred in dismissing his petition. He contends
that the facts stated in his petition support tolling of the statute of limitations. The State
argues that the facts alleged, even if taken as true, do not state a sufficient basis for equitable
tolling of the statute of limitations. We agree with the State.

       The Tennessee Post-Conviction Procedure Act specifies that

               a person in custody under a sentence of a court of this state must
               petition for post-conviction relief under this part within one (1)
               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 (1) year of the date on which the judgment became final, or
               consideration of such petition shall be barred. The statute of
               limitations shall not be tolled for any reason, including any
               tolling or saving provision otherwise available at law or equity.

T.C.A. § 40-30-102(a) (2006). A trial court may enter an order summarily dismissing a post-
conviction petition if the petition is not filed within the time set forth in the statute of
limitations. T.C.A. § 40-30-106 (2006). If a petitioner files a petition for post-conviction
relief outside the one-year statute of limitations, a court may still consider the petition if (1)

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a new constitutional right has been recognized; (2) the petitioner’s innocence has been
established by new scientific evidence; or (3) a previous conviction that enhanced the
petitioner’s sentence has been held to be invalid. T.C.A. § 40-30-102(b). A court may also
consider an untimely petition for post-conviction relief if applying the statute of limitations
would deny the petitioner due process. Burford v. State, 845 S.W.2d 204, 209-10 (Tenn.
1992). However, due process requires a weighing of the petitioner’s liberty interest against
the State’s interest in preventing the litigation of stale and fraudulent claims. Sample v.
State, 82 S.W.3d 267, 273-74 (Tenn. 2002). To determine if due process requires tolling of
the statute of limitations, our supreme court has provided a three-step test:

              (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.

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

        Upon review, we conclude that the trial court properly dismissed the Petitioner’s
claim. The Petitioner does not argue that any of the statutory exceptions to the statute of
limitations in Code section 40-30-102(b) apply to his case, nor are any apparent from the
allegations of his petition. He relies upon the due process exception and alleges that he did
not discover until 2009 that he would not be permitted to serve his convictions imposed in
2005 concurrently with his federal sentence.

        We acknowledge that the Petitioner’s facts alleged regarding the merits of his petition,
had they been proven in a timely petition, may have presented a basis for post-conviction
relief. See State v. Virgil, 256 S.W.3d 235, 240-41 (Tenn. Crim. App. 2008) (holding that
the trial court erred in denying the defendant’s motion to withdraw his guilty pleas where the
defendant entered the pleas with the expectation that he would serve his sentence
concurrently in the Federal Bureau of Prisons). The concurring opinion in Virgil noted that
the State has no authority to control whether a defendant is allowed to serve his earlier
federal sentence and later state sentence concurrently. Id. at 242 (Hayes, J., concurring); see
also Lucious Allen v. State, W2000-02320-CCA-R3-PC, Shelby County (Tenn. Crim. App.
Nov. 2, 2001) (holding that the trial court erred in summarily dismissing a post-conviction
claim in which the petitioner alleged his guilty pleas were not knowingly and voluntarily
entered because he entered into the agreement with the understanding he would serve his

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federal and state sentences concurrently in federal custody); Joseph T. Faulkner v. State, No.
W1999-00223-CCA-R3-PC, Shelby County (Tenn. Crim. App. Oct. 17, 2000) (holding that
the petitioner was entitled to post-conviction relief based upon ineffective assistance of
counsel resulting from unknowing and involuntary guilty pleas due to a provision in the plea
agreement that his federal and State sentences would be served concurrently).

       As noted above, compliance with or tolling of the statute of limitations is a
prerequisite to post-conviction relief. T.C.A. § 40-30-102(a), (b). Mere ignorance of a
factual or legal basis for seeking post-conviction relief does not require tolling of the statute
of limitations. Our supreme court has said the basic rule of Burford is:

              [I]n 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.

Sands, 903 S.W.2d at 301; see also Brown v. State, 928 S.W.2d 453, 456 (Tenn. Crim. App.
1996); State v. Phillips, 904 S.W.2d 123, 124 (Tenn. Crim. App. 1995) (“The claims made
in the petition, if true, existed and were available to be pursued since the petitioner’s
conviction.”); Jason Earl Hill v. State, No. E2005-00968-CCA-R3-PC, Hamilton County
(Tenn. Crim. App. Feb. 16, 2006) (holding that due process did not require tolling of the
statute of limitations for a petitioner who was incarcerated in another state, even though
counsel never advised him it was legally impossible for him to have committed the crime to
which he pled guilty), app. denied (Tenn. Sept. 5, 2006). In the present case, the Petitioner
did not allege that the facts or law to support his claim arose after the statute of limitations
began to run. Because he has not alleged a basis for allowing a due process tolling of the
statute of limitations, he is not entitled to considerations of the merits of his petition.

        In consideration of the foregoing and the record as a whole, the judgment of the trial
court is affirmed.


                                              _____________________________________
                                              JOSEPH M. TIPTON, PRESIDING JUDGE




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