        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs August 6, 2013

                  ERIC CHAMBER v. STATE OF TENNESSEE

                  Appeal from the Criminal Court for Shelby County
                   No. 97-03035 - 38   James Lammey, Jr., Judge


                No. W2012-02726-CCA-R3-PC - Filed August 26, 2013


On August 21, 2012, Petitioner, Eric Chamber, filed a pro se petition in the Shelby County
Criminal Court, seeking post-conviction relief from his convictions for two counts of first
degree murder and one count of especially aggravated kidnapping. He was convicted of
these offenses in a jury trial, and the convictions were affirmed on appeal. State v. Eric
Chambers [sic], No. 02C01-9811-CR-00346, 2000 WL 279645 (Tenn. Crim. App. March
6, 2000). Mandate from this court was issued May 25, 2000. Petitioner asserts that his
petition is not barred by the one year statute of limitations because decisions by the United
States Supreme Court in March 2012 established “a constitutional right that was not
recognized as existing at the time of trial.” The trial court summarily dismissed the petition
because it was filed beyond the one year statute of limitations imposed by Tennessee Code
Annotated section 40-30-102(a). Petitioner has appealed, and we affirm the judgment of the
trial court.

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

T HOMAS T. W OODALL, J., delivered the opinion of the Court, in which J OHN E VERETT
W ILLIAMS and C AMILLE R. M CM ULLEN, JJ., joined.

Eric Chamber, Tiptonville, Tennessee, Pro Se.

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

                                         OPINION

      Tennessee Code Annotated section 40-30-102(a) provides in pertinent part that
“Except as provided in [subsection (b)], a person in custody under a sentence of a court of
this state must petition for post-conviction relief . . . within one (1) year of the date of the
final action of the highest state appellate court to which an appeal is taken, . . . or
consideration of the petition shall be barred.”

       Subsection (b), referenced above, contains the following statutory exception to the one
year limitations period which is relevant to this case:

        (b) No court shall have jurisdiction to consider a petition filed after the
        expiration of the limitations period unless:

                (1) The claim in the petition is based upon a final ruling of an
                appellate court establishing a constitutional right that was not
                recognized as existing at the time of trial, if retrospective application
                of that right is required. . . .

        Our supreme court has held that the one year statute of limitations must be tolled in
the limited situations when due process requires such when a petitioner has been denied the
opportunity to present a claim “at a meaningful time and in a meaningful manner.” Burford
v. State, 845 S.W.2d 204, 208 (Tenn. 1992). See also Sands v. State, 903 S.W.2d 297 (Tenn.
1995). We base our decision in this case upon the alleged facts and the theories for relief set
forth by Petitioner in his petition. He asserts that his trial counsel rendered ineffective
assistance of counsel by persuading Petitioner not to accept a negotiated plea offer which
would have resulted in an effective sentence of 25 years. Instead, at trial counsel’s advice,
Petitioner went to trial which resulted in an effective sentence of two consecutive sentences
of life without parole, with an additional consecutive sentence of 25 years.

        The petition, filed in August 2012, was clearly filed outside the one year statute of
limitations as the highest appellate court to which an appeal was taken rendered its decision
in March 2000. Petitioner has captioned his pleading as a petition to reopen a prior post-
conviction proceeding, but he does not identify the docket number, court, or date of filing of
any prior petition for post-conviction relief. The trial court stated in its order dismissing the
petition that Petitioner had never filed a prior petition for post-conviction relief.

       Furthermore, if we treat his proceeding as a petition to reopen a prior post-conviction
proceeding, we would have to dismiss this appeal with prejudice without addressing the
merits. The trial court’s order dismissing the petition was filed with the trial court clerk on
October 2, 2012. However, there is nothing indicating when the clerk sent a copy of the
order to Petitioner. Nevertheless, Petitioner failed to follow the explicit provisions found in
Tennessee Code Annotated section 40-30-117(c) in order to seek an appeal of the denial of
a motion to reopen a post-conviction proceeding. Petitioner specifically relied on Tennessee

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Code Annotated section 40-30-117 to support his assertion that he had grounds to reopen a
prior post-conviction proceeding. However, he sought review in this court by filing a notice
of appeal pursuant to Tennessee Rule of Appellate Procedure 3. That rule does not authorize
an appeal as of right from the denial of a pleading which seeks to reopen a post-conviction
proceeding. Tennessee Code Annotated section 40-30-117(c) states that the unsuccessful
petitioner must file an application to the Court of Criminal Appeals within thirty (30) days
of the trial court’s order, seeking permission to appeal. Petitioner did not follow this
mandatory procedure.

        We will treat the petition as a first petition for post-conviction relief. The ultimate
result is the same - denial of relief to Petitioner in this appeal. Petitioner claims as a basis
for relief that the United States Supreme Court, in Missouri v. Frye, ____ U.S. ____, 132
S.Ct. 1399 (2012) and Lafler v. Cooper, _____ U.S. ____, 132 S.Ct. 1376 (2012) “held that
the Sixth Amendment Right to Effective Assistance of counsel extends to the consideration
of plea offers that lapse or are rejected.” Petitioner further asserts that this ruling established
“a constitutional right that was not recognized as existing at the time of trial.”

        Petitioner is mistaken in his belief that Frye and Cooper established the constitutional
right, relied upon by Petitioner, and that his constitutional right was not recognized at the
time of his trial. The record reflects that the crimes for which Petitioner was convicted
occurred in October 1996, more than two years after our supreme court’s decision in Harris
v. State, 875 S.W.2d 662 (Tenn. 1994). In Harris, the post-conviction petitioner was never
told by his trial counsel, until well after the plea offer had expired, of an offer of an effective
sentence of five years. He proceeded to trial, was convicted, and was sentenced to serve
thirty-five (35) years. At the subsequent post-conviction proceeding, the trial court granted
relief and the court of criminal appeals affirmed the finding of ineffective assistance of
counsel but remanded for further proceedings to determine the appropriate remedy. Our
supreme court affirmed the finding of ineffective assistance of counsel and set forth the
remedy as follows:

                 For the foregoing reasons, the judgment of the trial court and the
         Court of Criminal Appeals on the issue of ineffective assistance of counsel
         during the pre-trial stage of the criminal proceedings is affirmed. The cause
         is remanded to the trial court for a hearing by a new judge in which the
         State is directed to reinstate its original guilty plea offer and negotiate in
         good faith. If accepted by defendant, the trial court may utilize its
         discretion to accept or reject this or any other plea agreement which may be
         negotiated. Otherwise, the case will stand for trial in due course.

Harris, 875 S.W.2d at 667.

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       The constitutional right which Petitioner says entitles him to relief existed at the time
he went to trial and he could have asserted the claim in a timely filed petition for post-
conviction relief. Accordingly, the judgment of the trial court summarily dismissing the
petition is affirmed.


                                                    _________________________________
                                                    THOMAS T. WOODALL, JUDGE




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