       IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                             AT JACKSON               FILED
                         AUGUST SESSION, 1997          October 20, 1997

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

DELVIN L. DONEHUE,               )   C.C.A. NO. 02C01-9701-CR-00034
                                 )
           Appe llant,           )
                                 )    SHELBY COUNTY
                                 )
V.                               )
                                 )    HON . JOHN P. CO LTO N, JR.,
STATE OF TENNESSEE,              )    JUDGE
                                 )
           Appellee.             )    (POST-C ONVIC TION)




FOR THE APPELLANT:               FOR THE APPELLEE:

D. TYLER KELLY                   JOHN KNOX WALKUP
HARDEE, MARTIN & JAYNES          Attorney General & Reporter
P.O. Box 98
Jackson, TN 38302                KENNETH W. RUCKER
                                 Assistant Attorney General
                                 425 Fifth Avenue North
                                 2nd Floor, Cordell Hull Building
                                 Nashville, TN 37243

                                 JOHN W. PIEROTTI
                                 District Attorney General

                                 ALANDA HORNE
                                 Assistant District Attorney General
                                 201 Poplar Street, Suite 301
                                 Memphis, TN 38103



OPINION FILED ________________________

AFFIRMED

THOMAS T. WOODALL, JUDGE
                                 OPINION

             Appe llant, Delvin L. Donehue, appeals as of right from the dismissal

by the Shelby County Criminal Court of his petition for post-conviction relief. The

petition was filed pro se and th e trial co urt dism issed the pe tition without an

evidentiary hearin g. The trial court based its dismissal upon the fact that the

petition was barred by the applicable statute of limitations.          Counsel was

appointed to represent petitioner in this court. We affirm the judgment of the trial

court.



             A brief his tory of th is case is n ecessa ry to address the issues raised

by Appellant. On March 24, 1994, the Shelby County grand jury returned an

indictment against Appellant charging him in Count 1 with the offense of

attempted felony murder committed in the perpetration of robbery, and in Count

2 with the offense of attempted first degree mu rder. Both offens es were alleged

to have oc curred o n the sam e date a nd aga inst the same victim. F rom th is

sparse record, it is also apparent that Appellant was charged with aggravated

robbery and the ft over $10 ,000.00 in separa te indictm ents.



             Pursuant to a negotiated plea agreement on October 4, 1994,

Appellant pled guilty to Coun t 1 of the ind ictmen t wherein he was charge d with

attempted felony m urder and re ceived a sen tence of fifteen (15) ye ars in the

Department of Correction. The judgment entere d the s ame date re flects th at this

sentence was o rdere d to be served concurren tly with sentences for convictions

pursuant to guilty pleas to theft over $10,000.00 and aggravated robbery. Other



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than in the indictment, Count 2 (charging Appellant with attempted first degree

murder of the vic tim), is n ot othe rwise m ention ed in th e reco rd in this appe al.

Also, the sen tences received by App ellant for the conviction s of theft over

$10,00 0.00 an d aggra vated rob bery are n ot set forth in the reco rd.



              On November 4, 1996, Appellant filed in the Criminal Court of Shelby

Coun ty his petition for post-con viction relief. In this petition, Appellant stated that

he was c onfine d at the South Cent ral Co rrection al Fac ility in Clifton [Wayne

Coun ty], Tennessee.        The basis for the request for relief by Appellant is the

decision of our supreme court in State v. Kimbrough, 924 S.W.2d 888 (Tenn.

1996), where in the court ruled “the offense of attempted felony murder does not

exist in Tenn essee .” Kimbrough, 924 S.W .2d at 892 . The decision in Kimbrough

was filed J une 3, 1 996.



              As of May 10, 1995, Appellant had one (1) year from that da te in

which to file a petition for post-conviction relief, or the claim would be barred.

Tenn. Code Ann. § 40-30-202(a). There are three exceptions to this provision,

however, none of the exceptions apply in Appellant’s case. The claim is not

based upon a final ruling of an appellate court establishing a constitutional right

that was not recognized as existing at the time o f Appella nt’s guilty plea. Neither

is the claim based upon new scientific evidence establishing that the Appellant

is actually innocent of the offe nse fo r which he wa s con victed. F inally, the claim

does not involve a previous conviction which has been held to be invalid which

was us ed to en hance the sente nce.




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              Before this court, Appellant presents three issues. He argues that

the trial court erred dismissing the petition because: (1) Ap pellan t’s conviction for

attempted felony murder is void due to the trial court lacking subject matter

jurisdiction; (2) the statute of limitations do es not bar the petition because

Kimbrough established a new constitutional rule which must be applied

retroactively; and (3) the statute of limitations in Appellant’s case violates his right

to due process.



              With regard to his first issue, we disagree that the issue of a lack of

subject matter jurisdiction can be properly litigated in a petition for post-conviction

relief which is tim e barred .      This do es not fall within one of the statutory

exceptions to application of the statute of limitations.               Tennessee Code

Annotated section 40-30-202(b), specifically states that “N o court shall have

jurisdiction to consider a petition filed after [expiration o f the statute of limitations ]”

unless one of the specified excep tions a pplies . Ther efore, th is issue is without

merit.



              Furthermore, we disag ree with the                Appella nt that a new

constitutional right was established in Kimbrough. The ruling in Kimbrough was

based upon statutory construction, and was not resolved upon any constitutional

issue. T herefore , this issue is a lso withou t merit.



              In Appe llant’s third issue, he argues that, under Burford v. State, 845

S.W.2d 204 (Tenn. 1992), and Sands v. State , 903 S.W .2d 297 (Te nn. 1995),

that application of the statu te of limitations in his case violates his rights to due

proces s guara nteed b y the Un ited State s and T ennes see Co nstitutions.

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                In Sands, our supreme court sum mariz ed the basic rule from Burford

to be:

         In certain circums tances , due pro cess pro hibits the strict application
         of the post-conviction statute of limitatio ns to b ar a pe titioner’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 p eriod would no rmally have begun to run.
         In applying the Burford rule to spe cific factual situ ations, courts
         shou ld utilize a three-step process: (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 norm ally hav e com men ced; a nd (3) if the grounds a re
         “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, 903 S.W.2d at 301.



                In Sands, our supreme court held that application of the statute of

limitations in that case did not violate the petitioner’s due process rights even

though in his 1977 trial, the trial cour t purporte dly shifted th e burde n of proo f to

the petition er in viola tion of th e Unite d State s Sup reme Cour t’s hold ing in

Sandstrom v. Montana, 442 U.S. 510, (1979). In do ing so, our sup reme cou rt

found in Sands that the Sandstrom claim of that petitioner was not a “later arising

ground” as set forth by Burford. Our supreme court also noted that in McBee v.

Grant, 763 F.2 d 811 (6 th Cir. 1985), that the S ixth Circuit Court of Appeals stated

that a “Sandstrom-type claim of error in jury in structions was not “novel,” and

shou ld have been objected to by defenda nt in the 1971 trial.” Sands, 903 S.W.2d

at 302.



                In light of the above, we note that o ur court filed its opinion in State

of Tennessee v. Brian Keith Kimbrough on November 2, 1994. In a two-one

                                             -5-
decision, this court held that the “crime of attempted felony murder does not exist

in Tenn essee .” See State of Tennessee v. Brian Keith Kimbrough, No. 02C01-

9308-CR-00182 slip op. at 7, Shelby County (Tenn. Criminal Appeals, Jackson,

Nov. 2, 1994) (Affirmed State v. Kimbrough, 924 S.W.2d 888 (Tenn. 1996). As

noted above, App ellant had one (1) year from May 1, 1995 in which to file a

petition for post-conviction relief. This court’s opinion in Kimbrough, was filed

appro ximate ly 18 m onths before the sta tute of lim itations had ru n in Ap pellan t’s

case. Therefore, the issue set forth in the supreme court’s decision in Kimbrough

was not the type of “later arising issue” con templated b y Burford.



              The judgment of the trial court is affirmed.



                                   ____________________________________
                                   THOMAS T. W OODALL, Judge



CONCUR:



___________________________________
DAVID G. HAYES, Judge


___________________________________
JERRY L. SMITH, Judge




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